Court Orders EPA to Write
by George Plaven
"The time has come -- the EPA must do so now."
-- Circuit Judge Margaret McKeown
A federal appeals court has ordered the U.S. Environmental Protection Agency to finalize a long-overdue plan to lower water temperatures for endangered fish in the Columbia and Snake rivers.
The ruling by the 9th U.S. Circuit Court of Appeals is likely to intensify the ongoing debate over breaching four Lower Snake River dams in Eastern Washington to increase salmon and steelhead runs.
Environmental and commercial fishing groups sued the EPA in 2017 to protect Columbia Basin salmon and steelhead from dangerously high river temperatures. Water exceeding 68 degrees is considered particularly lethal for the fish, causing them to struggle migrating upstream and leaving them susceptible to disease.
The plaintiffs -- including Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, the Institute for Fisheries Resources and Pacific Coast Federation of Fishermen's Associations -- highlighted the summer of 2015, when an estimated 250,000 Snake River sockeye salmon died before they could spawn.
Brett VandenHeuvel, executive director of Columbia Riverkeeper, said the slack water reservoirs behind hydroelectric dams on the rivers are a major culprit when it comes to heating water.
"The reservoirs have created this hot water problem, and climate change is pushing it over the edge," VandenHeuvel said. "We need solutions quickly, and they need to be big solutions."
Under the Clean Water Act, states are required to identify and issue pollution controls for imperiled waterways. The standards -- known as "Total Maximum Daily Load," or abbreviated TMDL -- can address high levels of specific pollutants, such as nitrogen, or conditions such as water temperature or turbidity.
Oregon and Washington reported in the mid-1990s that numerous segments of the Columbia and Snake rivers failed to meet temperature standards. In 2000, the states entered into an agreement with the EPA to produce a temperature plan for the rivers.
The agency published a draft TMDL in 2003. However, it was never finalized and no progress has been made by either the states or EPA since then.
A Seattle district judge ruled in 2018 that the EPA is required by law to issue the plan. The appeals court upheld that decision on Dec. 20, giving the agency 30 days.
"Because Washington and Oregon have conclusively refused to develop and issue a temperature TMDL for the Columbia and Snake Rivers, the EPA is obligated to act," Circuit Judge Margaret McKeown wrote in her opinion for the appeals court. "The time has come -- the EPA must do so now."
A spokeswoman for the EPA said she the agency cannot comment on pending litigation.
The ruling also notes that water temperatures are projected to rise with increased human activity on the rivers, and that 65% of remaining salmon and steelhead populations face a high risk of extinction.
VandenHeuvel said the groups are looking for a "comprehensive, science-based plan that looks at all of the options," including possible dam removal.
"There should be a serious analysis of removal of Snake River dams, due to their impact on hot water and salmon," he said.
Nic Nelson, executive director of Idaho Rivers United, said hot water in the Lower Snake and Columbia rivers has been a year-in, year-out problem for endangered salmon.
"This victory will create more protections for endangered species that are an indelible part of our Northwest way of life, culture, economy and heritage," Nelson said.
Coincidentally, the court's water temperature ruling came out on the same day as a $750,000 study from Washington Gov. Jay Inslee's office weighing the pros and cons of breaching Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams on the lower Snake River.
The dams not only generate electricity, but provide irrigation water and allow farmers to ship their crops via barges, as opposed to congested highways or railroads. Agriculture and industry groups have argued the cost and disruption to businesses and local communities from breaching dams would be significant.
A spokesman for the Pacific Northwest Waterways Association, which represents ports, businesses and economic interests on the river, said the group is aware of the court ruling, but did not have further comment.
Comment on EPA's "Cold Water Refuge" Plan by bluefish.org, 12/5/19
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