PORTLAND, Ore. (CN) – For over two decades, Oregon has regulated thermal pollution in rivers and streams using illegal standards. But at a hearing Tuesday, the federal and state governments said it will take another 12 years to come up with revised standards to protect threatened and endangered fish.
Northwest Environmental Advocates sued the U.S. Environmental Protection Agency in 2012, claiming it should not have approved rules proposed by the Oregon Department of Environmental Quality to regulate water temperature of rivers and streams. In some cases, according to the complaint, Oregon’s proposed standards allowed water temperatures to soar above the level that causes serious harm to threatened and endangered salmon, steelhead and bull trout.
Salmon cannot survive water temperatures above 69 degrees Fahrenheit, while threatened bull trout need water between 59 and 64 degrees, according to data from U.S. Fish & Wildlife. But the state’s water quality standards set the limit at 83 degrees for the South Umpqua River, 81 degrees for the John Day River and 80 degrees for Thomas Creek, a tributary of the South Santiam which feeds into the Willamette River.
In 2017, U.S. District Judge Marco Hernandez ruled the EPA had violated the Endangered Species Act by approving the rules without first consulting with U.S. Fish & Wildlife or the National Oceanic and Atmospheric Administration or preparing its own biological assessment to make sure the rules would not harm imperiled fish.
On Tuesday, the parties debated the best course of action to create new rules to protect fish and avoid further litigation.
Arguing on behalf of Northwest Environmental Advocates, attorney Bryan Telegin said Hernandez should either toss out the current rules and order the state to propose new ones or order the EPA to conduct the review it should have done in the first place.
Telegin railed against the notion it will take over a decade more to produce standards that comply with the Endangered Species Act and the Clean Water Act.
“It has been decades,” Telegin told the court. “It is time Oregon had a water quality standard that is defensible.”
Kent Hanson, lawyer for the EPA, agreed the current rules need work. But he said tossing them out altogether will leave fish entirely unprotected for the 12 years it will take to come up with new ones.
He also defended the decision to approve rules setting baseline river temperatures above what fish can live in.
“EPA is in the business of regulating anthropogenic sources of pollution,” Hanson said. “EPA does not issue permits to Mother Nature.”
He said Telegin had presented no evidence showing new rules could be written more quickly.
On behalf of the state of Oregon, attorney Scott Kaplan said 12 years is a reasonable amount of time to come up with a better set of standards.
“This is complicated scientific stuff,” Kaplan told Hernandez. “It’s a public involvement process and a scientific process. Together, these two things really will take 12 years.”
Hernandez agreed that it was complicated.
“I was hoping you’d make my job easier today,” he said. “You have failed.”
Hernandez said he would take the issue under advisement, and added that whatever judgment he ultimately imposes will likely come with the stipulation that either he or a magistrate judge oversees the process ahead.
“The court is inclined to remain engaged,” he said, “in order to monitor progress.”
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