State and federal regulators can no longer get away with do-nothing, foot-dragging on setting temperature standards for rivers to protect salmon and steelhead in the era of global warming, a federal appeals court ruled Friday.
Oregon and Washington states, and the US Environmental Protection Agency, by foot-dragging on issuing long-overdue maximum temperature loads for the Columbia and Snake rivers have effectively set the current levels as a “constructive submission” to the US Environmental Protection Agency. That triggers a mandatory EPA review, the 9th US Circuit Court of Appeals ruled.
The purpose of the Clean Water Act “would be dramatically undermined” if the court read into the law “a loophole by which a state, and by extension the EPA, could avoid its statutory obligations by mere refusal to act,” the opinion states.
The decision is significant for protection of salmon and steelhead trout, which are particularly vulnerable to warm water temperatures.
Environmentalists, including Columbia Riverkeeper, sued the EPA, arguing that state failure to issue standards, known as “total maximum daily loads” (TMDL) for river temperatures amounted to constructive submission under the Clean Water Act.
Such a submission of TMDL triggers a mandatory obligation for the EPA to develop and issue TMDL standard for both rivers.
“Were a state allowed to avoid submitting a required TMDL by simply failing to do so, it would defeat the clear objective of the CWA by a mere refusal to act,” wrote Judge Margaret McKeown for the panel.
The ruling clarifies the scope of the “constructive submission” standard, which can be applied more widely on disputed water temperature standards for rivers across the West.
History of Delay
The Columbia and Snake Rivers are home to multiple native species of salmon and steelhead, but several species have gone extinct and 65 percent of the remaining populations face a high risk of extinction, the court said. They depend on cold water for migration and spawning. Water temperature over 68 degrees are dangerous to the fish.
Both sides agree that dams and more than 100 discharge points into the rivers are a primary cause of rising water temperature.
While the two states were decades late, they submitted priority TMDL lists to the EPA in the 1990s but did not develop a TMDL program. Instead, the states entered a deal with the EPA that it would produce a temperature TMDL for the rivers and the states would aid in implementation.
By 2003, the EPA published a draft temperature guide and promised a final TMDL in 90 days for public comment. But then nothing happened. In 2007, EPA said it was still responsible to develop the temperature guide for TMDL under its deal with the states. While Oregon and Washington went on to develop a program for TMDLs for pollutants in other bodies of water, nothing was done on the Columbia and Snake rivers.
A coalition of environmental and fishing groups sued in 2017, claiming state in-action amounted to setting of a standard.
Under the ruling, the EPA has 30 days to develop its TMDL for the Columbia and Snake Rivers.
Case: Columbia Riverkeeper v. Wheeler, No. 18-35982