Oregon Water Quality Criteria for Temperature

Transcription

1 Oregon Water Quality Criteria for Temperature MICHAEL CAMPBELL, STOEL RIVES LLP 2014 NORTHWEST ENVIRONMENTAL CONFERENCE Topics Oregon s complex water quality criteria for temperature and how they are implemented Why Oregon s natural conditions criteria were disapproved and the consequences of that disapproval Potential responses to the disapproval December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 2 1

2 Water Quality Standards under the Clean Water Act (CWA) States must establish water quality standards, which include: Designated uses (e.g., drinking water, fish and other aquatic life, fishing, irrigation) Water quality criteria sufficient to protect the designated uses Standards are not effective until approved by EPA EPA approval may require consultation with the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS) under section 7 of the Endangered Species Act (ESA) if listed species may be affected If EPA disapproves a standard (or determines that an existing approved standard is deficient), EPA must promulgate a revised standard for the state unless The state corrects the deficiency or The state s remaining standards are sufficient to protect designated uses December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 3 Oregon Fish and Aquatic Life Use Designations All Oregon surface waters are designated for fish & aquatic life Most surface waters include sub-designations for specific types of fish and may include specific fish life stages, e.g.: Bull trout spawning & juvenile rearing Salmon & steelhead migration corridor Lahontan cutthroat trout Borax Lake chub December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 4 2

3 Example: Designated Fish & Aquatic Life Uses in the Lower Hood River Oregon rules include a table of designated uses for each basin Fish & aquatic life is designated for all basin streams Tables may refer to additional tables or figures for additional fish use designations Figure 160A: Lower Hood River is designated as Core Cold Water Habitat Figure 160B: Lower Hood River is also designated as Salmon and Steelhead Spawning from October 1 through June 15 December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 5 December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 6 3

4 December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 7 Water Quality Criteria for Temperature Because most aquatic life, and particularly salmonids, are sensitive to water temperature, water quality criteria for temperature are needed to protect these uses Oregon s temperature criteria consist of: Numeric temperature criteria Narrative criteria Exceptions and implementation provisions Human use allowances (de minimis exceptions) December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 8 4

5 Numeric Temperature Criteria Numeric temperature criteria Maximum allowable water temperatures Expressed as 7-day moving average of daily maximum temperatures (7-DAM) Numeric criteria for specific use designations: Bull trout spawning and juvenile rearing: 12.0 C (53.6 F) Salmon and steelhead spawning: 13.0 C (55.4 F) Core cold water habitat: 16.0 C (60.8 F) Salmon and trout rearing and migration: 18.0 C (64.4 F) Migration corridor: 20.0 C (68.0 F) (+ cold water refugia + natural seasonal thermal pattern) Lahontan cutthroat trout or redband trout: 20.0 C (68.0 F) December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 9 Narrative Temperature Criteria No more than a 0.3 C (0.54 F) increase is allowed above the natural condition unless a greater increase would not reasonably be expected to adversely affect fish or other aquatic life Natural lakes, oceans, bays Waters designated for cool water species but not salmonids (e.g., sturgeon, lamprey, suckers, chub, sculpins) Waters designated for the Borax Lake chub may not be cooled more than 0.3 C (0.54 F) General narrative water quality criterion requires water quality to be managed to protect the designated beneficial uses December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 10 5

6 Natural Conditions Narrative Criterion (NTC) If the Oregon Department of Environmental Quality (DEQ) determines that the natural thermal potential of a waterbody exceeds the applicable numeric criteria, the natural thermal potential temperatures... are deemed to be the applicable temperature criteria E.g., if the numeric criterion is 16.0 C, but DEQ determines that the natural thermal potential is 17.5 C, the NTC automatically increases the applicable criterion to 17.5 C pursuant to the NTC EPA approved the NTC in 2004, but disapproved it in 2013 in response to an adverse federal court decision December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 11 Protecting Cold Water Criteria If existing summer temperatures are colder than the applicable numeric criterion, they may not be warmed by more than 0.3 C (as a 7-DAM). This provision does not apply if: No ESA-listed salmonids currently inhabit the waterbody; The waterbody is not designated as critical habitat for ESA-listed species; and The colder water is not needed to ensure that downstream temperatures meet applicable temperature criteria In addition, the criteria limit warming by point sources that discharge into or above salmon and steelhead spawning waters that are colder than the spawning criterion December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 12 6

7 Thermal Plume Criteria Discharges also must meet the following criteria within any mixing zone authorized around the discharge point: Discharges may not cause temperatures in active salmonid spawning areas to exceed 13.0 C (55.4 F) (salmon and steelhead) or 9 C (48 F) (bull trout) Fish may not be exposed to temperatures 32.0 C (89.6 F) for 2 seconds Fish may not be exposed to temperatures 25.0 C (77.0 F) across 5% of the cross-section of the 7Q10 low flow Fish may not be exposed to temperatures 21.0 C (69.8 F) across 25% of the cross-section of the 7Q10 low flow December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 13 Exceptions and Implementation Provisions The criteria do not apply when an exceedance is attributable to: Daily maximum air temperatures that exceed the 90 th percentile of annual maximum 7-day average maximum air temperatures Stream flows that are less than the 7Q10 low flow National Pollutant Discharge Elimination System (NPDES) permits must include conditions that ensure compliance with the applicable criteria DEQ may require non-npdes sources (e.g., hydroelectric projects) other than forestry and agriculture to develop and implement a temperature management plan to achieve the criteria The temperature effects of non-npdes forestry and agriculture sources are regulated the Oregon Departments of Forestry and Agriculture December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 14 7

8 Human Use Allowances The criteria allow a 0.3 C de minimis human temperature increase when the applicable temperature criteria are not met Before the completion of a temperature total maximum daily load (TMDL) or other cumulative effects analysis, each NPDES source may warm the waterbody by 0.3 C above the applicable criteria after mixing with either 25% of the stream flow or The source s temperature mixing zone, whichever is more restrictive After a TMDL or other cumulative effects analysis, all NPDES and other sources may cumulatively increase the waterbody temperature by no more than 0.3 C above the applicable criteria after complete mixing in the waterbody and at the point of maximum impact December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 15 TMDLs States must list waters that do not meet standards (the 303(d) list) and develop TMDLs for the listed waters Both the 303(d) list and TMDLs must be approved by EPA If EPA disapproves the list or a TMDL, EPA must adopt the list or TMDL TMDL = WLAs + LAs + Reserve + MOS TMDL = maximum daily pollutant loading that will achieve the water quality standard WLAs = enforceable individual wasteload allocations to NPDES sources LAs = federally unenforceable load allocations attributed to nonpoint sources and nature Reserve = unallocated loading capacity MOS = margin of safety December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 16 8

9 Oregon Temperature TMDLs Established for entire basins or subbasins Because many streams naturally exceed numeric temperature criteria, all basin or subbasin TMDLs have been based on the (now disapproved) NTC Where the NTC has increased the applicable criterion to the natural temperature, WLAs, LAs, and any reserve together cannot allow warming in excess of the 0.3 C human use allowance (MOS is usually implicit in conservative calculations or assumptions) WLAs + LAs + Reserve = 0.3 C December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 17 Typical Oregon Thermal TMDL Allocations THERMAL ALLOCATIONS (AS TEMPERATURE IN C) 20.5 Num. Criterion (18 ) Nat. Temp. Criterion (20 ) Sum of WLAs (0.2 ) Sum of LAs (0.05 ) Reserve (0.05 ) Thermal Allocations December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 18 9

10 NPDES Permit Limits for Temperature If a temperature TMDL WLA applies, an NPDES permit must include limits that are consistent with the WLA Typically, permit limits based on a WLA will be expressed as an excess thermal load limit in Kcal/day, as a 7-day moving average of daily maximum excess thermal loads A discharge at the applicable temperature criterion results in an excess thermal load of zero In addition, the permit must include limits to implement any temperature criteria not implemented by an applicable WLA, including: Thermal plume criteria Other applicable numeric or narrative criteria that may not be addressed by the TMDL, such as seasonal spawning criteria, cold water protection criteria, or more stringent criteria adopted since the TMDL was issued December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 19 Challenges to Oregon s Temperature Standards Oregon adopted revised temperature standards in 2003, which EPA approved in 2004 In 2005, Northwest Environmental Advocates (NWEA) challenged EPA s approval in the U.S. District Court for Oregon In 2012, the court upheld EPA s approval of the numeric temperature criteria and use designations, but held that EPA s approval of the NTC was unlawful NMFS and the USFWS biological opinions on the standards were inconsistent with the ESA; the court ordered the agencies to issue revised opinions (currently due in January 2015 (NMFS) and March 2015 (USFWS)) December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 20 10

11 Why Did the Court Hold that EPA s Approval of the NTC Was Unlawful? DEQ s determination of natural temperatures under the NTC supplants otherwise applicable criteria without complying with the CWA s standards revision process, including EPA approval There was insufficient evidence in the record that the NTC protects salmonids and other aquatic life Cannot assume that natural conditions are protective Natural temperatures determined by DEQ may be warmer than former natural temperatures December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 21 EPA s Disapproval of the NTC In August 2013, EPA disapproved the NTC (along with Oregon s general natural conditions narrative criterion) Because the disapproval makes Oregon s criteria more stringent, no response to the disapproval is legally required EPA suggested, however, two potential remedies for the disapproval: Oregon could adopt and obtain EPA approval of waterbody-specific temperature criteria based on natural temperatures if Oregon demonstrates that the criteria protect the waterbody s specific designated aquatic life and fish uses Oregon could adopt and obtain EPA approval of a binding methodology for adjusting temperature criteria to waterbody-specific conditions, including natural temperatures; the methodology would need to be shown to result in protective waterbody-specific criteria December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 22 11

12 Consequences of the NTC Disapproval The NTC can no longer be used for CWA actions, including NPDES permits, section 401 certifications, and TMDLs All Oregon temperature TMDLs rely to at least some extent on the NTC Based in part on the disapproval of the NTC, NWEA has filed a federal court challenge to all Oregon temperature TMDLs approved by EPA since 2006 However, pending the outcome of the litigation or a court order to the contrary, the TMDLs, including their WLAs to NPDES sources, remain in effect Because the numeric temperature criteria are no longer superseded by the NTC, and because the temperature TMDLs do not implement the numeric criteria, new and renewed NPDES permits may need to implement both the TMDL WLAs and the numeric criteria December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 23 Implementation of Numeric Temperature Criteria in NPDES Permits (without a TMDL) In a waterbody that Exceeds numeric temperature criteria (whether because of natural temperatures or point or nonpoint source discharges) and Where there is no TMDL or other cumulative effects analysis based on the numeric criteria Each NPDES permit discharge point source may warm the waterbody by 0.3 C after mixing with 25% of 7Q10 low flow or the temperature mixing zone, whichever is more restrictive To calculate NPDES permit limits based on this provision, DEQ conservatively assumes that the background stream temperature equals the numeric criterion, not a higher natural temperature For this reason, the disapproval of the NTC may result in permit conditions that are no more stringent than those that would have applied before the issuance of a TMDL based on the NTC December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 24 12

13 Thermal TMDLs without the NTC TMDL = WLAs + LAs (leaving aside any reserve or explicit MOS) TMDL = applicable criterion C human use allowance LAs = natural loading + nonpoint source TMDL with the NTC TMDL = NTC C = natural loading + nonpoint sources + WLAs Subtracting natural loading: 0.3 C = nonpoint sources + WLAs TMDL without the NTC TMDL = numeric criterion C = natural loading + nonpoint sources + WLAs If natural loading > numeric criterion C, Then nonpoint sources + WLAs must be < 0 December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 25 Potential Responses to the Disapproval of the NTC If natural temperatures exceed applicable temperature criteria, the criteria are unachievable, a TMDL cannot be approved, and the state must do one of two things: If natural temperatures do not protect fish and aquatic life uses, the state may attempt to remove or downgrade the uses through a use attainability analysis If natural temperatures protect these uses, the state may attempt to revise the criteria to be consistent with natural temperatures Potential temperature criteria revisions to be consistent with natural temperatures: Adopt a new NTC with more evidence that it protects fish and aquatic life Adopt waterbody-specific temperature criteria that account for natural temperatures Adopt a binding methodology for deriving waterbody-specific criteria that account for natural temperatures Revise the human use allowance to authorize de minimis point and nonpoint source temperature increases regardless of natural temperatures December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 26 13

14 Adopt a New NTC? A new NTC could be adopted with more evidence that it protects fish and aquatic life This would restore the status quo, but: Establishing that the NTC protects fish and aquatic life could be difficult because of the variability of waterbodies and aquatic life throughout the state A new NTC would not address the court s holding that each application of the NTC is a standards revision that requires EPA approval through the CWA standards approval process December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 27 Adopt Waterbody-Specific Temperature Criteria? Waterbody-specific temperature criteria address the two principal difficulties of the NTC: Because the criteria apply only to specific waterbodies, demonstrating that the waterbodies natural temperatures protect their designated fish and aquatic life uses could be easier The criteria would be adopted and approved by EPA through the CWA standards approval process DEQ lacks the resources, however, to develop and justify waterbody-specific criteria for every waterbody in the state December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 28 14

15 Adopt a Binding Methodology for Deriving Waterbody-Specific Criteria? Adopting and obtaining EPA approval of a method for deriving waterbody-specific criteria could avoid the need for EPA approval of each criterion through the CWA standards approval process But developing such a method and demonstrating that it would invariably result in criteria that protect designated fish and aquatic life uses in all of the many different waterbodies throughout the state may not be feasible December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 29 Adopt an Allowance for De Minimis Warming Regardless of Natural Temperatures? This would allow biologically insignificant increases in temperature caused by human activities (e.g., 0.3 C) while eliminating the need to determine natural temperatures and demonstrate that they protect designated fish and aquatic life uses Whether such a provision would be consistent with the CWA or EPA s regulations, however, is unclear TMDLs arguably must account for natural conditions If natural conditions exceed the applicable temperature criterion, no thermal load allocation would be available for human-caused warming December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 30 15

16 Thermal TMDLs TMDLs for temperature (heat) have been adopted in Oregon and elsewhere in the same manner as TMDLs for other pollutants But the CWA and EPA s regulations require temperature criteria exceedances to be addressed by a different type of TMDL (which I refer to as a thermal TMDL ) A thermal TMDL is the maximum thermal load that will assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife not the maximum thermal load that will achieve the applicable temperature criterion Thermal TMDLs can account for natural thermal loading without needing to revise water quality criteria through the standards approval process Thermal TMDLs require more effort than standard TMDLs because they effectively require the development of waterbody-specific criteria, albeit through the TMDL, rather than the standards approval process December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 31 Questions? Michael Campbell, Stoel Rives LLP, Portland (503) ; michael.campbell@stoel.com DEQ s temperature standard webpage: December 9, 2014 OREGON TEMPERATURE STANDARDS MICHAEL CAMPBELL, STOEL RIVES LLP 32 16