Why Temperature Pollution is Important
The iconic salmon, steelhead, and bull trout of the western states are cold-water species. That is, the depend on cold water for their survival at all life stages—from fertilized eggs sitting in nests called “redds,” to migrating adults that are returning to their natal streams to lay yet more eggs. Warm water temperatures cause these cold-water salmonids a whole host of problems, from changing their metabolism so that they can not successfully eat and avoid predators, to spreading diseases, to outright death. The farming, grazing, logging, water removals, and urban development that have spread across the landscape of Oregon, Washington, and Idaho temperature pollution has warmed the waters of the streams and rivers of these states, often to lethal levels. Because, at its most simple formulation, to keep cool, streams need flow, they need inputs of cold groundwater, and they need shade. Without these and other qualities, streams warm and become a significant part of why so many salmonids in the Northwest are listed as threatened or endangered under the Endangered Species Act (ESA).
Oregon Temperature Pollution Standards Version 1.0
Protecting salmonids from temperature starts with the foundation of the Clean Water Act: the water quality standards established by states and approved by the Environmental Protection Agency (EPA). In Oregon, the state first took on trying to protect ESA-listed salmonids with such standards in 1992, submitting them to EPA for approval in 1996. While the new water quality standards included some improvements, they also included some glaring problems and NWEA took EPA to court. In 2003, a federal district court agreed that these standards were deeply flawed and ordered EPA and Oregon to fix them, as well as to conduct a thorough review under the Endangered Species Act. Among other outcomes, the court held that it was not enough for the Oregon Department of Environmental Quality (DEQ) to say that it would protect spawning salmon at colder temperatures; the court said that it must identify where and when spawning would be protected. The court also struck down Oregon’s plan to allow dischargers areas of rivers that would violate water quality standards, a so-called “alternate mixing zone.”
Oregon Temperature Pollution Standards Version 2.0
In response to the court order, Oregon DEQ tried to improve the temperature standards, with EPA’s assistance through the development of a Regional Temperature Guidance. Together, the agencies did create maps of where and when salmonid species spawn that are now a part of Oregon’s water quality standards. But they chose temperatures to protect the species that were at the high end of the range of optimum temperatures and claimed, without any basis, that waters upstream would have to be colder. They also created a provision—the Natural Conditions Criterion—that would supersede all of those numeric criteria and, without any federal agency review whatsoever, would make them hotter. NWEA returned to court. In 2012, a federal district court struck down the Natural Conditions Criterion (NCC) and told the agencies—once again— to conduct the thorough review of the standards under the Endangered Species Act that was still missing.
NWEA Challenges the Fruit of the Poisonous Tree
The defeat of the NCC provision in Oregon rules that allowed the state to use—of all ironies— pollution clean-up plans to make allowable temperatures hotter was an important win. But it left in place all of those clean-up plans, the Total Maximum Daily Loads (TMDL) that Oregon had used to generate the hot new standards. At its worse, Oregon DEQ had settled on 32.5º C (90º F) as an acceptable temperature in the Umpqua River basin, a temperature that EPA identified caused death in salmon in just a few seconds! But the other temperature TMDLs, while not choosing such hot temperatures, were also not protective of salmonids and were intended to give polluters a free ride. For this reason, in 2012 NWEA returned to federal court to challenge EPA’s approval of Oregon temperature TMDLs. (Read more on the case here.)
Does the Answer to Hot Rivers Lie in Cooler Thermal Refuges?
When Oregon decided that certain rivers—such as the Willamette and Columbia Rivers—were historically naturally at temperatures that cause a host of health problems to salmonids during migration, the agency set the allowable temperature at 20º C and added other requirements. For the Columbia and Snake Rivers, Oregon DEQ required that the natural timing of temperatures be restored. And for all three rivers, it required that sufficiently distributed thermal refuges be identified or created, where salmon could obtain relief from high temperatures. These thermal refugia were required to be only two degrees cooler than the high temperatures and could occur during the night or in locations off the migration channel. EPA concluded that Oregon DEQ would identify the needed thermal refuges during the development of the TMDL clean-up plans. Not surprisingly, Oregon DEQ did not. And, equally not surprising, Oregon’s failure did not stop EPA from approving the temperature TMDLs anyway.
Now, due to a harsh 2015 review by the National Marine Fisheries Service (NMFS) undertaken due to NWEA’s lawsuit, in which the expert fish agency took issue with Oregon DEQ’s refusal to carry out its own rule on thermal refuges, the EPA and other agencies are looking at the situation. Ironically, as EPA began taking thermal refuges more seriously, some Oregon polluters began seeing them as handy locations into which to discharge their warm wastes. NWEA brought this absurd practice to the attention of EPA and it appears to have been halted as counter to the goal of protecting salmon.
What About Pollution Trading?
Although temperature is primarily caused by nonpoint sources, such as farming and logging that remove streamside shade and groundwater flow, cities and industries also contribute warm and hot water in their discharges. Removing temperature from discharges can be done in a variety of ways, some of which are cost-effective and smart. However, sometimes the only way to meet temperature standards is to refrigerate the water prior to discharge, a choice that would consume vast amounts of electricity for no or very little environmental gain. That is why NWEA supports pollution trading for temperature if it is done correctly. Invariably it is not.
