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Federal Appeals Court Pins EPA with Responsibility for Snake, Columbia River Plan by Eric Barker Lewiston Tribune, December 21, 2019

Environmental agency must address elevated water temperatures on rivers

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower-court ruling Friday that the Environmental Protection Agency must finish a long-stalled plan to address elevated water temperatures in the lower Snake and Columbia rivers that can rise to lethal levels for salmon and steelhead.

In October, District Court Judge Ricardo S. Martinez at Seattle ordered the agency to comply with provisions of the Clean Water Act and issue a Total Maximum Daily Load (also known as a TMDL) report for the rivers. The EPA later appealed that ruling.

The lower Snake and Columbia rivers often warm during the summer months and sometimes reach temperatures harmful, and even fatal, to salmon and steelhead. The heating is exacerbated by dams that slow water movement and create more surface area for solar heating.

The agency was sued by environmental groups, including Idaho Rivers United, Columbia Riverkeeper and Snake River Waterkeeper, that contend breaching one or more of the dams on the lower Snake River may be the only way to reduce water temperatures.

The case dates back to the early 2000s, when Oregon, Washington and Idaho reached an agreement with the EPA in which the agency pledged to take the lead in writing the plan, normally written by states, because of its complicated nature. The process was expected to be complex because of the multiple parties involved -- Oregon, Washington, Idaho, Columbia Basin American Indian tribes and even Canada.

In 2003, the EPA issued a draft plan that sets a daily budget for pollutants entering the river and lays out a long-term plan to solve water-quality problems. The process then stalled and the agency argued it was the states' responsibility to write the plan.

The stalemate dragged on for 17 years until the environmental groups, alarmed by rising water temperatures -- highlighted by the scorching summer of 2015 when hot water and low flows combined to nearly wipe out sockeye runs that year -- sued the agency, contending that because the states have not written a TMDL, the EPA must. The agency argued that it only has to step in when a state wholesale refuses to write such documents for any waters in the state and not individual water bodies.

On Friday, the 9th Circuit's three-judge panel agreed with the plaintiffs and ordered the agency to write a TMDL within 30 days.

“Because of today's victory, EPA will finally write a comprehensive plan to deal with dams' impacts on water temperature and salmon survival,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper.