Washington Trout: Preserve, Protect, Restore

Creates virtual exemption for federal dams from complying with Clean Water Act
Final rule is likely to be much worse than proposed rule

Why is EPA promulgating Oregon water quality standards?

The U.S. Environmental Protection Agency (EPA) is under federal court order to promulgate replacement water quality standards for temperature and dissolved oxygen in Oregon as the outcome of a lawsuit. The suit, Northwest Environmental Advocates v. EPA, challenged EPA’s approval of Oregon’s 1996 water quality standards as inadequate to meet the requirements of the Clean Water Act (CWA) and the Endangered Species Act (ESA). Salmon, steelhead, and bull trout are cold-water species in Oregon that are listed as threatened and endangered pursuant to the ESA. High water temperatures cause disease, reproductive failure, and death.

Why are Oregon water quality standards a national issue?

EPA is proposing to virtually exempt the operators of federal dams in Oregon from compliance with the CWA. This is the first public proposal that mirrors discussions within the Administration over the last year for a new national “watershed rule.” It is well-known that the Army Corps of Engineers, Department of Interior, and other federal agencies are seeking exemptions from compliance with water quality standards. A publicly leaked version of the watershed rule (January 2003) showed EPA is working on developing a rule with a wide range of loopholes for many sources of water polluters. It has only become worse since then.

What is the national “watershed rule”?

The national “watershed rule” is a Bush Administration proposal, not yet public, that would govern the outcome of the CWA’s principle mechanism to clean up polluted water. The watershed rule not only addresses the development of “TMDL” clean-up plans but it contains provisions that would affect how and whether water quality standards require pollution controls on both point sources (discharges from industries and municipalities) and non-point sources (polluted run-off from land activities such as farming, logging, urban development). Environmental groups are united in their opposition to the new watershed rule because it will stop progress towards cleaning up dirty water and allow even more pollution.

The Bush Administration has been pushing EPA to create a national watershed rule that:

Allows states to remove most waters from the list of impaired waters that require TMDL clean-up plans based merely on their having some kind of plan;
Restricts states to giving non-point sources, background, and unregulated point sources one gross allocation of pollutant loading, so that it will be impossible to distinguish responsibility for needed pollutant reductions by source sector or individual sources.
Allows point sources to increase discharges (violating anti-backsliding) in anticipation of unenforceable and uncertain reductions from non-point sources and allows point sources to be grouped together, defeating any regulatory benefit from TMDLs.
Encourages trading between point and non-point sources without restriction.
Forces states to exempt or virtually exempt dams from compliance with water quality standards.

What is a TMDL clean-up plan?

The CWA requires states, or EPA if states fail, to compare water quality data to water quality standards and place those waters that violate standards on a list of impaired waters. These listed waters then require the development of scientifically-based clean-up plans called Total Maximum Daily Loads (TMDL). Litigation against EPA for failure to ensure the development of TMDLs, in over 30 states, has forced states to develop over 9,000 TMDLs to date and pushed EPA to take the program seriously.

What is EPA proposing for Oregon regarding dams?

EPA is proposing to create a process to allow federal dam operators to petition the agency to evaluate whether “designated uses” of rivers are attainable. Submission of a petition would trigger a requirement that EPA conduct a Use Attainability Analysis (UAA) within 9 months (with time extensions if too many petitions were received). If the UAA concluded that the designated uses of a river could not be attained with the dam in place, the proposed rule would require EPA to have changed the water quality standards within 15 months. In addition, EPA is encouraging dam operators to provide information on the attainability of designated uses within the 30-day comment period for the proposed rule. The petition to evaluate attainability would go to EPA because only EPA would have the authority to change the standards.

What is wrong with EPA’s dam exemption proposal for Oregon?

The provision proposed for the Oregon standards would force EPA to act rather than leaving the choice of downgrading its designated uses to the state. The rule removes the public and state from making the important policy decision of what level of protection the state will provide its beneficial uses. In doing so, it usurps the state’s prerogative to aspire to providing more water quality protection than was in place in 1975 (the federally-required “floor” of protection). The proposed process exceeds EPA’s statutory and regulatory authority to downgrade state-established beneficial uses, a choice that is granted to states alone; EPA’s authority is restricted to promulgating standards for states that do not meet the minimum requirements of the Act.

In addition, the extremely fast time frame proposed by EPA would preclude analysis of what needs to be done to bring rivers into compliance with existing water quality standards, an analysis that would be developed in a TMDL clean-up plan. The State of Oregon is opposed to EPA’s proposal.

How many dams in Oregon will be affected?

In the rule preamble EPA states it is proposing the exemption process apply to Congressionally-authorized dams (i.e., not federally-funded dams on private lands or private dams on federal lands). It appears the rule may affect up to 150 dams in Oregon. The proposed rule would not affect dams on the Columbia River because the EPA is not proposing water quality standards for the Columbia (it was not ordered by the court).

What are Beneficial, Designated, and Existing Uses?

Beneficial uses are uses made of waters, such as fishing, swimming, and protection of aquatic life. States are required to formally designate uses as part of setting water quality standards (the “designated uses” are a required component of standards). In addition, federal regulations require protection of all beneficial uses in place on or after November 28, 1975 as “existing uses.” In the UAA process, existing uses cannot be removed.

What does the current UAA rule allow?

A state may remove or alter a designated use, so long as it is not an existing use, if it can demonstrate that attaining the designated use is not feasible because a dam “preclude[s] the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate [the dam] in a way that would result in the attainment of the use.”

What effect do dams have on river temperatures?

Dams increase water temperatures by holding waters in reservoirs where they warm, particularly in the shallow areas near shore. In addition, the volume of water in reservoirs prevents them from cooling much during the night. High temperature discharges from dams increases maximum temperatures and delays the cooling in rivers that would naturally occur in the late summer/fall migration and spawning season. Dams also slow river flow rates, causing juvenile fish to be exposed to high temperatures for longer periods of time than they would be naturally.

What happens next?

EPA published its proposed rule in the Federal Register on Friday, October 10. Hearings are slated for Portland (10/22, 5-9 PM, State Office Building, 800 NE Oregon), Eugene (10/23, 2-6 PM, Eugene Public Library, 100 W. 10th), and Bend (10/24, 10 AM-1 PM, Bend Community Center, 1036 NE 5^th St.)

Written comments must be submitted by Monday, November 10, 2003 to Valerie Badon, ORC-158, U.S. Environmental Protection Agency Region X, 1200 Sixth Avenue, Seattle, WA 98101, Attention Docket ID No. OW-2003-0068, via e-mail: OW-Docket@epa.gov.

EPA is required by the court order to finalize water quality standards for Oregon by March 2, 2004.

Where can I see the proposed rule?

This proposed rule was published October 10, 2003, in the Federal Register:
http://www.epa.gov/fedrgstr/EPA-WATER/2003/October/Day-10/w25525.htm

The last 13 pages of the document are the proposed rule text. Sections of the preamble addressing the dam provision are on pages 23-24 and 89-97.

*** Fact Sheet written by American Rivers ***