Northwest Environmental Advocates--Programs

NWEA's Lawsuit Over Oregon's Salmon Standards

Over the last five years, Oregon's farmers, grazers, irrigators, and loggers have become increasingly anxious about the federal water pollution clean-up program referred to as "TMDLs" (Total Maximum Daily Loads). In 1996, they were sure they had found the culprit responsible for this specter of required change: Oregon's new water quality standard for temperature. Land users became convinced that the standard was the primary enemy after Oregon issued its 1994/96 list of waters unsafe for people and fish, as required by the TMDL program. Known as the Clean Water Act section 303(d)(1) list, this identification of 869 partial or whole waterbodies in violation of water quality standards represented a significant leap from the state's identification of just 150 impaired waters in 1992. Industry representatives never fully recognized that the increased listings were the result of litigation against the Environmental Protection Agency (EPA) by Northwest Environmental Advocates and Northwest Environmental Defense Center. Land users struck out against the standard because a huge 88 percent B 10,569 of 11,900 miles B of Oregon's polluted waters made the list for temperature violations at a time when the state had just adopted a new temperature standard.

States' water quality standards are the measuring stick against which data on stream conditions are evaluated. Temperature, although it varies throughout the day and the seasons, is a particularly easy and inexpensive way to assess whether streams are hospitable habitat for cold-water species such as salmonids. This parameter is a very convenient measure of the many stresses on salmon that are often not monitored: excess sedimentation and turbidity, insufficient dissolved oxygen, inadequate instream flows, loss of aquatic habitat. High temperatures are an indication of many abuses: that streams have filled up with sediment and become too shallow, that trees and riparian vegetation that should shade the water are gone, that cold groundwater is no longer flowing, that too much water has been removed for out-of-stream uses. Despite the fact that dwindling salmon runs parallel these degraded stream conditions and high water temperatures, land users have argued that salmon can flourish in warmer water than is required by DEQ's standard.

Oregon's 1996 Temperature Standard

The heart of this controversy began with a package of water quality standards produced by Oregon through its 1992-94 Triennial Review of standards, addressing temperature, dissolved oxygen (DO), and pH, among others. The state relied upon a Policy Advisory Committee, composed primarily of industrial interests, to craft a complicated temperature standard that attempted to establish a cooling trend in Oregon's waters while setting the highest possible temperature criteria it could justify. Although Endangered Species Act (ESA) listings of threatened and endangered salmon were small then in comparison to today's burgeoning lists, industry representatives on the Committee were forced to acknowledge the threats posed to salmon. But industry had more concerns about the effect of new standards on their operations than they did in ensuring the protection of fish. Point source industries and municipal sewage treatment plants with NPDES permits to discharge pollution were concerned a cooler temperature standard would severely limit discharges of a pollutant that is difficult to remove. Nonpoint source representatives were concerned that a more protective temperature standard would drive increased controls on logging, farming, and urban development through listing of impaired waters, mandatory TMDL clean-up plans, Senate Bill 1010 water quality management plans for farming, and changes in logging practices through the Oregon Forest Practices Act. Irrigators were also concerned that a new temperature standard might affect how they stored water in reservoirs.

After years of intense debate and meetings, DEQ's Policy Advisory Committee recommended the state adopt a standard composed of several numeric criteria and a substantial amount of narrative language. The numeric criteria are tailored to life cycle stages of salmonids B 551 F (12.8 1 C) for spawning, 641 F (17.8 1 C) for rearing, and 681 F (20 1 C) for migration in the Columbia and Willamette Rivers. Numeric criteria for the protection of bull trout require even colder water, around 45 1 F (7 1 C) for spawning and 501 F (10 1 C) for rearing. While the criteria are more protective than Oregon's previous standard, they are at the high end of the range of acceptable temperatures for the cold-water loving salmonids.

The state submitted this package of "salmon standards" to EPA for its approval or disapproval in 1996. Despite a statutorily-prescribed 90-day time frame for EPA action, the agency dragged its feet. Its inaction was exacerbated by the ESA requirement for consultation with the National Marine Fisheries and U.S. Fish & Wildlife Services. As the first step of the consultation, EPA produced a Biological Assessment. The Assessment concluded that salmon were "likely to be adversely affect[ed]" by the standard which "posed a risk to [the] viability" of most of the salmon stocks listed under the ESA. This conclusion triggered the requirement that the Services issue Biological Opinions.

The ESA Consultation Process

The Services completed their Biological Opinions in July, 1999, three and a half years after DEQ had submitted the standards to EPA for action. NMFS concurred with EPA that the 641 F temperature criterion "likely will not meet the biological requirements" of threatened salmon in Oregon. In fact, NMFS stated that the criterion was "likely to cause lethal and sublethal adverse effects." NMFS also concluded that the protection afforded by the 551 F spawning criterion was inadequate because the state had improperly designated the spawning dates of many stocks. Nonetheless the agency concluded that the new standard would not "jeopardize" the continued existence of salmon, thus giving the go-ahead to EPA for approval. The no-jeopardy opinion was based on Oregon's promise to improve its application of the temperature standard. The package of so-called "conservation measures," offered by DEQ in return for the no-jeopardy finding, are key substantive actions already required, and in many cases long overdue, under the Clean Water Act and EPA's implementing regulations. For example, Oregon committed to determining where the species' life cycle stages take place and to increase its water quality monitoring efforts.

In addition, EPA agreed to conduct a regional review of temperature standards over the next two years, with Oregon agreeing to consider adopting the results, or an equivalent standard, one year later. The regional review, which began in October, 1999, includes representatives of federal agencies and Oregon, Idaho, and Washington, on two committees, policy and technical. Despite having proposed an additional three years of effort, neither EPA nor NMFS promise the regional review will result in anything more protective or sophisticated than Oregon's current standard. Even if it does, Oregon may not have to adopt it. Regardless, the regional review has resurfaced industry's concerns about the temperature standard because the process has been designed to function with minimal public participation. Oregon and EPA have noted that the outcome of the regional review will be subject to full public scrutiny as it is folded into the state's new triennial review of standards.

Therein lies another glitch in the prospects for Oregon's water quality standards to provide complete protection for threatened and endangered salmon. The political pressure on state agencies and the legislature to limit that protection is far greater than when DEQ originally adopted the current temperature standard. In essence, industry and farmers have been given a rare second chance to whittle away at the already dismal protection Oregon's temperature standard provides. The likelihood that the state, or EPA subsequently, will take actions consistent with their own science is remote.

Conclusion

Implementation of the Clean Water Act relies upon states' setting water quality standards that establish the "safe" levels of pollutants in rivers, lakes, and estuaries. The state uses these standards, in turn, to set limits for dischargers, properly regulate land management practices, evaluate the impact of federal projects on water quality, and clean up or maintain water quality sufficient to meet the needs of people, fish, and wildlife. Where species are threatened or endangered, the setting of these standards is all the more critical; they are both the trigger and the goal of restoration actions. Instead of respecting this legal truth, in a cynical political move all three federal agencies signed off on a facially inadequate temperature standard that they themselves say poses a risk to salmon even under ordinary conditions. However, the circumstances in which salmon find themselves is not ordinary, it is dire. After seven years of science and process, with another three to go, the land users may prevail over science and we may very well lose our chance to save the salmon.

NWEA's Notice of Intent to File Lawsuit on Oregon's Water Quality Standards, July, 2000

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