EPA Forced to Set Toxic Standards for Oregon Waters


outflow_160Under the terms of a federal court order signed Friday, the U.S. Environmental Protection Agency (EPA) agreed to develop federal rules for three toxic chemicals in Oregon’s waters. The three metals were called out by the federal fish and wildlife agencies in 2012 as dangerous to threatened and endangered salmon and steelhead.

The lawsuit, filed by the Portland, OR-based Northwest Environmental Advocates (NWEA) last year, challenged EPA’s failure to promulgate the water quality standards after the agency disapproved Oregon’s standards because they failed to protect salmon and steelhead from copper, cadmium, aluminum, and ammonia.

NWEA filed the lawsuit to force federal agencies to identify and adopt limits for toxic pollutants in Oregon waters that are undermining the survival of threatened and endangered species at current allowable levels.

“This is the third lawsuit we have had to file against federal agencies just to get them to do what the Clean Water and Endangered Species Acts require: act in a timely and protective fashion,” said NWEA Executive Director Nina Bell. “These agencies move in an absolutely glacial fashion, as if there is no urgency to protecting species on the verge of extinction. The water quality standards that EPA has agreed to adopt for Oregon waters stem from the state’s having submitted inadequate standards to EPA in 2004, well over a decade ago.”

Copper causes salmon to lose their sense of smell, which is key to their ability to return to spawning habitats. It also causes salmon to lose their instinctive response—of ceasing all movement—to avoid predators. Copper is widely present in sewage discharges, stormwater, and agricultural chemicals.

The court settlement calls for EPA to finalize rules for copper and cadmium by January 2017 and for aluminum by December 2017. Oregon earlier adopted new ammonia standards.

In addition, EPA signed an out-of-court agreement to improve the regulation of discharges containing copper through permits. Given the Oregon Department of Environmental Quality’s significant backlog of un-issued discharge permits, EPA will recommend that the state obtain updated applications for permits where applications are older than five years. EPA also agreed to additional oversight on Oregon’s permits that may involve the three metals during the period prior to EPA’s adoption of final rules and to recommend to Oregon that it improve monitoring and regulation of aluminum discharges to Oregon waters.

Bell stated that , “It is our hope that not only will Oregon’s water quality standards be updated for this century, but that the toxic pollutants that caused the greatest concern to the federal fish experts because of their effects on threatened and endangered salmonids will be better regulated between now and when EPA puts final protections in place.”

Once EPA has disapproved a state’s water quality standards, the Clean Water Act gives a state 90 days in which to make changes. Thereafter, the responsibility for fixing the problem is EPA’s. Over two years had elapsed when NWEA first sued EPA for its failure to adopt federal rules for four toxic standards.

NWEA is represented by Jamie Saul of the Earthrise Law Center at Lewis and Clark Law School. The case was filed in the U.S. District Court for the District of Oregon and assigned the case number 3:15-cv-00663.