August 31, 2020

Ninth Circuit compels EPA to issue a temperature standard TMDL for the Columbia and Lower Snake Rivers after state inaction

by Miles Johnson and Kingsly Alec McConnell

Salmon and other fish in the Columbia and Lower Snake Rivers need cold water to survive. The U.S. Court of Appeals for the Ninth Circuit recognized as much in December 2019, when it compelled the U.S. Environmental Protection Agency (EPA) to develop and issue a long-overdue temperature total maximum daily load (TMDL) for the rivers. Plaintiffs Columbia Riverkeeper, Idaho Rivers United, Snake River Waterkeeper, Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources filed suit against EPA in Columbia Riverkeeper v. Wheeler, 944 F.3d 1204 (9th Cir. 2019) (Riverkeeper). These fishing and environmental plaintiffs argued that, due to Washington and Oregon’s long-term failures to submit a temperature TMDL under the Clean Water Act (CWA), EPA had a nondiscretionary duty to reject the “constructive submission” of no TMDL and issue the temperature TMDL directly. The district court and Ninth Circuit both agreed.

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