Columbia Riverkeeper v. Wheeler

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On November 21, 2018, EPA appealed an Oregon district court’s judgment requiring EPA to issue a total maximum daily load (TMDL) for temperature for the Columbia and lower Snake Rivers. EPA also sought a stay pending appeal from the district court, which on November 8 denied EPA’s motion to extend the court’s 60-day deadline for issuing the TMDL. In its October order setting the deadline, the district court concluded that Washington and Oregon had constructively submitted a “no TMDL” because the states had “clearly and unambiguously indicated” they would not produce a TMDL for the rivers. The district court therefore determined that EPA had failed to undertake its mandatory duty to issue a TMDL. EPA argued in its motion for a stay pending appeal that it was likely to succeed on its appeal because the constructive submission doctrine was an unlawful expansion of the Clean Water Act and, even if lawful, was not properly applied in this case. EPA also noted that it had disapproved the states’ “constructive submission” on November 16, 2018, and that it was not yet in violation of its duty to issue a TMDL. EPA also argued it would be irreparably harmed because being compelled to issue a TMDL could moot its appeal, would impose significant hardship because TMDL preparation typically takes three to five years, and would interfere with EPA’s “ability to engage in a robust TMDL process.” EPA also asserted that the balance of equities and public interest favored a stay pending appeal to allow synchronization and coordination of TMDL preparation and implementation.

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The federal district court for the Western District of Washington found that the U.S. Environmental Protection Agency (EPA) violated the Clean Water Act by failing to issue a total maximum daily load (TMDL) for temperature for the Columbia and lower Snake Rivers. The court noted that native salmon and steelhead populations in the rivers were generally suited to and dependent on cold water temperatures and that migrating fish were particularly vulnerable to warm water temperatures, with upstream migration becoming more difficult as water temperatures approached 68°F and halting altogether at 72-73°F. The court also noted that water temperature in the rivers had consistently exceeded 68°F in recent years and that “[t]emperature issues are projected to worsen as the effects of human activities and climate change continue to increase water temperatures.” The court found that a constructive submission by Washington and Oregon of “no TMDL” had occurred and that EPA had failed to undertake its mandatory duty to issue a temperature TMDL. The court gave EPA 30 days to approve or disapprove the constructive submission (but noted that the court “does not see how the EPA can approve the constructively submitted TMDL consistent with its obligations under the [Clean Water Act]”) and 30 additional days to issue a new TMDL.

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Environmental and conservation groups and a trade association for commercial fishermen filed a lawsuit in the federal district court the Western District of Washington seeking a declaratory judgment that EPA violated the Clean Water Act by failing to issue a total maximum daily load (TMDL) for temperature pollution in the Columbia and Snake Rivers in Oregon and Washington. The plaintiffs also asked the court to order EPA to promptly prepare a temperature TMDL. The complaint alleged that multiple segments of the rivers were on Oregon’s and Washington’s Section 303(d) lists of impaired waters because they failed to meet temperature water quality criteria intended to protect salmon and steelhead spawning, rearing, and migration. The complaint also alleged that the high water temperatures—for which dams were largely responsible—were expected to worsen due to continuing climate change. The complaint asserted that EPA had agreed to issued a temperature TMDL in a 2000 agreement with Oregon and Washington but had subsequently failed to issue a final TMDL. The plaintiffs alleged that the states had “clearly and unambiguously expressed their intent not to prepare or submit” TMDLs, thereby triggering EPA’s duty to issue the TMDL. The plaintiffs also said that failure to issue the temperature TMDL constituted unreasonable delay under the Administrative Procedure Act.