Posted on March 23, 2012 by Rick Glick
In a 50 page opinion issued February 28, Federal Magistrate Judge Acosta handed EPA and the Oregon Department of Environmental Quality (DEQ) a partial victory in Northwest Environmental Advocates v. EPA et al. The decision upheld EPA’s approval under the federal Clean Water Act of the Oregon DEQ’s numeric temperature water quality standards, while rejecting certain narrative standards. NWEA also challenged the biological opinions issued by the National Marine Fisheries Service and U. S. Fish and Wildlife Service under the Endangered Species Act. The Services concluded that the Oregon temperature and intergravel dissolved oxygen standards would not jeopardize listed salmonid species, and those agencies did not fare as well in the case.
Oregon’s temperature standards were adopted in 1996 and promptly attacked. In 2003 EPA Region 10 adopted its own Temperature Guidance, and Oregon’s temperature standards were reformulated. NWEA again found the revised standards wanting and brought the case at issue. The judge upheld DEQ’s numeric temperature standards, despite evidence that the standards were less than optimal for fish, deferring to the scientific expertise of the government.
The judge found fault, however, with narrative standards that deal with “nonpoint sources” of heat. A point source is a discrete, end-of-pipe discharge to a waterway, whereas nonpoint sources are diffuse, such as runoff from a field. The Clean Water Act regulates point sources through a permit program, while nonpoint source control is mostly aspirational, although it does direct states to develop best management practices and measures for controlling nonpoint source pollution. Under the Oregon narrative standards, a nonpoint source that adopts “best management practices” is deemed to be in compliance.
The court found that this formulation undermines DEQ’s numeric standards as it provides a substitute for actual compliance. The same reasoning was applied to the so-called Natural Conditions Criteria, which provide that compliance is excused if natural conditions exceed standards. The court found that such an exemption supplants otherwise lawful standards.
The court’s objections to the narrative standards notwithstanding, neither the Clean Water Act nor state law authorize direct regulation of nonpoint sources. The narrative standards were Oregon’s attempt to address pollution from nonpoint sources without adopting a new regulatory program. It seems the court reacted to the blanket exemptions provided in the rules, and it further seems that Oregon can revise them and pass muster. The deference shown the agencies on the science suggests that the court will allow some leeway on language used to deal with nonpoint sources and the effects of natural conditions.
No such deference was granted to the federal fisheries services. On remand they will have to prepare a new biological opinion that accounts for Evolutionary Significant Units (i.e. sub-groups of salmonids), potential for recovery, baseline conditions and cumulative effects. Further, the Fish and Wildlife Service was chastised for considering factors other than the best scientific data available in formulating its opinion. That is, FWS seemingly bowed to pressure to support the EPA Temperature Guidance, even though it believed that temperatures for bull trout provided for in the Guidance were not what FWS considered to be optimal.
The net result of the many years of litigation over Oregon’s temperature standards is that Oregon’s approach, and EPA’s approval under the Clean Water Act, were largely validated. Problems with narrative standards should be correctable. Whether on reanalysis the Services find that the standards are protective of listed species, as required under the Endangered Species Act, remains to be seen.