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Friday, June 14, 2024 | Back issues
Courthouse News Service Courthouse News Service

A Victory Seen for Salmon and Trout

PORTLAND, Ore. (CN) - In a victory for environmentalists fighting for salmon, steelhead and bull trout, a federal judge ruled that federal agencies must take a closer look at how industrial pollution affects water temperature in Oregon's rivers and streams.

Northwest Environmental Advocates won part of its battle for better regulation of water temperatures, in a 51-page ruling from U.S. District Judge John V. Acosta.

Acosta ruled this week that the EPA and other agencies need better ways to deal with "nonpoint source pollution."

Under federal standards, "nonpoint source" refers to pollution that comes from industrial runoff, often from logging, agriculture and grazing.

Runoff affects the temperatures of streams and rivers, which in turn affects the populations, migration and spawning habits of important fish such as salmon, steelhead and bull trout, the environmental group said in its 2005 complaint.

States are required to review their water quality standards every 3 years and establish "total maximum daily loads" (TMDLs) of pollutants that the waters can handle without violating the Clean Water Act.

Northwest Environmental Advocates claimed that federal and state agencies do not adequately address nonpoint source pollution in setting water quality standards.

It sued the EPA, the National Marine Fisheries Association and U.S. Fish and Wildlife for violating the Clean Water and Endangered Species act.

The group said the federal agencies do not adequately regulate the state's water quality standards as they relate to nonpoint sources.

The parties presented oral arguments in December 2011, and on Tuesday, Judge Acosta found that the EPA was required to review Oregon's nonpoint source provisions.

Acosta found that the EPA decision to adopt the Oregon Department of Environmental Quality's (DEQ) "natural conditions criteria" was "arbitrary and capricious."

He said that the EPA decision "ignores or otherwise discounts" changes to water temperature and fish population that scientists have observed in Oregon, and that the EPA was unable to present a rational basis for approving the state criteria.

"Despite the fact that Oregon is required to use the best scientific data available to do so, it is a process rife with uncertainty," Acosta wrote.

Nina Bell, executive director of Northwest Environmental Advocates, told Courthouse News that the Oregon Department of Environmental Quality often makes assumptions about water temperature based on industrial runoff.

"When they take a whole basin, they just model parts of it. But they're not modeling every little stream, or even most of the streams. They have to make assumptions about the water temperature that's draining from all those lands, and then they plug that data into their model," Bell said.

Acosta rejected the EPA argument that reviewing state nonpoint source provisions would require it to regulate the nonpoint sources.

"The EPA is not required to decide which method of regulating nonpoint sources is best. There are myriad ways to regulate nonpoint sources and the ultimate disapproval of all or some of Oregon's currently selected methods would not require EPA to draft its own nonpoint source provisions," Acosta wrote.

Bell said the nonpoint sources are the main causes of temperature pollution. She said she believes that part of the ruling "is going to make some significant progress in helping to protect salmon, steelhead and bull trout."

Bell said the logging and agricultural industries are fighting the water quality standards, and Acosta's ruling on regulation of nonpoint sources will have a significant impact beyond this case.

"My optimistic view is that the federal agencies and Oregon DEQ will take this as a wakeup call that they need to take nonpoint sources' impacts on temperature much more seriously than they have," Bell said.

"But there's a huge political push for them to maintain the status quo and protect their vested interest. One can only hope the governmental agencies begin to take note that they're not on the right side of it."

Attorney Daniel Rohlf, a professor at Lewis & Clark Law School in Portland, agreed that the rulings regarding the nonpoint sources could have a wider impact.

"Oregon's water quality standards were the leading application of the federal and state agencies' views on what temperature standards should look like in the Northwest, so I think this ruling's implications will extend beyond the state," Rohlf said. He said the court's finding that the EPA has not properly overseen state agencies could also be significant.

Rohlf said he was pleased that Acosta's ruling emphasized that political considerations should not be made when considering biological impacts.

"Setting the standards at a point that is protective of salmon, steelhead and bull trout could require some interests and industries to incur additional costs," Rohlf said.

"But the law certainly requires - and I think most people in the Pacific Northwest would agree - that it's important for us to balance industrial and economic considerations with protecting our natural heritage.

"It's fortunate that the law doesn't allow us to say 'We just can't afford to protect endangered salmon.'"

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