Court Ousts Oregon’s Water Pollution Clean-up Plans, Too Hot for Salmon

Yesterday, Earthrise and its co-counsel, on behalf of Northwest Environmental Advocates (NWEA), won a challenge against Oregon’s illegal water temperature standards, which change goals from cold temperatures to hot—and sometimes even lethal for salmon and other imperiled cold-water species. The federal court ruled that the U.S. Environmental Protection Agency’s (EPA) failed to create pollution clean-up goals, called “Total Maximum Daily Loads” or “TMDLs”, that would protect salmon species from temperature pollution in Oregon’s waterways. A TMDL contains limits for contributions of pollution, such as temperature pollution, via discharge permits and polluted runoff from land activities such as logging and farming. High temperatures impair the vast majority of waters that Oregon has identified as having unsafe levels of pollution, and which therefore require a TMDL.

“If EPA had consulted with the expert fish and wildlife agencies…those scientists would have told EPA that fish can’t live in lethally hot water. 

This is why today’s court decision is so important.”

Nina Bell, NWEA Executive Director

The Oregon temperature TMDLs were based on a rule that an earlier court decision threw out in 2012. Oregon had used the illegal rule every time it issued a temperature clean-up plan. The rule had allowed the Oregon Department of Environmental Quality (DEQ) to change state water quality goals for temperature without any federal agency review or agreement, contrary to the requirements of the Clean Water Act. Yesterday’s ruling requires EPA to consult with the expert fish and wildlife agencies before approving a TMDL that effectively changes the applicable water quality standards for temperature.

“In 2003, EPA said that temperatures of 90º F are instantaneously lethal to salmon at exposures under 10 seconds,” said NWEA Executive Director Nina Bell. “But that didn’t stop EPA from approving a DEQ clean-up plan for streams and rivers in the Umpqua Basin that changed Oregon’s water quality standards from 64º F to that same dangerously high temperature of 90º F. If EPA had consulted with the expert fish and wildlife agencies, as the court has just ruled the Endangered Species Act requires, those scientists would have told EPA that fish can’t live in lethally hot water. This is why today’s court decision is so important.”

NWEA is represented by Earthrise Law Center attorney and Lewis & Clark Law School professor, Allison LaPlante, and by Bryan Telegin of Bricklin & Newman, LLP out of Seattle.