In Northwest Environmental Advocates ("NEA") v. U.S. Environmental Protection Agency ("EPA"), the U.S. District Court of Oregon recently invalidated the EPA's decision to approve some of Oregon's water quality standards with implications for nonpoint sources of pollution from farming, forestry, grazing, and related practices. The court also invalidated the EPA's decision to approve Oregon's Natural Conditions Criteria for temperature to protect fish.
The decision could require Oregon to adopt new pollution control regulations that compel changes to farming, forestry and grazing practices on private, state or federal lands. The decision could also require Oregon to revise its watershed protection plans, known as total maximum daily loads, to meet new temperature goals to protect fish, irrespective of whether those goals are naturally attainable. This, in turn, could reduce the amount of heat that industrial and municipal facilities with wastewater discharge permits may introduce into a water body.
Background on Clean Water Act and Key Challenges at Issue
Under the Clean Water Act ("CWA"), states develop and implement water quality standards, which consist of designated uses for water bodies within their jurisdictions and water quality criteria to protect these uses. State standards are subject to EPA review and approval.
These water quality standards set goals for a water body regardless of whether the water is polluted by point or nonpoint sources. A "point source" is a "discernible, confined, and discrete conveyance" like a pipe from a municipal or industrial source that is permitted under a state's wastewater discharger permit program. A "nonpoint source" is any other source of pollution, such as stormwater runoff from agricultural, forested or urban lands.
NEA's Challenge to Oregon's Approach to Nonpoint Source Pollution and Attainment of Water Quality Standards
Under the CWA, states implement water quality standards for nonpoint sources with guidance and funding from the EPA, but the states make the decision on what method is best to control pollution from these sources. In the lawsuit, NEA pushed the frontier of this issue, arguing that the EPA was required, but failed, to review Oregon's laws to control nonpoint source pollution that define what Oregon's nonpoint sources must do, or not do, to comply with Oregon's water quality standards. The court agreed, finding that "it is clear that at least some of the [nonpoint source] provisions are intrinsically intertwined with the promulgated water quality standards and have the potential to supplant or, at the very least, delay the attainment of those standards."
As an example, the court cited OAR 340–041–0028(12)(e), which provides that forest operations on state and private lands are to comply with water quality standards for temperature by implementing best management practices ("BMPs") established under Oregon's Forest Practices Act and that forest operations that comply with the BMPs are "deemed in compliance with" temperature standards. According to the court, this and other provisions, "exempt various nonpoint sources of heat pollution from complying with water quality standards so long as they maintain the status quo," and "[w]hile the challenged provisions may not meet the EPA's definition of 'water quality standards' those provisions clearly have the potential to interfere with the attainment of water quality standards by effectively supplanting those standards as they apply to nonpoint sources, possibly for years at a time."
The takeaway is that the "EPA was required to review the effects of those provisions [like implementing BMPs for forest operations] to ensure that they do not supplant, delay the implementation of, or in some other way undermine the application of Oregon's standards to the state's waterbodies." This is potentially a very powerful review responsibility that may require the EPA to delve more deeply into Oregon's approach to nonpoint source pollution controls, a process that may also indirectly compel the state to adopt new controls for these sources if the EPA thinks that is required before it can approve revisions to Oregon's water quality standards.
NEA's Challenge to Oregon's "Natural Conditions Criteria" for Temperature as a Water Quality Standard
NEA also challenged the EPA's approval of Oregon's Natural Conditions Criteria ("NCC") found in OAR 340–041–0028(8). Under this regulation, the Oregon Department of Environmental Quality ("DEQ") determines that "the natural thermal potential of all or a portion of a water body exceeds the biologically-based [numeric] criteria, the natural thermal potential temperatures supersede the biologically-based [numeric] criteria, and are deemed to be the applicable temperature criteria for that water body." The EPA approved the NCC because, in some cases, the natural thermal potential for portions of water bodies may have exceeded the numeric criteria for those waters, but nonetheless fish historically thrived in the warmer natural conditions.
NEA argued that the NCC regulation has swallowed the state's numeric criteria, pointing out that Oregon has applied it to all waters where temperature total maximum daily loads ("TMDLs")1have been prepared since its promulgation. The court again sided with NEA, finding that "the NCC supplants rather than supplements the numeric criteria by allowing Oregon to replace the numeric criteria (determined to be protective of salmonids) with a new numeric standard during the TMDL process," and that the NCC is "based on the [flawed] assumption that if historical water temperatures protected salmonids then, the same water temperatures would protect salmonids now." In other words, the improper effect of the NCC is that it "attempts to restore one aspect of Oregon's historical water conditions (higher temperatures in some waterbodies) without restoring the other conditions that allowed salmonids to thrive."
As a result, the DEQ may need to modify its temperature TMDLs for water bodies where the total allowable heat loading to the water body was based on the NCC. This could potentially require reductions in the allowable heat loading to these water bodies, which, in turn, could reduce the amount of heat that point and nonpoint sources may discharge to a water body. It is too early to tell if the DEQ will follow this or an alternative course to address the court's findings.
Next Steps
This Update has focused on the implications of the court's decision on nonpoint source pollution controls and on the NCC for temperature.2 While it remains unclear how the EPA or Oregon will respond to this ruling, unless the decision is appealed, Oregon may revise at least some of its regulations to control nonpoint source pollution if the EPA believes that is required before it will approve revisions to Oregon's water quality standards. The DEQ may also be required to modify the temperature TMDLs it issued in reliance on the NCC.
We will continue to monitor the state and federal response to this decision. Please contact the Perkins Coie attorney with whom you work with any questions.
Footnotes
1.States are required to identify waters within their borders that do not meet water quality standards and establish total maximum daily loads ("TMDLs") for those waters. A TMDL defines the amount of a pollutant (including heat) that can be discharged into a water body from all combined sources to achieve the water quality standards. A TMDL then allocates the permissible amount of the pollutant that can be discharged by point and nonpoint sources.
2.There are other aspects of this decision not discussed in this Update. For instance, NEA also successfully challenged the final decisions of the Fish and Wildlife Service and the National Marine Fisheries Service concluding that the EPA's approval of the standards was not likely to jeopardize fish listed as threatened or endangered under the Endangered Species Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
