Salmon and water temperature: taking endangered species seriously in establishing water quality standards.

• Author: Johnston, Craig N.

1. INTRODUCTION II. SOME BACKGROUND ON THE RELEVANT LEGAL REQUIREMENTS III. HOW SHOULD EPA AND THE STATES TAKE SPECIES DISTRESS INTO ACCOUNT IN SETTING WATER QUALITY STANDARDS? IV. THE ADVANTAGES OF ADDRESSING SPECIES DISTRESS UNDER THE CLEAN WATER ACT V. CONCLUSION I. INTRODUCTION

   This is a crucial time for the future of wild salmon in the Pacific Northwest. Some runs, including the Snake River coho, are extinct.

   (1) Many others are in acute distress, with their populations diminished, (2) their range limited, (3) and their remaining habitat degraded. (4)

   There are, of course, a number of factors causing salmonid decline. In addition to habitat degradation, salmon suffer from hydropower development, (5) hatchery effects, (6) overharvesting, (7) predation (8) and even climatic variation leading to temporarily unfavorable ocean conditions. (9) But water quality, and water temperature in particular, clearly represent a significant part of the problem. (10) High temperatures can lead to a host of ill effects in salmon, including elevated risks of disease, (11) fatality, (12) increased predation, (13) and barriers to migration. (14) Indeed, high temperatures probably played a principal role in this year's major fish kill (an estimated 33,000 salmonid fatalities) in the Klamath River basin, through both severe disease-fostering conditions and thermal barriers to upstream migration. (15)

   High water temperatures are ubitquitous in the Pacific Northwest. In 1998 the Oregon Department of Environmental Quality (DEQ) determined that 12,178 stream miles in Oregon violated temperature standards during portions of each year. (16) Currently, DEQ proposes to add 3602 new miles to the list of streams violating these standards. (17) While EPA characterized the risk of disease to migrating salmon as "severe" at temperatures above 64.4[degrees]F, (18) and identified 70.9[degrees]F as a lethal temperature, (19) Oregon has recorded temperatures as high as 82[degrees]F in the Grand Ronde River, 83[degrees]F in Fifteen Mile Creek (a tributary of the Columbia River), and 76[degrees]F in Lobster Creek (a tributary of the Alsea River in the Coast Range). (20)

   The problem of declining salmon populations is exacerbated by the fact that many of the most imperiled runs are those occupying the above-mentioned rivers and streams during the summer months and are thus exposed to the risks posed by elevated temperatures. Snake River sockeye, for example, migrate upstream in mid- to late summer when the rivers are at their warmest. (21) Similarly, Snake River fall chinook tend to enter the rivers in July or August and swim upstream to hold and spawn. (22) Furthermore, Snake River spring chinook are adversely affected during two of their life stages. First, because juveniles rear in their natal streams and lower in the stream basin for a year before migrating out to sea, they are exposed to high summer temperatures. (23) Although as adults they tend to enter the rivers in spring, they "hold" in the mid- to upper reaches of the basins prior to the spawning season in later summer or fall (August through October). Thus, high summer temperatures can induce stress and shrink available holding areas. (24)

   Sources of high stream temperatures include the removal of streamside vegetation, (25) water withdrawals, (26) dams, (27) and discharges from industrial facilities, wastewater treatment facilities, and irrigation return flows. (28)

   Recently, Northwest regulators have developed complex frameworks for addressing these temperature concerns. Oregon, for example, has adopted a tiered approach that has four main components. The most stringent standard of 50[degress]F (10[degrees]C) is for areas inhabited by bull trout. (29) A standard of 55[degrees]F (12.8[degrees]C) is for areas used by other salmonids for spawning, egg incubation, and fry emergence. (30) Another standard, of 64[degrees]F (17.8[degrees]C), is for areas where rearing, adult migration, holding, and smoltification occur. (31) Finally, Oregon has an even more lenient standard of 68[degrees]F (20[degrees]C) for the lower Columbia and the lower Willamette. (32)

   Recently, EPA issued a Draft Temperature Guidance that proposes a similar but somewhat more sophisticated framework, consisting of six tiers of protection: 1) 48.2[degrees]F (9[degrees]C) for bull trout spawning, 2) 53.6[degrees]F (12[degrees]C) for bull trout juvenile rearing, 3) 55.4[degrees]F (13[degrees]C) for spawning, egg incubation and fry emergence for other salmonids, 4) 60.8[degrees]F (16[degrees]C) for "core" juvenile rearing; 5) 64.4[degrees]F (18[degrees]C) for juvenile rearing and juvenile/adult migration, and 6) 68[degrees]F (20[degrees]C) for migration on lower mainstem rivers (e.g., the mid-lower Columbia and the lower Snake), supplemented by a cold-water refugia narrative provision. (33) When finalized, EPA's approach will serve as the touchstone for its review of state water quality standard submittals (including Oregon's resubmittal) throughout the Pacific Northwest. (34)

   This Article is not intended as a thorough critique of Oregon's standards or EPA's draft guidance. Instead, this Article addresses the simple question of what it means to protect "designated uses" under the Clean Water Act (CWA). (35) Specifically, the article addresses this question in the context of threatened or endangered species and asks how temperature standards should be determined to enable recovery of the Northwest's salmonid runs. This question has some immediate relevance, as evidenced by both the imperiled nature of these runs and EPA's pending temperature guidance. Additionally, the question has larger significance under the CWA. Surprisingly, the question of what it really means to protect a designated use has received little attention under the CWA, even from EPA.

   This Article argues that EPA is insufficiently protective in establishing its temperature guidance. The problem with EPA's approach is that, to all appearances, the agency analyzes temperature in a vacuum, as if temperature is the only threat to otherwise perfectly healthy salmonid populations. Only once in the Draft Temperature Guidance does EPA even mention that some of the species it is trying to protect already face extinction, and nowhere does EPA indicate that it has taken account of the fact that these runs are plagued by other threats that are largely beyond EPA's control. (36) If EPA persists in this myopic approach, the resulting standards may reduce, but are extremely unlikely to eliminate, the role that water temperature plays in exacerbating salmonid decline.

   There is a better way. EPA has the power, and may in fact have the legal obligation, to insist upon temperature standards that are fully protective of the remaining salmonid runs. At the very least, nothing in either the Clean Water Act or EPA's existing regulations dictates the cramped view the Agency appears to be taking (by default) in the draft guidance regarding its regulatory authority. Given the other threats to which these salmon runs are exposed, even appropriate temperature standards would not guarantee their recovery. At the very least, however, these standards would establish a framework for ensuring that, upon their implementation, water temperature would not be a link in any causal chain tending toward extinction.

   How can EPA set appropriate standards? I suggest it can do so by learning some valuable lessons from the Endangered Species Act (ESA) or, more specifically, from some conceptual steps that the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (FWS) have outlined (although perhaps not always followed) to protect threatened and endangered species under that statute. In particular, those agencies recognize that if one is to systematically analyze what is required to restore a species to health, one must first understand both the species's current population status and all of the impediments to its recovery. While this may sound obvious, it is surprising that a search of all of EPA's regulatory pronouncements regarding the establishment of water quality standards will turn up not a single reference to this basic idea.

   In recent years, much attention has been devoted to the interface between the CWA and the ESA. (37) One of the most salient quotes to emerge from this discussion is from Will Stelle, the former Regional Administrator of the National Marine Fisheries Service. In addressing the relationship between water quality standards and the requirements of the ESA, he observed that "[f]rom a fish perspective, aquatic health under the ESA and clean water under the Clean Water Act should be the same thing, and if they're not, something's wrong." (38)

   At least in theory, EPA seems to agree. For example, in the preamble to the memorandum of agreement it recently entered into with both NMFS and FWS (the Services) regarding CWA/ESA coordination, EPA joined the Services in concluding that "water quality that is so poor it would likely jeopardize a listed species or destroy or adversely modify critical habitat fails to meet the fundamental requirements of the CWA." (39)

   If this is true, and I believe it is, then EPA has all the authority it needs under the CWA to require temperature standards that are truly protective of Northwest salmonids, without resort to any arguments favoring reliance on the ESA to "trump" any perceived deficiencies in the CWA. Moreover, I believe that addressing these issues under the CWA provides several advantages over any approach that relies on the ESA. Most significantly, addressing the issues under the CWA negates the need to wait until a species is formally listed as "threatened" or "endangered," or until "critical habitat" is formally designated under the ESA. In short, EPA can learn lessons from the ESA and apply them under the CWA, without being bound by some of the apparent weaknesses of the ESA--at least as...