Federal Court Invalidates EPA's Approval Of Oregon's Water Quality Standards

Author:Mr Stephen Higgs
Profession:Perkins Coie LLP

In Northwest Environmental Advocates ("NEA") v. U.S. Environmental Protection Agency ("EPA"), the U.S. District Court of Oregon recently invalidated the EPA's decision to approve some of Oregon's water quality standards with implications for nonpoint sources of pollution from farming, forestry, grazing, and related practices. The court also invalidated the EPA's decision to approve Oregon's Natural Conditions Criteria for temperature to protect fish.

The decision could require Oregon to adopt new pollution control regulations that compel changes to farming, forestry and grazing practices on private, state or federal lands. The decision could also require Oregon to revise its watershed protection plans, known as total maximum daily loads, to meet new temperature goals to protect fish, irrespective of whether those goals are naturally attainable. This, in turn, could reduce the amount of heat that industrial and municipal facilities with wastewater discharge permits may introduce into a water body.

Background on Clean Water Act and Key Challenges at Issue

Under the Clean Water Act ("CWA"), states develop and implement water quality standards, which consist of designated uses for water bodies within their jurisdictions and water quality criteria to protect these uses. State standards are subject to EPA review and approval.

These water quality standards set goals for a water body regardless of whether the water is polluted by point or nonpoint sources. A "point source" is a "discernible, confined, and discrete conveyance" like a pipe from a municipal or industrial source that is permitted under a state's wastewater discharger permit program. A "nonpoint source" is any other source of pollution, such as stormwater runoff from agricultural, forested or urban lands.

NEA's Challenge to Oregon's Approach to Nonpoint Source Pollution and Attainment of Water Quality Standards

Under the CWA, states implement water quality standards for nonpoint sources with guidance and funding from the EPA, but the states make the decision on what method is best to control pollution from these sources. In the lawsuit, NEA pushed the frontier of this issue, arguing that the EPA was required, but failed, to review Oregon's laws to control nonpoint source pollution that define what Oregon's nonpoint sources must do, or not do, to comply with Oregon's water quality standards. The court agreed, finding that "it is clear that at least some of the [nonpoint source]...

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