Legal settlement could help protect salmon eggs incubating in gravel

Washington Department of Ecology has agreed to take steps to protect wild salmon eggs incubating in gravel by developing entirely new water-quality standards to control fine sediment going into streams.

The new standards, yet to be developed, could ultimately limit silty runoff coming from logging operations, housing construction and other operations that can affect water quality. The idea is maintain adequate oxygen to salmon eggs, thus increasing the rate of survival as well as the health of the young fish.

The legal agreement with Ecology grew out of a lawsuit brought by Northwest Environmental Advocates against the federal Environmental Protection Agency. NWEA claimed that the EPA had failed to consult with natural resource agencies while reviewing changes in state water-quality standards, as required by the Endangered Species Act.

The consultation process — which typically involves the National Marine Fisheries Service, U.S. Fish and Wildlife Service, or both — is designed to make sure that endangered species are not put at risk of extinction by any actions involving the federal government.

The lawsuit covered a host of water-quality standards developed under the federal Clean Water Act and approved by Washington state since 2003. The U.S. District Court in Seattle ruled that water-quality standards adopted more than six years earlier were beyond the statute of limitations, but some standards will now be reviewed through consultation procedures.

The settlement process itself has become a political issue, according to environmental groups, as I will describe in a moment.

The levels of ammonia allowed by Ecology in both freshwater and seawater must go through a formal review under ESA within three years, as spelled out in the settlement agreement. Ammonia is a constituent of sewage effluent, livestock operations and some industrial processes. In high enough levels, it can be toxic to fish.

Melissa Gildersleeve, a manager in Ecology’s Water Quality Program, said she believes the state’s current standards for ammonia are adequate to protect salmon and should be confirmed through the upcoming review process — although NWEA contends that the standards are out of date and should be revised.

Gildersleeve said water-quality criteria for fine-sediment is something that Ecology has wanted to adopt, but experts are finding it difficult to develop a measurable standard that ensures that salmon eggs are getting adequate oxygen.

“We have spent a number of years working on this issue, and we realize that there are challenges to monitor it,” she said. “It was on our to-do list. Now we are trying to figure out how to do that and then go through a formal rule-making process and get comments.”

Under the settlement, Ecology has three years to announce a formal proposal and another year to adopt the new standard for fine sediments. The state’s turbidity standards for streams, which touches on the issue of sediment, will remain in place after adoption of new standards addressing adequate oxygen for salmon eggs.

Another issue in the settlement is how the EPA should deal with “natural conditions” — such as stream temperature — that do not allow salmon or other species to thrive. For example, studies may reveal that a portion of a stream can never meet the approved temperature criteria — even if the stream were to be restored to a pristine condition. A judge in Oregon has ruled that any exemption from the normal criteria because of “natural conditions” is effectively a new water-quality standard.

The EPA agreed to review the process in both Washington and Oregon to determine what steps should be taken when states propose an exemption based on natural conditions. One option would cause an exemption to trigger a biological review and public comments to make sure that the exemption is justified.

The settlement, approved yesterday by U.S. District Judge Ricardo Martinez in Seattle, could have been completed much sooner were it not for a constraining policy issued by former EPA Administrator Scott Pruitt, according to Allison LaPlante, attorney for NWEA. She noted that this was the first settlement in the country to make it through the EPA’S cumbersome review process.

The new policy was issued about a year ago, when Pruitt said it would ensure due process as opposed to a “sue-and-settle” approach. Among other things, it requires publication of any proposed legal settlement along with an extended public comment period.

“The Pruitt policy added more than a year to this settlement process and only resulted in six public comments, all of which supported protecting salmon,” LaPlante said in a news release. “It’s proven to be yet another excuse for agency delays in complying with the Clean Water Act and Endangered Species Act at a time when we can ill afford it, given the dwindling populations of wild salmon and of the orca whales that depend upon salmon.”

Editorial writer Carl Segerstrom discusses the ongoing Pruitt Policy in High Country News.

Nina Bell, executive director of NWEA, has been outspoken about what she considers a failure of environmental agencies to aggressively protect the environment.

“The result of our lawsuit forces EPA and Ecology to take actions to protect threatened and endangered salmon that these agencies should have taken many years ago,” she said in a news release. “For all of the lip service paid by the agencies to saving salmon, they are consistently short on taking any real actions.

“When species are struggling to survive,” she added, “agencies should not be dragging their feet to do what the law requires.”

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