Oregon Water Quality Standards
State water quality standards, developed under the Clean Water Act, are the measuring stick against which data on stream conditions are evaluated. These standards are supposed to be the goals of all water pollution control actions. In Oregon water quality standards for temperature have garnered much attention over the decades due to the needs of the many threatened and endangered cold-water fish in the state and the vast changes on the landscape that have raised stream temperatures. Oregon water quality standards for toxic chemicals have also been a matter of controversy.
Oregon Water Quality Standard for Temperature
Measuring the temperature of streams is key to understanding if water quality supports cold-water fish such as salmon, steelhead, and bull trout. Temperature is also a measure of many other stresses on salmon that are often not monitored: excess sedimentation from erosion, insufficient dissolved oxygen, inadequate instream flows, and loss of aquatic habitat. In this way, high temperatures are an indication of many abuses: that streams have filled up with sediment and become too shallow, that trees and riparian vegetation that should shade the water have been eliminated, that cold groundwater is no longer flowing, that too much water has been removed for out-of-stream uses. And higher temperatures often exacerbate the effects of other pollutants, for example causing lower levels of dissolved oxygen and making ammonia more toxic to fish.
NWEA has been involved with making Oregon’s temperature standards more protective since 1992, when the Oregon Department of Environmental Quality (DEQ) began to revise its existing temperature standards. Completed and submitted to the U.S. Environmental Protection Agency (EPA) for approval in 1996, these standards contained several numeric criteria and a substantial amount of narrative language. The numeric criteria were established for various life cycle stages of salmonids such as spawning, rearing, and migration. The state took the position that as far as where and when the spawning criteria would apply, it would know it when it saw it.
Oregon Water Quality Standards Go to Court
Because temperature is key to salmonid survival, the standards were subject to a consultation between EPA and the federal expert fish and wildlife agencies, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS). The Services completed their final Biological Opinions in 1999, three and a half years after DEQ had submitted the standards to EPA for action. NMFS concluded that various aspects of the standard would result in adverse effects to salmon but gave EPA the go-ahead for approval anyway.
NWEA sued EPA and NMFS in 2001, ultimately obtaining a court ruling in 2003 causing EPA to propose federal replacement of Oregon water quality standards. Ultimately Oregon DEQ finalized its own new set of temperature standards, based largely on a regional guidance developed by EPA Region 10 in 2003, which EPA approved in 2004. Once again, NWEA sued EPA, NMFS, and FWS over the EPA approval and the inadequate Endangered Species Act consultation. In 2012, a federal court once again found largely in NWEA’s favor, ordering: (1) new Biological Opinions by the expert fish and wildlife agencies, (2) the removal of a “Natural Conditions Criterion” provision that allowed Oregon to change allowable temperatures upward without any federal agency approval, and (3) EPA action on a provision that allowed nonpoint sources to claim that so long as they followed management measures they were deemed in compliance with temperature standards. As a result of this decision, the Services issued new Biological Opinions and NWEA challenged EPA’s approval of Oregon temperature clean-up plans (“TMDLs”) in a separate suit filed in 2014.
Oregon Water Quality Standard for Toxics
Like Oregon water standards on temperature, Oregon’s toxic standards are a history of NWEA litigation. Despite a reputation for being progressive, Oregon has engaged in extensive foot-dragging when it comes to protecting people, fish, and wildlife from toxics. Despite Congressional action in 1987 to require states to update toxics standards every three years, Oregon failed to and, by 2002, NWEA had informed EPA that it would sue or Oregon water quality standards.
In 2004, Oregon water quality standards were updated for toxics by the state. But EPA, which is required to act on these submissions within months, failed to act. So, in 2006, NWEA sued EPA to force it to approve or disapprove Oregon’s toxic standards. In 2008, NWEA settled the case, with EPA’s agreeing to consult with expert federal fish and wildlife agencies on the aquatic life criteria and agreeing to take swifter action on the human health toxic criteria.
Knowing that EPA was likely to disapprove Oregon water quality standards for levels of fish consumption that would underestimate the risk of cancer and other diseases, Oregon then agreed to try again. In 2008, it embarked on a project to adopt new human health standards based on a ten-fold increase in the assumptions of fish consumed, to reflect tribal data. But this decision also included a quid pro quo that Oregon would also adopt new rules to relieve polluters of having to control toxics too much, if at all.
By June 2010, under the court order obtained by NWEA, EPA disapproved 103 of Oregon’s human health criteria—15 years after studies showed tribal members consume high levels of fish. Meanwhile, NMFS and FWS were refusing to complete their evaluations of the toxic criteria for the protection of fish and wildlife pursuant to the Endangered Species Act (ESA), thereby holding up EPA action. In 2010, NWEA sued NMFS and FWS to obtain a court order for completion of the reviews. Upon their completion, NMFS concluded that four toxic pollutants jeopardize the continued existence of threatened and endangered salmon and steelhead: ammonia, aluminum, copper, and cadmium. EPA then disapproved Oregon’s criteria for those pollutants.
It took a third NWEA lawsuit, in 2015, by NWEA to force EPA to put new, protective, criteria into place for the four toxic pollutants.