Yesterday, the Northwest Environmental Advocates, a conservationist group, filed a complaint in the District of Oregon against the Environmental Protection Agency and associated individuals claiming that they failed to protect and restore fresh and marine waters in Oregon that were in violation of the Clean Water Act.
There are two relevant programs that the states need to abide by, or the EPA must intervene, the complaint explained. The “impaired waters” program that requires states to identify surface waters that do not meet applicable water quality standards, and the total maximum daily load (TMDL) program that requires states to develop science-based clean-up plans for those waters in a timely fashion.
The Clean Water Act, along with several similar federal laws, requires each state to “review the status of all its waters every two years to determine which waterbodies, if any, are falling short of established goals that ensure those waterbodies are clean enough to support human and ecological uses, such as drinking, swimming, fishing, and wildlife habitats.” Furthermore, the states must designate impaired waters or “water quality limited segments (WQLS),” along with a list with a priority ranking for pollution clean up plans called TMDLs for each waterbody to the EPA. After this, the EPA is required to review each state’s submission and determine if they complied with the law.
On December 31st, 2017, Oregon allegedly submitted an impaired waters list which had data starting from 1998 but did not include 2014 or 2016 reports. In November 2020, the EPA approved this list and called it the “2014-2020” list, “effectively merging the four instances that Oregon should have submitted data into one large submission.” The plaintiffs claimed that this list “is both inadequate and growing rapidly, and the corresponding lack of TMDLs, has resulted in a near collapse of the water pollution regulatory scheme in Oregon.”
As a result, the plaintiffs filed the present lawsuit with counts of two violations of the Clean Water Act and the Administrative Procedures Act.
The plaintiffs are seeking declarations that the EPA acted in an arbitrary and capricious manner that is not in accordance with the Clean Water Act, an order to disapprove Oregon’s 2,467 TDMLs and Oregon’s 2020 TMDL Priority Ranking and Schedule, an order to develop a schedule for the completion of all remaining TMDLs for all existing WQLS in Oregon, attorney’s fees and costs, and other relief.
The plaintiffs are represented by James N. Saul, OSB.
