United States District Court, D. Oregon, Portland Division
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Northwest
Environmental Advocates' (NWEA) Opening Brief on Remedies
 following this Court's grant of summary judgment to
Plaintiff on April 11, 2017. See Order ,
Findings & Recommendations [132, 133]. Defendant EPA
filed a Brief in Opposition to Plaintiff's Brief .
Intervenor Defendants the State of Oregon , Oregon Water
Quality Standards Group , and The Freshwater Trust (TFT)
 also filed memoranda in opposition to Plaintiff's
Opening Brief on Remedies. Plaintiff filed a consolidated
Reply Brief .
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.
Second Amended Complaint  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. 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.
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
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.
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.
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.
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.
noted, on April 11, 2017, this Court issued Order  in
which it adopted in part and declined to adopt in part
Findings & Recommendation  and adopted Findings
& Recommendation . By doing so, the Court granted
Plaintiff's Motion for Summary Judgment  with regard
to Plaintiff's Claims One and Two (Plaintiff's CWA
claims) and Six and Seven (Plaintiff's ESA claims),
denied Plaintiff's Motion as moot as to Claims Three,
Four, and Five.
Court also granted EPA's Motion for Voluntary Remand 
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 ,
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.
Vacatur of the NCC-based TMDLs
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.
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 ...