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Save Our Wild Salmon

August 27, 2019

John Day Dam fish ladderOpposing sides argued before a three-judge panel at the Ninth Circuit Court of Appeals in Seattle whether the U.S. Environmental Protection Agency should complete regulations for temperature, known as Total Maximum Daily Load, for the Snake and Columbia rivers, or whether completing the TMDL is the responsibility of Oregon and Washington.

The attorney representing the EPA said in the appeals court Monday, Aug. 26, that the federal Clean Water Act simply does not impose a duty on the EPA to complete the temperature TMDL: that is a state’s duty.

“There’s no date, no deadline and no duty” for the EPA to complete the TMDL, said Jonathan Brightbill of the Department of Justice, challenged a legal theory developed by a judge, not by statute, known as constructive submission as a faulty way of thinking about this case.

The Western Washington U.S. District Court in Seattle ruled Oct. 17, 2018 that the EPA is violating the federal Clean Water Act by not completing the temperature TMDL in Oregon and Washington waters of the Snake and Columbia rivers and ordered the federal agency to complete one within 30 days of the ruling. Instead, the EPA challenged District Court Judge Ricardo S. Martinez’ Order on Motions for Summary Judgement to the appeals court February 6.

The Circuit Court judges hearing the appeal were Michael Daly Hawkins, M. Margaret McKeown and Jay Bybee.

The original lower court case was filed by Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources in February 23, 2017.

In a joint statement this week, the groups said: “Dams in the lower Columbia and Snake rivers create large, shallow reservoirs that trap the sun’s heat and warm the water. Research by EPA shows that the dams cause the Columbia and Snake rivers to become dangerously hot for salmon and steelhead. We’re pressing EPA for action to help salmon and steelhead survive and recover.”

They say the lawsuit “was sparked by record-high water temperatures in recent summers, including an incident in 2015 when 250,000 adult sockeye salmon died because the Columbia and Snake rivers became too warm. Warm water, caused by large, shallow reservoirs and intensifying climate change, poses and increasingly serious threat to Columbia and Snake rivers’ already imperiled salmon and steelhead.”

The temperature TMDL is a federal Clean Water Act pollution budget designed to protect salmon from hot water in rivers. According to the order, the presence of high temperatures in the Columbia and Snake rivers led Washington and Oregon – both for the first time in 1996 – to place both rivers on their CWA Sec. 303(d) lists of impaired waters.

Washington’s current standards require that temperatures must stay below 60.8-68° Fahrenheit depending upon the time of year, location and fish present. Oregon’s ranges from 55.4° F for some fish spawning areas from the months of October to April, to 68° F year-round.

Martinez in his order outlined past actions by the EPA and states of Oregon, Washington and Idaho, as well as Columbia River tribes, that resulted in a memorandum of understanding Oct. 16, 2000 that said the EPA would produce a temperature TMDL while the states would be responsible for a TMDL for total dissolved gas in the rivers.

The EPA released a draft TMDL for temperature in 2003, but abandoned the effort (it had 30 days after the draft and comment period to release a final) after “disagreements” with other federal agencies over the TMDL.

The constructive submission doctrine was first posed last year by the 4th Circuit Court of Appeals, ruling that if a state, in that case West Virginia, had not submitted a TMDL, then the EPA must step up and provide one.

First, it does recognize that the responsibility for promulgating TMDLs in the first place belongs to the states, according to the online journal Law and the Environment . Once a state submits a TMDL, then the EPA must approve or disapprove it within 30 days. “The constructive submission doctrine was developed to prevent states from avoiding EPA’s displeasure by simply never submitting a list of TMDLs,” the journal says.

“Thus, under the doctrine, a court may interpret a lengthy failure of a state to submit TMDLs as in fact being a ‘constructive submission’ of a list of no TMDLs. If the failure to act is treated as an affirmative act, then EPA’s review clock is triggered and its failure to make a decision on the ‘no’ list is subject to judicial review.”

The problem, the journal says, is that it leaves some gaps that aren’t answered by the statute, precisely because the doctrine doesn’t exist in the statute. The “issue is that no one really knows how little must the state in question do before a court will find that it has made a decision not to submit TMDLs.”

This is an argument made by Brightbill, the Justice Department attorney.

However, Bryan Hurlbutt, Staff Attorney with Advocates for the West, who argued the case before the Ninth Circuit for the plaintiffs, said that the EPA has not been able to point to a single case that rejected constructive submission.

Regardless, he said, the state has not submitted a TMDL and the CWA requires one for every water body and for every pollutant.

“Without the TMDL there have been significant consequences in the Columbia and Snake rivers,” he said, citing 2015 as the year with the highest water temperatures and a year when just 4 percent of Snake River sockeye salmon, listed as endangered under the federal Endangered Species Act, returned to the river. “The EPA has no credible plan to correct this.”

The judges gave no indication how they would rule or when.

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