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For Release
April 12, 2001
For Further Information
Nina Bell (NWEA): 503/295-0490

LAWSUIT FILED AGAINST FEDERAL AGENCIES CHALLENGES OREGON'S TEMPERATURE STANDARD

Saying that water temperatures are making Oregon's streams uninhabitable for threatened and endangered salmon and steelhead, the Portland, OR-based Northwest Environmental Advocates (NWEA) filed a lawsuit Thursday against the U.S. Environmental Protection Agency (EPA) and National Marine Fisheries Service (NMFS). The suit, filed under the federal Clean Water and Endangered Species Acts, challenges the federal agencies' approval of Oregon's water quality standards, including temperature, and asks the court to order the agencies to revise those standards.

"High stream temperatures are causing disease and death to salmon, steelhead, and bull trout throughout Oregon, a fact that should make compliance with water pollution laws a top priority for federal agencies trying to save salmon," said Nina Bell, NWEA's Executive Director. According to Bell, the opposite appears to be true, "Even though scientists at EPA and NMFS concluded Oregon's standards won't protect salmon, the agencies endorsed them anyway."

Warm water temperatures can cause a variety of ill effects to salmon including reproductive failure, decreased resistance to disease, developmental abnormalities, smaller eggs, reduced growth of juveniles, and outright death. The temperature increases are due primarily to solar heating caused by the removal of trees and other vegetation from stream banks. Other significant causes include water removal for irrigation and streams made shallow with sediment from logging, farms, and urban development.

The standards under question in the lawsuit include a 68º F criterion for salmon migration in the Willamette and Columbia Rivers and 64º F for salmon rearing throughout Oregon. The lawsuit challenges many aspects of the standards, including EPA's failure to revise the Columbia River criterion even though it disapproved the same 68º F criterion for the Willamette River. Oregon's Department of Environmental Quality (DEQ) uses the standards in issuing pollution discharge permits, approving the operation of a dams or dredging actions, and developing a clean-up plan for polluted waters. "These standards are not just theoretical," said Bell, "DEQ is using the wrong number every time it issues a permit or takes other actions and the result is Oregon's streams continue to be uninhabitable for salmon."

"It's especially frustrating because it took EPA three years to approve these flawed standards when federal law requires they make the decision in 60 days," Bell said. According to Bell, the agencies will have taken over 10 years to update temperature standards. "This delay is extraordinary considering that updating these standards is a baby step compared to actually reducing stream temperatures," said Bell. She continued, "EPA and the states should read this lawsuit as a signal we won't tolerate continued foot-dragging. Congress established deadlines to prevent just this kind of bureaucratic bungling." The lawsuit also alleges that the EPA has failed to meet an Endangered Species Act requirement to develop a plan to restore salmon.

"Here you have species on the brink of extinction, the state and federal government together spending hundreds of millions of tax dollars each year for their recovery and restoration, their own scientists telling them the waters are too warm for salmon survival and yet the agencies act as if there is no problem. It's like a B horror movies from the 1950s," said Bell.

NWEA is represented by Craig Johnston and Aaron Courtney of the Pacific Environmental Advocacy Center (PEAC) and Bart Brush, an attorney in private practice.

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Summary of NWEA v. EPA and NMFS (Oregon water quality standards)

Claims Against U.S. Environmental Protection Agency (EPA)

EPA disapproved the Willamette mainstem criterion of 68º F in July, 1999 and therefore was required by the Clean Water Act to instruct Oregon DEQ on how to fix it within 90 days or to promulgate a federal replacement an additional 90 days after that but has not taken any action.
EPA's disapproval of the Willamette criterion triggered a mandatory duty for EPA to promulgate a revision for the Columbia mainstem criterion of 68º F.
Oregon's failure to develop an antidegradation implementation plan (to keep clean waters clean and protect polluted waters from further degradation) violates the Clean Water Act and triggered a requirement for EPA to promulgate such a plan.
EPA was required to reject Oregon's 64º F criterion for salmon rearing because scientists and EPA and NMFS found it posed an unacceptable risk to threatened and endangered salmon.
EPA was required to reject Oregon's temperature standard because it includes numerous narrative provisions that undermine its application. One example is that it allows pollution sources to increase by 1º F waters that are already violating the temperature standard.
EPA was required to reject Oregon's temperature standard because it fails to identify the locations and timing of salmon spawning.
EPA was required to reject Oregon's temperature standard for bull trout because Oregon DEQ has not determined the geographic are in which bull trout require protection, including migration corridors between existing populations.
EPA was required to reject Oregon's intergravel dissolved oxygen criterion of 6.0 mg/L because it does not ensure sufficient oxygen for salmonid embryos, particularly where stream temperatures are elevated.
EPA has failed to meet the requirements of the Endangered Species Act to develop and implement a conservation program for the recovery of threatened and endangered salmon.
EPA's approval of Oregon's temperature standard was a violation of the Endangered Species Act requirement to prevent jeopardy to threatened and endangered salmon.

Claims Against National Marine Fisheries Service (NMFS)

NMFS finding that Oregon's temperature criterion of 64º F for salmon rearing would not jeopardize threatened salmon was contrary to the Endangered Species Act.

133 SW 2^nd Ave., Portland, OR 97204-3526 (503) 295-0490 FAX 295-6634