IRU and allies win Clean Water Act suit for salmon

A federal court ruled today in favor of conservation and trade groups that sued to force the U.S. Environmental Protection Agency (EPA) to protect Columbia Basin salmon and steelhead from dangerously warm river temperatures.

The lawsuit was sparked by record-high water temperatures in recent years, including an incident in 2015 where 250,000 adult sockeye salmon died when the Columbia and Snake rivers became too warm. This year, hot water in the lower Snake River again killed many endangered Snake River sockeye.

“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.

Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources brought the suit.

“EPA has failed to undertake its mandatory duty to issue a temperature TMDL,” the court found.

The temperature TMDL, or Total Maximum Daily Load, is a Clean Water Act pollution budget designed to protect salmon from hot water in the Columbia and Snake rivers. EPA nearly completed the temperature TMDL in 2003, but the Army Corps pressured EPA into abandoning the effort. The law gives the EPA 60 days to issue the TMDL.

Following are more comments from organizations that filed suit:

• “Our members’ livelihoods depend on healthy salmon runs,” said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources. “It’s simply unacceptable to let hot water kill otherwise-healthy adult salmon before they can spawn. We’re glad EPA will finally do its job.”

• "Hot water in the lower Snake and Columbia rivers has been a year-in, year-out problem for endangered salmon,” said Kevin Lewis, executive director of Idaho Rivers United. “This victory will create more protections for endangered species that are an indelible part of our northwest way of life, culture, economy and heritage."

• "This decision represents a clear victory for critically endangered salmon and steelhead populations,” said Snake River Waterkeeper Buck Ryan. “EPA must now act to protect what remains of the once-magnificent anadromous fisheries on the Snake, Clearwater, and Salmon rivers by ensuring water temperatures stay cool enough to allow passage for spawning."

The law firm Advocates for the West represents these groups. Advocates for the West litigates to protect western public lands, waters, and wildlife.

Resources:

• Temperature TMDL Decision, October 17, 2018

Background: The Clean Water Act bans Columbia River temperatures over 68 degrees Fahrenheit. When water temperatures reach the 70s, salmon die. In 2003, the EPA conducted a study to understand the causes of hot water in the Columbia and Snake rivers and began developing a legally enforceable plan to fix the problem. But dam operators objected and the plan was shelved. Why? EPA found that dams are the main cause of temperature problems.

What is the law? The Clean Water Act prohibits temperature in the Columbia River from exceeding 68 degrees. The Endangered Species Act is designed to protect critically imperiled species from extinction. But the government agencies in charge of the Columbia and Snake river dams aren’t obeying the law. Now, EPA is legally obligated to write a plan to bring the rivers’ temperature back in line with the needs of salmon—and the requirements of the Clean Water Act.

People who fish and other river users aren’t the only ones seeing the temperature problem:

The EPA itself said: “The need to lower water temperatures becomes more critical as the Pacific Northwest Region continues to address . . . climate change.”

The Fish Passage Center, an independent federal research group, observed: “under a climate change scenario, the long-recognized and largely unaddressed problem of high water temperatures in the [Columbia and Snake rivers] becomes an ever-increasing threat to the survival of salmon.”