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Northwest Environmental Advocates v. United States Environmental Protection Agency

United States District Court, D. Oregon, Portland Division

December 12, 2018


          OPINION & ORDER


         This matter comes before the Court on Plaintiff Northwest Environmental Advocates' (NWEA) Opening Brief on Remedies [158] following this Court's grant of summary judgment to Plaintiff on April 11, 2017. See Order [149], Findings & Recommendations [132, 133]. Defendant EPA filed a Brief in Opposition to Plaintiff's Brief [162]. Intervenor Defendants the State of Oregon [172], Oregon Water Quality Standards Group [168], and The Freshwater Trust (TFT) [170] also filed memoranda in opposition to Plaintiff's Opening Brief on Remedies. Plaintiff filed a consolidated Reply Brief [179].

         On September 11, 2018, the Court heard oral argument on the remedies issues before the Court. At the conclusion of that hearing the Court took the matter under advisement.


         In its Second Amended Complaint [11] Plaintiff brought claims against EPA under the Administrative Procedure Act (APA) as well as under the citizen-suit provisions of the Clean Water Act (CWA) and the Endangered Species Act (ESA) on the basis that EPA unlawfully approved Total Maximum Daily Loads (TMDLs) submitted by the State of Oregon for various river systems around the state.[1] In particular, Plaintiff asserts EPA unlawfully approved the TMDLs submitted by Oregon even though the TMDLs were not designed to meet all applicable water quality standards (WQS) for those water bodies and EPA did not review the superseding WQS contained in the TMDLs as required by § 303(c) of the CWA. 33 U.S.C. § 1313(c). Plaintiffs also alleged EPA violated § 7 of the ESA when it approved the TMDLs without first determining whether such approval may affect species listed as threatened or endangered under the ESA or, if so, consulting with the U.S. Fish & Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) to determine whether the TMDLs will jeopardize any listed species or adversely modify any critical habitat. See 16 U.S.C. § 1536.

         At the heart of Plaintiff's claims is EPA's 2004 approval of new WQS for temperature that apply to numerous river systems and water bodies around Oregon. The 2004 WQS contained numeric temperature criteria that were designed to ensure the temperature of the relevant water bodies met the biological needs of various salmonids at various life stages. The 2004 WQS, however, also contained narrative criteria known as the “natural conditions criteria” (NCC), which provide:

Where the [Oregon Department of Environmental Quality] determines that the natural thermal potential of all or a portion of a water body exceeds the biologically-based criteria . . . the natural thermal potential temperatures supersede the biologically-based criteria, and are deemed to be the applicable temperature criteria for that water body.

         Or. Admin. R. 340-041-028(8) (2015). The NCC allowed for higher water temperatures than the biologically-based criteria in most waterbodies and systems relevant to this case, and in at least some instances the NCC-based temperature criteria were substantially higher than the biologically-based criteria.

         Between 2004 and 2010, the Oregon Department of Environmental Quality submitted temperature TMDLs for numerous river systems and water bodies throughout Oregon for EPA approval. These TMDLs were based on the NCC, and, therefore, in many circumstances allowed for water temperatures that exceeded the temperatures permitted by the biologically-based criteria.

         In 2012, however, a court in this District struck down the NCC because EPA impermissibly adopted it as narrative criteria that supplanted (rather than supplemented) numerical criteria, and because the adoption of the NCC was arbitrary and capricious. Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency, 855 F.Supp.2d 1199, 1207 (D. Or. 2012). Plaintiff then brought this action in which it primarily challenged the approval of the NCC-based temperature TMDLs because they were not designed to effectuate the applicable criteria and because EPA approved the TMDLs without conducting review under § 7 of the ESA.

         As noted, on April 11, 2017, this Court issued Order [149] in which it adopted in part and declined to adopt in part Findings & Recommendation [132] and adopted Findings & Recommendation [133]. By doing so, the Court granted Plaintiff's Motion for Summary Judgment [78] with regard to Plaintiff's Claims One and Two (Plaintiff's CWA claims) and Six and Seven (Plaintiff's ESA claims), [2] and denied Plaintiff's Motion as moot as to Claims Three, Four, and Five.

         The Court also granted EPA's Motion for Voluntary Remand [89] and, as a result, remanded the Willamette Basin mercury TMDL and the Klamath Basin temperature TMDL to EPA, but directed that those TMDLs “should be left in place” pending EPA and Oregon submitting replacement TMDLs within two years of the Court's Order. See Order [149], at 24.


         As a result of the Court's entry of summary judgment, Plaintiff seeks an order (1) vacating the TMDLs relevant to Claim One, (2) directing EPA to disapprove the Claim One TMDLs under § 303(d) of the CWA, (3) requiring EPA to review the NCC under § 303(c) of the CWA, and (4) directing EPA to consult with the USFWS and/or NMFS under § 7 of the ESA regarding whether the NCC will jeopardize any listed species or adversely modify any critical habitat. EPA opposes Plaintiff's request and instead insists the Court should remand the TMDLs to EPA without vacatur and permit EPA and the State of Oregon to resubmit new TMDLs within 12 years of entry of judgment. The State of Oregon joins EPA's position. The Intervenor Defendants also oppose Plaintiff's request for vacatur of the TMDLs, and instead ask the Court to leave the TMDLs in place while the State and EPA undertake the development of new TMDLs.

         I. Vacatur of the NCC-based TMDLs

         Plaintiff first seeks vacatur of the NCC-based TMDLs relevant to Claim One. In Claim One Plaintiff brings a claim under the APA in which it asserts EPA's approvals of the NCC-based TMDLs were arbitrary, capricious, and not in accordance with the CWA or the APA because the TMDLs were not calculated to attain the biologically-based numerical temperature criteria. As noted, the Court granted summary judgment to Plaintiff on Claim One, which applied only to TMDLs approved on or after September 27, 2006.[3]

         The Court “order[s] remand without vacatur only in ‘limited circumstances.'” Pollinator Stewardship Council v. Envtl. Prot. Agency, 806 F.3d 520, 532 (9th Cir. 2015) (quoting Cal. Cmties. Against Toxics v. EPA, 688 F.3d 989, 994 (9th Cir. 2012)). The Court will “leave an invalid rule in place only ‘when equity demands'” that it does so. Id. (quoting Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995)). When determining whether to leave an agency action in place on remand, the Court must “weigh the seriousness of the agency's errors ...

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