Case 3:21-cv-01591-JR Document 1 Filed 11/02/21 Page 1 of 29
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`ALLISON LAPLANTE, OSB No. 023614
`BRIDGETT BUSS, OSB No. 204997
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219-7799
`(503) 768-6894, laplante@lclark.edu
`(503) 768-6825, bridgettbuss@lclark.edu
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`PORTLAND DIVISION
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`NORTHWEST ENVIRONMENTAL
`ADVOCATES, a non-profit organization,
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` Plaintiff,
` v.
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`UNITED STATES NATIONAL MARINE
`FISHERIES SERVICE, a United States
`Government Agency, and BARRY THOM, in
`his official capacity as NMFS Regional
`Administrator for the West Coast Region,
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` Defendants.
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`Case No. 3:21-cv-01591
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`(Pursuant to Administrative Procedure Act)
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`COMPLAINT
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`INTRODUCTION
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`Plaintiff Northwest Environmental Advocates (“NWEA”) brings this action for
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`1.
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`declaratory and injunctive relief against the United States National Marine Fisheries Service
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`(“NMFS”) pursuant to the judicial review provision of the Administrative Procedure Act
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`(“APA”), 5 U.S.C. § 702.
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`2.
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`Actions taken by the United States Environmental Protection Agency (“EPA”)
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`related to its proposed approval of water quality standards developed by the State of Oregon
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`under the federal Clean Water Act (“CWA”) for temperature and intragravel dissolved oxygen
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`run the risk of jeopardizing threatened and endangered species that depend upon habitat of the
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`Willamette and Columbia Rivers. Specifically, EPA’s actions impact Lower Columbia River
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`Chinook salmon (“LCR Chinook”), Upper Willamette River Chinook salmon (“UWR
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`Chinook”), Lower Columbia River steelhead (“LCR steelhead”), Middle Columbia River
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`steelhead (“MCR steelhead”), Upper Columbia River steelhead (“UCR steelhead”), and Upper
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`Willamette River steelhead (“UWR steelhead”) (collectively, “imperiled salmon and steelhead”
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`or the “impacted species”)—among the Pacific Northwest’s iconic salmonid species that depend
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`on cold, clean water for their survival.
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`3.
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`Under the federal Endangered Species Act (“ESA”), EPA was required to
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`“consult” with NMFS regarding the impacts to ESA-listed species from EPA’s decision to
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`approve Oregon’s temperature water quality standards. On November 3, 2015, NMFS rendered
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`its biological opinion for EPA’s action. That biological opinion is arbitrary, capricious, and not
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`in accordance with law under section 706(a)(2) of the APA, 5 U.S.C. § 706(2)(A), because it
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`(among other flaws) incorrectly concluded that the salmon and steelhead migration criterion in
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`Oregon’s temperature water quality standard would not jeopardize the imperiled species when
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`COMPLAINT
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`modified by NMFS’s reasonable and prudent alternative (“RPA”) because that RPA was
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`insufficient to impact baseline conditions underlying the initial finding of jeopardy, because it
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`failed to explain how the RPA would avoid jeopardy, and because its finding of no jeopardy
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`relied upon improper factors.
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`4.
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`NWEA seeks an order holding unlawful and setting aside relevant portions of
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`NMFS’s 2015 biological opinion and awarding NWEA its costs of litigation, including its
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`reasonable attorney fees, pursuant to the Equal Access to Justice Act. 28 U.S.C. § 2412(d)(1)(A).
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question jurisdiction), and 5 U.S.C. §§ 701 et seq. (APA judicial review). NWEA has challenged
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`a final agency action as defined by the APA, 5 U.S.C. § 551(13).
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`6.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because a
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`substantial part of the events or omissions giving rise to the claims occurred in Oregon.
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`7.
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`Pursuant to Local Rule 3-2(b), Divisional Venue is proper in this Court because a
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`substantial part of the events and omissions giving rise to NWEA’s claims occurred in
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`Multnomah County.
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`PARTIES
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`8.
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`NWEA is a non-profit environmental organization founded in 1969 and based in
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`Portland, Oregon. NWEA’s mission is to work through advocacy and education to protect and
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`restore water quality and wildlife habitat in the Pacific Northwest and nationwide. NWEA has
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`spent decades working to improve water quality programs and protect threatened and endangered
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`species from water pollution and degraded habitat, in particular water temperatures unsafe for
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`cold-water species including salmon and steelhead.
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`COMPLAINT
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`9.
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`NWEA and its members use and enjoy the waters of Oregon for recreational,
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`scientific, aesthetic, and commercial purposes. NWEA and its members particularly enjoy
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`observing, studying, and photographing endangered and threatened species such as salmon and
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`steelhead. A number of NWEA’s members would like to recreationally fish for salmon and
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`steelhead, but do not currently do so due to the threated and endangered status of these species.
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`10.
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`NWEA and its members are harmed by NMFS’s insufficient biological opinion
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`addressing EPA’s approval of Oregon’s temperature water quality standard. The imperiled
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`salmon and steelhead are particularly sensitive to water temperature, and thus NMFS’s failure to
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`issue a legally and scientifically sound biological opinion and NMFS’s failure to ensure that
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`Oregon’s temperature water quality standard does not jeopardize the impacted species are
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`directly contributing to the continued decline of those species’ populations in Oregon and their
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`enjoyment by NWEA and its members.
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`11.
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`NWEA and its members have experienced, and without the relief sought by this
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`complaint will continue to experience, the impairment of their ability to observe and someday
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`recreationally engage with the imperiled salmon and steelhead species in their native habitat;
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`diminished aesthetic, recreational, and spiritual enjoyment of waters known to provide habitat to
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`those species resulting from their knowledge that the species are in jeopardy of extinction; and
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`other injuries stemming from the increased risk of harm to the imperiled salmon and steelhead
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`species because Oregon’s EPA-approved temperature water quality standard is likely to
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`jeopardize the continued existence of these species and negatively impact their critical habitat
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`absent modification by an RPA or other action that sufficiently mitigates the underlying adverse
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`baseline conditions. Unless the relief requested is granted, NWEA and its members will continue
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`to be adversely affected and irreparably injured by the continued harm to these very important
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`fish.
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`12.
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`NWEA’s injuries are fairly traceable to NMFS’s conduct. NMFS’s issuance of the
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`flawed biological opinion, and NMFS’s resulting failure to ensure against jeopardy to the
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`imperiled salmon and steelhead species or adverse modification to the species’ habitat, has
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`allowed adoption of, without proper mitigation measures in place, less protective water quality
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`standards for temperature than are needed for the species to survive and flourish, thereby
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`exposing the species to excessive high river temperatures; increasing the risk of their continued
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`decline; and impairing NWEA and its members’ aesthetic, recreational, and other interests in the
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`impacted species.
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`13.
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`NWEA’s injuries would be redressed by the relief that NWEA seeks in this case.
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`Vacatur and remand of the unlawful portions of the biological opinion would require NMFS to
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`revise or reissue the biological opinion after fully considering the best available science,
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`potentially resulting the issuance of a sufficiently protective RPA to further protect the species,
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`thereby reducing the temperature pollution threats to Columbia and Willamette River salmon and
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`steelhead and redressing NWEA’s and its members’ injuries.
`14.
`The defendants in this action are the United States National Marine Fisheries
`Service (“NMFS”) and Barry Thom, in his official capacity. NMFS is an agency of the United
`States Department of Commerce responsible for administering the provisions of the Endangered
`Species Act for threatened and endangered marine and anadromous species, including the
`species of threatened and endangered salmon and steelhead that inhabit the Willamette River and
`the Columbia River, its estuary, and the Pacific Ocean. Barry Thom is sued only in his official
`capacity as the NMFS Regional Administrator for the West Coast Region, as successor in
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`COMPLAINT
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`interest of William W. Stelle, Jr., the former Regional Administrator for the West Coast Region
`and responsible official who approved and signed the November 3, 2015 biological opinion
`challenged herein.
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`LEGAL BACKGROUND
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`The Clean Water Act and Water Quality Standards
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`15.
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`Congress adopted amendments to the CWA in 1972 in an effort “to restore and
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`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §
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`1251(a). The CWA establishes an “interim goal of water quality which provides for the
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`protection and propagation of fish, shellfish, and wildlife[.]” Id. § 1251(a)(2).
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`16.
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`To meet these goals, the CWA requires states to identify and adopt water quality
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`standards “[defining] the water quality goals of a water body, or portion thereof, by designating
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`the use or uses to be made of the water and by setting criteria that protect the designated uses.”
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`Id. § 1313(a); 40 C.F.R. § 131.2. One such use includes the “protection and propagation of
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`fish[.]” 40 C.F.R. § 131.2.
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`17.
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`States must review applicable water quality standards at least once every three
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`years, commonly referred to as a “triennial review.” 33 U.S.C. § 1313(c)(1). Water quality
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`standards must be sufficient to “protect the public health or welfare, enhance the quality of
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`water, and serve the purposes of [the CWA].” 33 U.S.C. § 1313(c)(2)(A). The state must submit
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`such water quality standards to EPA for review and subsequent approval or disapproval. Id. §
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`1313(c)(2), (3). A state-developed water quality standard does not become effective until EPA
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`approves it. 40 C.F.R. § 131.21(c).
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`18. Water quality standards must include three elements: (1) one or more designated
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`uses of a waterway; (2) numeric and narrative criteria specifying the water quality conditions,
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`such as maximum amounts of toxic pollutants, maximum temperature levels, and the like, that
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`are necessary to protect the designated uses; and (3) antidegradation policy requirements that
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`ensure that uses dating to 1975 are protected and that high quality waters will be maintained and
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`protected. 33 U.S.C. §§ 1313(c)(2), 1313(d)(4)(B); 40 C.F.R. Part 131, Subpart B. For waters
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`with multiple use designations, the criteria must support the most sensitive use. 40 C.F.R. §
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`131.11(a)(1).
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`19.
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`In addition to serving as the regulatory basis for permitted sources (termed “point
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`sources”) and nonpoint source controls for polluted runoff, water quality standards are the
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`benchmarks by which the quality of a waterbody is measured. In particular, waterbodies that do
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`not meet applicable water quality standards, or cannot meet applicable standards after the
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`imposition of technology-based effluent limitations on point sources, are deemed to be
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`“impaired” and placed on the CWA section 303(d) list. See 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R.
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`§ 130.2(j). States must then develop Total Maximum Daily Loads (“TMDLs”) for all 303(d)-
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`listed waters in order to establish the scientific basis for cleaning up water pollution that exceeds
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`water quality standards.
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`20.
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`A TMDL is the total daily loading of pollutants for a particular waterbody or
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`waterbody segment, and “shall be established at a level necessary to implement the applicable
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`water quality standards with seasonal variation and a margin of safety which takes into account
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`any lack of knowledge concerning the relationship between effluent limitations and water
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`quality.” 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 131.21(c), (d). As with water quality standards,
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`states submit TMDLs to EPA for approval or disapproval. See 33 U.S.C. § 1313(d)(2). In turn,
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`section 303(d) requires that within 30 days after submission EPA must either approve the
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`TMDLs or disapprove them and establish its own TMDLs for the affected waterbodies. Id.
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`The Endangered Species Act
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`21.
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`The ESA applies to all federal agency actions “authorized, funded, or carried out
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`by such agency,” 16 U.S.C. § 1536(a)(2), including EPA’s review and approval of state water
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`quality standards.
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`22.
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`The purpose of the ESA is to “provide a program for the conservation of . . .
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`endangered species and threatened species” and to “provide a means whereby the ecosystems
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`upon which endangered species and threatened species depend may be conserved[.]” 16 U.S.C. §
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`1531(b). One overarching requirement of the ESA is that all federal departments and agencies
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`must “seek to conserve” threatened and endangered species. 16 U.S.C. § 1531(c)(1). The terms
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`“conserve” and “conservation” mean “to use and the use of all methods and procedures which
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`are necessary to bring any endangered species or threatened species to the point at which the
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`measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3).
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`23.
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`The ESA requires the Secretary of Interior or Commerce to list species that the
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`Secretary believes may become extinct in the near future as being either “threatened” or
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`“endangered.” 16 U.S.C. § 1533. A species is “endangered” if it “is in danger of extinction
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`throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species is
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`“threatened” if it “is likely to become an endangered species within the foreseeable future
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`throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).
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`24.
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`Section 7 of the ESA enumerates the substantive and procedural obligations of
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`federal agencies with respect to listed species. 16 U.S.C. § 1536. All federal agencies must
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`ensure that “any action authorized, funded, or carried out by such agency . . . is not likely to
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`jeopardize the continued existence of any endangered species or threatened species or result in
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`the destruction or adverse modification of [critical] habitat of such species[.]” 16 U.S.C. §
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`1536(a)(2).
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`25.
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`The ESA’s implementing regulations define “jeopardy” to an endangered or
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`threatened species as “an action that reasonably would be expected, directly or indirectly, to
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`reduce appreciably the likelihood of both the survival and recovery of a listed species.” 50
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`C.F.R. § 402.02. In meeting the duty to prevent jeopardy, each agency is required to use the
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`“best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).
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`26.
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`Agencies must also ensure that agency actions are not likely to “result in the
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`destruction or adverse modification of [critical] habitat.” Id.; see also 50 C.F.R. § 402.14(g)(4).
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`This is a separate determination from whether the action will jeopardize the continued existence
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`of threatened or endangered species.
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`27.
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`Critical habitat includes areas that are “essential for the conservation of the
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`species[.]” 16 U.S.C. § 1532(5)(A). Federal regulations define the “destruction or adverse
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`modification” of critical habitat as “a direct or indirect alteration that appreciably diminishes the
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`value of critical habitat for the conservation of a listed species.” 50 C.F.R. § 402.02.
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`28. Whenever a federal agency determines that a proposed action may affect one or
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`more listed species, it must consult with NMFS and/or the United States Fish and Wildlife
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`Service (together, “the Services”), depending on the species present. 50 C.F.R. § 402.14(a). A
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`federal agency proposing an action that “may affect” a listed species must prepare and provide to
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`the relevant Service a “biological assessment” of the effects of the proposed action. 16 U.S.C. §
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`1536(a)(2), (c); 50 C.F.R. § 402.14(a).
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`29.
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`The “may affect” threshold that triggers section 7 consultation is low: “any
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`possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the
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`formal consultation requirement.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496
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`(9th Cir. 2011) (citing 51 Fed. Reg. 19,926, 19,949 (June 3, 1986)).
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`30.
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`For those actions that may affect a listed species, the Services must review all
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`information provided by the action agency, as well as any other relevant information, to
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`determine whether the proposed action is likely to jeopardize a listed species or destroy or
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`adversely modify its designated critical habitat. 50 C.F.R. § 402.14(g)–(h). This determination is
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`set forth in a biological opinion from one or both of the Services. 50 C.F.R. § 402.14(h); 16
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`U.S.C. § 1536(b)(3)(A).
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`31.
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`In formulating a biological opinion, each Service must evaluate the “effects of the
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`action” together with “cumulative effects” on the listed species. 50 C.F.R. § 402.14(g)(3)–(4).
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`The Service must also add these effects to the “environmental baseline,” which includes “past
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`and present impacts of all Federal, State, or private actions and other human activities in the
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`action area, the anticipated impacts of all proposed Federal projects in the action area that have
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`already undergone formal or early section 7 consultation, and the impact of State or private
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`actions which are contemporaneous with the consultation in progress.” 50 C.F.R. § 402.14(g)(4);
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`50 C.F.R. § 402.02. Finally, the Service must consider any “future State or private activities, not
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`involving Federal activities, that are reasonably certain to occur within the action area of the
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`Federal action subject to consultation.” 50 C.F.R. § 402.02.
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`32.
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`If, after analyzing these factors, the Service concludes that the proposed action is
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`likely to jeopardize a listed species, or destroy or adversely modify its critical habitat, the Service
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`must identify and describe any reasonable and prudent alternative to the proposed action that it
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`believes would avoid jeopardy and adverse modification. 16 U.S.C. § 1536(b)(3)(A). If the
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`Service believes there is no RPA, the biological opinion must so state. 50 C.F.R. § 402.14(h)(2).
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`33.
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`If the Service finds that either a proposed action “or implementation of any
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`[RPAs] and the resultant incidental take of listed species” will not cause jeopardy or destruction
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`or adverse modification of critical habitat, it will also issue an incidental take statement (“ITS”)
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`for any take of a listed species that is likely to occur. 50 C.F.R. § 402.14(i). The ITS must
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`include “reasonable and prudent measures” (“RPMs”) that the Service finds necessary or
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`appropriate to minimizing likelihood of jeopardy, and must set forth terms and conditions that
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`must be complied with to implement the RPMs. 16 U.S.C. § 1536(b)(4)(C). The ITS must also,
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`among other things, “specif[y] the impact, i.e., the amount or extent, of such incidental taking on
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`the species[.]” 50 C.F.R. § 402.14(i)(1)(i).
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`34.
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`In addition to setting out the procedure for interagency consultation, section 7 of
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`the ESA establishes the duty of all federal agencies to prevent jeopardy of listed species. 16
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`U.S.C. § 1536. Section 7(a)(2) provides the mandate that the “[e]ach federal agency shall . . .
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`insure that any [federal] action . . . is not likely to jeopardize the continued existence of any
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`endangered species or threatened species or result in the destruction or adverse modification of
`[critical] habitat of such species[.]” 16 U.S.C. § 1536(a)(2). “Jeopardy” is not defined within the
`ESA itself, but the ESA implementing regulations clarify that to “[j]eopardize means to engage
`in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the
`likelihood of both the survival and recovery of the species in the wild by reducing the
`reproduction, numbers, or distribution of the species.” 50 C.F.R. § 402.02.
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`35.
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` Section 9 makes it unlawful for any person to “take” an endangered species of
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`fish or wildlife. 16 U.S.C. § 1538(a)(1)(B). All “persons,” including any “any officer, employee,
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`agent, department, or instrumentality of the Federal Government” are subject to the ESA’s take
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`prohibition. 16 U.S.C. § 1532(13).
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`Under the ESA, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill,
`36.
`trap, capture, or collect, or to attempt to engage in any such conduct.” Id. at § 1532(19).
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`However, an action agency’s compliance with the RPMs of an incidental take statement
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`authorizes the “incidental take” of listed species that will occur as a result of the agency’s action.
`16 U.S.C. § 1536(o)(2). “Incidental take” is defined as “takings that result from, but are not the
`purpose of, carrying out an otherwise lawful activity conducted by the Federal agency[.]” 50
`C.F.R. § 402.02.
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`Judicial Review Under the APA
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`37.
`The APA governs judicial review of agency decisions under the ESA that are not
`subject to the ESA’s citizen suit provision. The APA provides a right of judicial review to
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`persons “adversely affected or aggrieved by an agency action within the meaning of a relevant
`statute[.]” 5 U.S.C. § 702. The scope of this review is limited to “final agency action[s] for which
`there is no other adequate remedy in a court.” 5 U.S.C. § 704.
`The APA defines “agency action” to include “the whole or a part of an agency
`38.
`rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[.]” 5
`U.S.C. § 551(13). Although finality is not defined in the APA, the Supreme Court has held that
`an agency action is considered “final” when it marks the “consummation of the agency’s
`decisionmaking process” and the action is one by which “rights or obligations have been
`determined or from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154, 177–78
`(1997). Issuance of a biological opinion by either of the Services marks the consummation of the
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`ESA section 7 consultation process, and is a final agency action subject to review under APA
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`section 702. Id. at 178.
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`39.
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`Under the APA, a reviewing court must set aside an agency action that is
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`“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
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`§ 706(2)(A). Arbitrary and capricious review under the APA requires a court to determine
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`“whether the agency considered the relevant factors and articulated a rational connection
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`between the facts found and the choice made.” Pac. Coast Fed’n of Fishermen’s Ass’n, Inc. v.
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`Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (internal quotations omitted).
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`“A [biological opinion] may also be invalid if it fails to use the best available scientific
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`information as required by 16 U.S.C. § 1536(a)(2).” Id.
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`FACTUAL BACKGROUND
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`Salmonids and the Impact of Temperature
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`40. Many Pacific Northwest salmonid species are listed as threatened or endangered
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`under the ESA. As EPA has noted,
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`Water temperature is a critical aspect of the freshwater habitat of Pacific
`Northwest salmonids. Those salmonids listed as threatened or endangered under
`the ESA and other coldwater salmonids need cold water to survive. Human-
`caused increases in river water temperatures have been identified as a factor in the
`decline of ESA-listed salmonids in the Pacific Northwest.
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`EPA, EPA Region 10 Guidance for Pacific Northwest State and Tribal Temperature
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`Water Quality Standards (April 2003) at Forward (hereinafter “Regional Temperature
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`Guidance”)1. Because cold-water salmonids are highly sensitive to in-stream
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`temperatures, “[w]ater temperatures significantly affect the distribution, health, and
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`survival of native salmonids in the Pacific Northwest.” Id. at 5.
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`1 Available at: https://nepis.epa.gov/Exe/ZyPDF.cgi/P1004IUI.PDF?Dockey=P1004IUI.PDF
`(last visited November 1, 2021).
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`41. Water temperatures at levels unsafe for salmonids are ubiquitous in Oregon and
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`Washington. Forty-four percent of Oregon’s river miles have been identified as not meeting
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`water quality standards—listed on the state’s EPA-approved CWA section 303(d) list—an
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`increase from 33 percent in 2012. See Oregon DEQ, Fact Sheet: 2018/2020 Integrated Report
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`(undated) at 2.2 Of these, “[i]mpairment of the Fish and Aquatic Life use is the most commonly
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`unsupported use. This is largely driven by non-attainment of the temperature criteria.” Id. In
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`Washington, 1,106 waterbody segments are listed on the state’s EPA-approved 303(d) list for
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`violating temperature water quality standards out of a total of 4,548 segments listed, a list last
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`updated in 2012. See Letter from Daniel D. Opalski, Director, Office of Waters and Watersheds,
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`EPA Region 10, to Heather Bartlett, Program Manager, Water Quality Division, Washington
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`Ecology, Re: Approval of Washington State 2012 303(d) List (July 22, 2016).
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`42.
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`A wide range of human impacts have caused in-stream temperatures to rise across
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`the waters of the Pacific Northwest. These include: (1) removal of streamside vegetation that
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`removes shade and makes streams more prone to warming due to erosion’s impacts on the width
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`of streams; (2) water withdrawals; (3) CWA section 402 permitted discharges from cities and
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`industrial facilities, as well unpermitted return flows from irrigation; (4) modifications to the
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`shape and complexity of streams, such as channelizing, straightening, and diking; (5) changes to
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`upland water flows and groundwater; and (6) dams and their reservoirs. See Regional
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`Temperature Guidance at 6–7.
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`43.
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`Numerous studies have documented the impacts of temperature on salmon. See
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`e.g., id. at 7–10. NMFS has attributed specific adverse effects on salmonids to increased
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`2 Available at: https://www.oregon.gov/deq/wq/Documents/2018-2020-IRFactSheet.pdf (last
`visited November 2, 2021).
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`temperatures, including increased juvenile mortality, increased susceptibility and exposure to
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`diseases, impaired ability to avoid predators, altered migration timing, and changes in fish
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`community structure that favor competitors of salmonids. See id. at 7. “NMFS included high
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`water temperatures among risk factors related to the listings under the ESA of the following
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`evolutionarily significant units (ESUs) of chinook salmon: Puget Sound, Lower Columbia River,
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`Snake River spring/summer, and Upper Willamette (Myers et al. 1998). NMFS also noted high
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`water temperatures in its analyses of risk factors related to the ESA listings of Upper Willamette
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`River steelhead and Ozette Lake sockeye.” Id.
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`44. Water temperatures of the Columbia and Snake Rivers have garnered much public
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`attention in recent years. For example, in the summer of 2015, roughly 250,000 adult sockeye
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`salmon died in the Columbia and Snake Rivers because excessively warm water prevented them
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`from successfully migrating upstream.
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`Oregon’s Attempt to Address Temperature Standards in the 1990s
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`45.
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`Oregon began attempting to address the problem of temperature in the early
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`1990s. In its 1992 to 1994 Triennial Review of water quality standards, Oregon developed new
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`standards for temperature, including numeric criteria for different life cycle stages of salmonid
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`species that require different temperatures. For example, salmon and steelhead spawning is a
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`more temperature-sensitive life cycle stage than rearing or migration, so water quality standards
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`for spawning are typically set at cooler temperatures than water quality standards for rearing or
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`migration.
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`46.
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`Oregon completed the revision of its water quality standards and sent them to
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`EPA for approval on July 26, 1996. Among the numeric criteria was a 20℃ (68℉) criterion for
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`salmonid rearing and migration in the Lower Willamette River. On July 7, 1999, NMFS
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`completed a biological opinion that concluded the standards were likely to adversely affect
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`salmonids but, despite its concerns, it also concluded that the standards would not jeopardize the
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`species based on certain promises made by Oregon. On July 22, 1999, EPA disapproved this
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`20℃ criterion, but when the state failed to take action within 90 days of EPA’s disapproval, as
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`required by CWA section 303(c)(3), EPA took no action itself. 33 U.S.C. § 1313(c)(3).
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`47.
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`After three years, in April of 2001, NWEA sued EPA for failing to promptly
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`promulgate the replacement temperature criterion for salmonid rearing and migration in the
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`Lower Willamette River. The district court concluded that EPA was under a nondiscretionary
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`duty to act and that it had failed to act “promptly” as required by the statute. Nw. Envtl.
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`Advocates v. United States EPA (NWEA I), 268 F. Supp. 2d 1255, 1261 (D. Or. 2003).
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`48.
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`In its 1996 temperature standards, Oregon also included a 17.8℃ (64℉) criterion
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`for salmon rearing but it did not indicate where and when this criterion applied. Both EPA and
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`NMFS expressed concern about this missing information. The court in NWEA I held that EPA’s
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`approval of the temperature criteria without the missing information was arbitrary and
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`capricious. Id. at 1267–68. The court also held that the no-jeopardy biological opinion by NMFS
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`was arbitrary and capricious because it relied on state commitments that NMFS failed to
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`demonstrate were likely to occur. Id. at 1273.
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`49.
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`The court then ordered EPA to rescind portions of its 1999 approval of Oregon’s
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`temperature standards and promulgate replacement standards or approve new Oregon standards
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`by March 2, 2004. Id. at 1268.
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`50.
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`During the pendency of NWEA I, EPA Region 10 undertook to develop its
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`Regional Temperature Guidance. The Guidance recommended numeric criteria and various
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`narrative provisions to protect salmonids. See Regional Temperature Guidance at 25 (tables 3, 4).
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`Among the recommended criteria is a 20℃ criterion for salmonid migration that specifies the
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`need to include a narrative criterion to accompany the numeric one. That recommendation was
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`for states to include “a provision to protect and, where feasible, restore the natural thermal
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`regime.” Id. at 25. EPA explained the reason for this additional provision was that “rivers with
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`significant hydrologic alterations (e.g., rivers with dams and reservoirs, water withdrawals,
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`and/or significant river channelization) may experience a loss of temperature diversity in the
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`river, such that maximum temperatures occur for an extended period of time and there is little
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`cold water refugia available for fish to escape maximum temperatures.” Id. at 29.
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`51. With specific reference to the Columbia and Snake Rivers, the Regional
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`Temperature Guidance stated:
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`Although some altered rivers, such as the Columbia and Snake, experience similar
`summer maximum temperatures today as they did h