By: Sarah Machinak
After seven years of litigation, the Environmental Protection Agency (EPA) has negotiated settlement terms by way of a proposed stipulated order of partial dismissal in its battle with Northwest Environmental Advocates [“Northwest”], an organization that works to restore water quality and habitats. Northwest, in conjunction with the Idaho Conservation League, sued the EPA in 2013 in the U.S. District Court for the District of Idaho. In its complaint, Northwest alleged that the EPA had failed to fulfill its duty under the Endangered Species Act to consult with certain wildlife agencies before initiating a new rulemaking under the Clean Water Act.[1] Under the Clean Water Act, the EPA is required to review state water quality standards and approve of them before said standards become a part of the state’s regulatory scheme.[2] See 40 C.F.R. § 131.21(c). Northwest claims that the EPA should have consulted with both the Fish & Wildlife Service and the National Marine Fisheries Service prior to promulgating new and revised water quality standards.
The water quality standards pertain to salmonid spawning timing procedure. For background, salmonids include whitefish, graylings, char, trout, and salmons.[3] Salmonids reproduce by spawning in fresh water and are very picky about their spawning conditions, requiring coarse gravel sediment for adequate oxygen flow to their eggs during the incubation period.[4] The Chinook salmon, a native fish of Idaho, is protected under the Endangered Species Act.[5] The Chinook salmon spawning period lasts from late July through December.[6] Idaho’s wild salmon travel nearly 900 miles and 7,000 ft vertically to spawn, dying shortly thereafter.[7] The carcasses of those salmon subsequently fertilize the rivers with much-needed nutrients.[8] Due to habitat destruction and over-fishing, inter alia, the number of wild chinook salmon that return to Idaho for spawning has dramatically decreased—dropping from 1.5 million in the 1950’s to just 20,000 today.[9]
The Clean Water Act contains provisions related to salmonid spawning, incubation and emergence periods that require states to “restore and maintain the chemical, physical and biological integrity of the nation’s waters” to protect salmonid habitats.[10] Accordingly, Idaho’s Department of Environmental Quality [“DEQ”] conducted informational studies to determine when and where salmon spawn in the state’s rivers.[11] The DEQ then established standards pertaining to the water quality in bodies of water that are likely to be inhabited by wild salmon.[12] For example, the DEQ set average maximum temperature standards for streams that are measured over a seven-day period.[13] The delicate balance of the salmonid spawning ecosystem requires careful monitoring and implementation of water quality standards.
In the Northwest matter, plaintiffs alleged that the EPA incorrectly approved of Idaho’s water quality standards without applying the Endangered Species Act [“ESA”] Section 7 process.[14] Plaintiffs further allege that, in failing to utilize the ESA Section 7 consultation, the EPA failed to protect threatened and endangered fish and wildlife from pollution.[15] The relief sought included declarative relief stating that the EPA violated its duties under the Clean Water Act, as well as injunctive relief requiring the EPA to take immediate action in consultation regarding the Idaho water quality standards.[16]
Under the proposed settlement agreement, the EPA would have a three-year timeline during which it must complete an “effects determination” pursuant to 50 C.F.R. 402.14(a) for its approval of Idaho’s revisions of the salmonid spawning timing procedures.[17] The EPA would also initiate consultation under the Endangered Species Act.[18] Additionally, the EPA would pay $37,000 in attorney’s fees to plaintiffs under the settlement agreement.[19]
The EPA is required by law to be transparent about litigation and settlement offers and, as such, accepted public comments regarding the settlement for a period of thirty (30) days, which ended on December 30, 2020.[20] Barring the revelation of new facts related to this matter by way of public comment, the settlement order will be entered and the longstanding litigation will come to an end, in a relative victory for environmentalists and spawning salmon alike.[21]
[1] Complaint at 2, Northwest Environmental Associates et al. v. EPA, (D. Idaho, 2013) (No. 1:13-cv-00263-EJL) epa.gov.
[2] Id. at 8.
[3] Wikipedia, Salmonidae, (2020) http://en.wikipedia.org/wiki/Salmonidae.
[4] Watershed Information & Conservation Council, Spawning Gravel Permeability, napawatersheds.org, (last visited Dec. 31, 2020).
[5] Barnhill, Frankie, Boise State Public Radio, Chinook Salmon Begin Spawning on a Wild Idaho River (Aug. 14, 2018) http://www.boisestatepublicradio.org.
[6] Essig, Don, Idaho Department of Environmental Quality, Geography and Timing of Salmonid Spawning in Idaho (April 25, 2014) http://www.air.idaho.gov.
[7] Idaho Rivers United, Celebrating Salmon, Wild Salmon: an Idaho legacy at risk of extinction, (last visited Dec. 31, 2020) https://www.idahorivers.org/celebrating-salmon.
[8] Id.
[9] Id.
[10] Essig, Don, Geography and Timing of Salmonid Spawning in Idaho.
[11] Id.
[12] Id.
[13] Id.
[14] Complaint at 5.
[15] Id. at 6.
[16] Id. at 34-35.
[17] Environmental Protection Agency, Proposed Settlement Agreements: Clean Water Act and Endangered Species Act, Notice Document, (No. 2020-26310) (Nov. 30, 2020) https://www.regulations.gov.
[18] Id.
[19] Id.
[20] Id.
[21] Id.