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EPA Proposes Oregon Water Quality Standards by Mike O'Bryant Columbia Basin Bulletin - October 17, 2003

The U.S. Environmental Protection Agency by court order is going out to the public for comments on the draft water quality standards it has developed for the state of Oregon, but conservation groups are already decrying the proposed standards because of their potential exemptions for federal dams.

The EPA will hold three public meetings next week at a time that also coincides with a similar process begun August 15 by the Oregon Department of Environmental Quality. The parallel processes originated with a lawsuit filed in April 2001 in U.S. District Court by Northwest Environmental Advocates (NWEA) against the EPA and NOAA Fisheries. In March 2003, Judge Ancer L. Haggerty struck down both the EPA's 1999 approval of DEQ's water quality plan (DEQ had submitted the plan to EPA in 1996) and NOAA Fisheries' 1999 no jeopardy biological opinion of that plan.

EPA had approved all of DEQ's water quality plan, with the exception of the water temperature criteria, and the federal agencies had partly based their approval of the plan on Oregon's commitment to participate in an EPA temperature guidance project -- now complete -- designed to determine temperature criteria for Northwest streams. Haggerty ruled that to approve a plan based on future intent was arbitrary and capricious.

"We have parallel processes out there that are very confusing," Mary Lou Soscia of the EPA said of the two processes. Both are aimed at setting water quality criteria for Oregon.

She said that EPA was ordered by the court to go through this process, while Oregon's water quality review is voluntary.

"Oregon's is a little broader than ours," Soscia said. "Ours is restricted to what the judge told us to do."

If Oregon adopts a water quality plan before March 2004 -- DEQ said it would complete its process in December 2003 -- the EPA could accept that plan as final and simply adopt them, Soscia said. In that case, EPA would not need to complete its process.

However, NWEA, American Rivers and Earthjustice today called the EPA proposal a "retreat on the national commitment to clean up polluted waters and would effectively relieve more than 150 federal dams in Oregon from their Clean Water Act responsibilities."

"Oregon has become the first public battleground for the Bush administration's plans to undermine the Clean Water Act across the nation," said Joan Mulhern, senior legislative counsel for Earthjustice. "EPA has been gearing up all year to weaken the Clean Water Act's key program for cleaning up unsafe levels of water pollution and this is their opening salvo."

The conservation groups are referring to the one item included in EPA's proposals that is not included in the Oregon proposal. That is an opportunity for federal dam operators to say that if a dam can't meet the standards for that use at their structure, it allows them to ask for a modification. Conservation groups contend that would weaken water quality standards.

"By making the process for weakening standards mandatory, EPA is completely removing the policy choice of fully protecting water quality and fish from the state of Oregon," said Nina Bell, executive director of NWEA.

Bell had also said -- in September -- that the federal timeline is causing the Oregon process to move ahead too quickly and the results are likely to be unsatisfactory.

Among the other criteria EPA is considering are:

• use designations for critical life stages of certain salmon, trout, and other cold water fish species;
• temperature criteria for salmonids in streams, except for the Columbia River;
• intergravel dissolved oxygen criteria where salmonid spawning is the designated use;

EPA said its 1999 disapproval of Oregon's 20 degree Centrigrade numeric criteria for salmonid rearing in the lower Willamette River was because the state did not justify how that criteria "alone would protect salmonid rearing in view of scientific information to the contrary." As a result, EPA, NOAA Fisheries, the U.S. Fish and Wildlife Service, states and tribes agreed to develop temperature criteria for all life stages of salmonids in Northwest states. The EPA Region 10 Temperature Guidance for Pacific Northwest States and Tribal Temperature Water Quality Standards was completed in April 2003.

In its proposal, EPA temperature standards include:

• bull trout rearing and spawning at 12 degrees Centigrade;
• salmon and steelhead rearing at 16 degrees;
• salmon and trout migration at 18 degrees;
• salmon and steelhead migration in the lower Willamette River, lower John Day River and Snake River at Hells Canyon at 20 degrees, with the thought that those are migration corridors and there will be some refugia from higher temperatures, Soscia said;
• spawning through emergence at 13 degrees.

EPA public hearings are Oct. 22 in Portland, Oct. 23 in Eugene and Oct. 24 in Bend. Comments will be accepted through Nov. 9, 2003.

Related Links:
EPA Region 10: www.epa.gov/r10earth/federaloregonwqs.htm
EPA proposed water quality rule: www.epa.gov/fedrgstr/EPA-WATER/2003/October/Day-10/w25525.htm
Department of Environmental Quality: www.deq.state.or.us
DEQ proposed water quality criteria: www.deq.state.or.us/wq/standards/WQStdsTemp.htm
Northwest Environmental Advocates: www.northwestenvironmentaladvocates.org