Judge orders DEQ to do more to shield salmon streams
U.S. District Court Judge Marco A. Hernández is ordering the Oregon Department of Environmental Quality to do more to protect salmon streams harmed by logging operations.
He ruled in June in a Clean Water lawsuit filed by environmentalists that has been winding through the courts since 2012. The plaintiffs claimed the DEQ is not doing enough to protect salmon threatened by common logging practices, such as the removal of shade trees that cool water temperatures in mountain streams where salmon reside. They said the DEQ sometimes even allows stream temperatures to rise to levels lethal to salmon, a violation of federal environmental laws.
The DEQ says it will abide by the judge's orders, but the timber industry suggests that the water quality of streams in forests is excellent.
"According to the Oregon Water Quality Index, among all land uses, the highest water quality occurs in forested watersheds, including those actively managed for timber production," the Oregon Forest Resources Institute says in reference to data published by the DEQ. The Oregon Legislature created the Portland-based institute by in 1991 "to provide objective information" about the state's forests.
Sara Duncan, a spokeswoman for the Oregon Forest and Industry Council, said the DEQ's water quality index shows no difference in water quality between streams on private and federal forest land.
However, the plaintiffs — the Portland-based group Northwest Environmental Advocates — argue that state regulations governing logging on private lands are much weaker than federal regulations governing logging on federal land.
Nina Bell, executive director of the environmental group, said the purpose of the lawsuit was to force the DEQ to ensure streams are cool enough for fish to survive after a timber harvest, a violation of the Clean Water Act. Because many of Oregon's salmon runs are listed as threatened or endangered species, she said the DEQ may also be violating the Endangered Species Act.
Bell said the DEQ sometimes allows water temperatures in some streams to rise as high as 90° F. Biologists say 90° F is hot enough to kill salmon in an instant.
The group argues that the DEQ actions or inactions threaten the continued existence of salmon, steelhead, and bull trout, all of which require cold water to survive.
Bell cites several Environmental Protection Agency studies to back up claims, including a 2016 report showing 80 percent of impaired stream miles in southwest Oregon are on private forestlands, mainly because they are too warm or are filled with too much sediment. She also cites a 2015 report that said Oregon does not sufficiently protect fish on private land from pollution caused by clearcutting too close to streams, runoff from old logging roads, landslides and sites sprayed with pesticides.
The environmental group is known for using the courts to force the cleanup of polluted rivers. In 1991, it filed a lawsuit forcing the city of Portland to construct a $1.4 billion sewer project that halted the city's practice of allowing filthy sewer overflows to spill into the Willamette River.
The 2012 lawsuit challenged DEQ river clean-up plans known as Total Maximum Daily Loads, or "TMDLs," which are required by the Clean Water Act.
In December 2018, Hernandez threw out the DEQ's TMDL plans because they were developed without first determining whether they would affect threatened or endangered species, a potential violation of the Endangered Species Act.
Hernandez noted that the EPA itself had approved the DEQ's defective plans. He ordered the two agencies to work together to develop a new schedule of actions that would bring the plans into compliance with the law. Then on June 11, Hernandez ordered two agencies to make sure that streams in the worst condition are cleaned up first, such as the Willamette River.
"In typical Oregon DEQ fashion, they wanted to push the Willamette River towards the end of this long process even though that's where most of the pollution dischargers are," said Nina Bell, the group's Executive Director.
Attorneys with Earthrise Law Center, a non-profit legal group based at Lewis & Clark College, represented the plaintiffs, which also included Bill Bakke, a private citizen.
"We're happy that the court soundly rejected the agencies' unreasonable timelines for fixing a problem that is critical to protecting the salmon and steelhead that Oregonians treasure," said Allison LaPlante, Co-Director of Earthrise Law Center. "The judge also made it very clear that he intends to keep the agencies feet to the fire to get this done."
Jennifer Flynt, a DEQ spokeswoman, noted Judge Hernandez' order applies to both the EPA and DEQ. The court gave the two agencies seven years to come up with clean-up plans that "ensure protections for important cold-water species," she said.
The court ordered the two agencies to file a status report every four months through 2027.
Under the court order, the state and federal agencies must complete new TMDL clean-up plans for the Willamette Basin & Molalla Pudding Subbasin (Willamette); Umpqua Basin; Rogue Basin and Middle Rogue Subbasin & and Bear Creek Watershed (Rogue); Willow Creek Subbasin and Walla Walla Subbasin (Umatilla); Miles Creek Subbasin (Middle Columbia/Hood); Lower Grande Ronde Subbasin (Grande Ronde); Malheur Basin; John Day Basin; Hells Canyon (Snake); Applegate Subbasin (Rogue); and Sandy Basin.
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