After seven years, the persistence of NWEA and its lawyers have paid off in the form of a federal court order to replace defective water pollution plans that allow temperatures lethal to salmon across a wide swath of river basins in Oregon. The court order imposes an eight-year schedule on the Oregon Department of Environmental Quality (DEQ) and the U.S. Environmental Protection Agency (EPA) to fix clean-up plans for key river basins such as the Willamette, Umpqua, Rogue, and John Day. NWEA’s lawsuit involves clean-up plans called Total Maximum Daily Loads (“TMDLs”) or “pollution diets” that are required by the Clean Water Act.
NWEA has forced the agencies to comply with the Clean Water Act and that is a huge victory. High temperatures in Oregon’s waters threaten the continued existence of cold-water salmon, steelhead, and bull trout so why was Oregon fighting for hot water in the state’s streams and rivers in the first place? Oregonians should be asking Governor Brown why the Oregon DEQ has been illegally and cynically using TMDL clean-up plans required by the Clean Water Act to legalize temperatures that are lethal to salmon and steelhead. They should also be asking why the state isn’t using these clean-up plans to improve logging practices or stop agricultural pollution, particularly in light of climate change.
The last phase of this lawsuit had to do with the timing of the replacement TMDL clean-up plans. NWEA argued that since DEQ chooses not to use the plans to address pollution sources such as logging, the schedule should be based on how the replacements will affect pollution dischargers with permits. In June of this year, U.S. District Court Judge Marco A. Hernández ordered EPA and Oregon to place a higher priority on completing clean-up plans that affect the greatest number of pollution dischargers regulated by permits, such as cities and industries. Oregon refused, causing the court to repeat its order on August 27, stating, “I meant what I said in June.”
This seven-year lawsuit was preceded by another long and successful case filed by NWEA over EPA’s approval of Oregon’s water quality standards for temperature that allowed this twisted use of the Clean Water Act in the first place. That case took eight years, from 2005 through 2013.
Under the court order, Oregon and EPA must complete new TMDL clean-up plans for the following river basins in five groups: (1) Willamette Basin by July 14, 2023; (2) Mainstem Willamette River & Major Willamette Basin tributaries and the Umpqua Basin by August 30, 2024; (3) Rogue Basin and John Day Basin by October 17, 2025; (4) Miles Creek Subbasin of the Middle Columbia/Hood Basin, Lower Grande Ronde Subbasin of the Grande Ronde Basin, and Snake River/Hells Canyon by December 4, 2026; and (5) Sandy Basin, Malheur Basin, and Willow Creek and Walla Walla Subbasins of the Umatilla Basin by November 28, 2027.
On September 30, 2019, under an earlier court order in this case, EPA approved Oregon’s replacement clean-up plan for temperature pollution in the Klamath basin. Under the same order, Oregon and EPA must replace a deficient clean-up plan for mercury contamination in the Willamette River basin by November 29, 2019.
NWEA is represented in this lawsuit by Bryan Telegin of Bricklin & Newman, LLP and Allison LaPlante of Earthrise Law Center at Lewis and Clark Law School.
