By Evan Bush
December 20, 2019
The Ninth Circuit Court of Appeals Friday ordered the U.S. Environmental Protection Agency (EPA) to create a plan to limit water temperatures on the Columbia and Snake rivers, which could intensify the debate over breaching or removing the Lower Snake River dams, and others, too.
A three-judge panel sided with the Columbia Riverkeeper in its Clean Water Act lawsuit against the EPA and affirmed a prior ruling in the Western District of Washington, according to an opinion published Friday.
The court’s opinion said the agency “has failed” to create a temperature plan and that the “time has come — the EPA must do so now,” giving the agency 30 days.
The ruling came on the same day that Washington Gov. Jay Inslee’s office released a report on the consequences of potentially breaching or removing the Lower Snake River dams, a hot-button issue at the intersection of conflicts involving power generation, agriculture, orca and salmon recovery and transportation.
As water temperatures rise and stress Columbia River fish, the court ruling could pressure the federal government, and the states bordering the rivers, on dam removal, which would reshape the economy and ecology in much of the Northwest.
“This is a huge victory that requires the federal government to address the hot-water crisis on the Columbia and Snake rivers,” said Brett VandenHeuvel, the executive director of Columbia Riverkeeper. “Salmon need cold water to survive, and as the water gets hotter, it causes disease, it affects respiration and there have been massive die-offs.”
Bill Dunbar, a spokesman for EPA’s Region 10 office in Seattle, said the agency “does not comment on pending litigation.”
The agency could ask for further review in the Ninth Circuit court or appeal to the Supreme Court.
Salmon, once plentiful in the Columbia and Snake, have dwindled for decades in the river system. The construction of the Grand Coulee Dam (and later the Chief Joseph Dam downstream) blocked passage for the fish some 80 years ago, as the dam opened up economic opportunities, providing irrigation and cheaper electricity through hydropower turbines.
Dams downstream offer fish passage for salmon, but restricted stream flow can cause temperatures to soar above the species’ limits.
“When temperatures get above 68 degrees, salmon have problems. The dams are a primary source of increased temperature in the Columbia River,” said Dennis McLerran, an attorney with Cascadia Law Group, who is a former regional administrator for the EPA in the Northwest.
EPA in 2003 began to study the river system’s temperature issues, McLerran said. The agency began to work on a “total maximum daily load” for the rivers, which is essentially a plan to reduce a pollutant, in this case heat, in water. But the agency abandoned the plan during the George W. Bush administration, McLerran said.
When severe drought hit the Northwest in 2015, salmon died en masse in the Columbia River, when infections took hold as river temperatures exceeded 70 degrees.
“The sockeye run was literally turned around by hot water on the Columbia River. We lost hundreds of thousands of sockeye,” VandenHeuvel said, and that inspired the nonprofit to file a lawsuit.
The Ninth Circuit decision in the lawsuit will require the EPA to draw up a new plan to keep the rivers’ temperatures in check.
McLerran said EPA will have to identify the sources contributing to temperature issues and figure out “what are the things that would need to be done to achieve reduced temperatures.” He said climate change, with “hotter temperatures and hotter summers for longer periods of time makes it more difficult.”
Once drafted, states are required to enforce the temperature plans, he said. If they don’t, the EPA is supposed to step in.
“Whether they’re actually implemented is often the source of litigation,” McLerran said of the pollution plans.
There are other means that could help lower temperatures, like further adjusting the river’s flow to prioritize fish over electricity generation, using mechanical chilling technology or adjusting the size of reservoirs.
VandenHeuvel is skeptical.
“The dams cause the hot-water problem, and climate change is pushing it over the edge, so the solutions have to come from changes in the hydro system,” he said. “Some dams need to be removed.”
More than $17 billion has been spent on salmon-recovery efforts in the Northwest. The fish face myriad threats, including habitat loss, warming waters and food chains upended by climate change. The resurgence of seals and sea lions, predators of juvenile salmon, has also made an impact. Southern resident orcas, which frequent Puget Sound and Washington’s coastal waters, rely on chinook salmon to survive. The orcas face additional threats like vessel noise and toxic contaminants.
Some scientists and whale researchers have said the southern residents might not be able to persist if the Lower Snake River dams are not removed. The Bonneville Power Administration (BPA), which sells electricity from the federal network of dams, wants to maintain the dams and believes they’re important for electricity supply and demand.
On the Columbia River, the Yakama and Lummi nations have called for taking down the Bonneville, The Dalles and John Day hydroelectric dams.
“This will certainly highlight their call for that,” McLerran said.
Representatives of both nations could not be reached for comment Friday.
The ramifications of the court decision will spool out over time.
McLerran said he expected EPA to ask the Ninth Circuit for more time to develop its plan.
“The time frame the court has given them, thirty days, is unrealistic,” he said.
Federal dams exist in a complex regulatory space, and it’s not clear if states will ultimately regulate them for temperature.
“The state’s role with federal dams will be part of the conversation,” said Melissa Gildersleeve, who oversees water cleanup for Washington state’s Department of Ecology. “Temperature is a pretty critical issue the state’s facing as we address salmon recovery and look at the plight of the orca.”
In a statement, Inslee said: “The state of Washington looks forward to working with EPA to both protect cold water refuges and identify actions to keep the river at healthy temperatures to help salmon and orcas.”
Meanwhile, the governor and other political leaders face tough choices as they consider breaching the Lower Snake River dams.
The decision will affect irrigation, barge transportation and power generation — keys to the agricultural economy in Central and Eastern Washington.
The governor’s Friday report did not offer recommendations; but outlined deep divides among those who oppose the breach, or removal, of dams, and those who believe it is key to salmon and orca recovery.
The report championed more dialogue and pushed for respect and understanding.
“… Many of the participants remain wary of the cycle of study, lawsuits and court decisions. There is both hope and despair about what comes next and the potential for progress,” the report says.
McLerran said the intersection of so many stakeholders, economic issues and environmental concerns makes questions over the river system’s future about as complicated as it gets.