ALLISON LAPLANTE, OSB # 023614

Earthrise Law Center 

Lewis & Clark Law School 

10015 S.W. Terwilliger Blvd. 

Portland, OR 97219

Tel: (503) 768-6894 

Fax: (503) 768-6642

laplante@lclark.edu 

Attorney for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

NORTHWEST ENVIRONMENTAL 

ADVOCATES, an Oregon nonprofit

corporation, 

 Plaintiff, 

 v.

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY and GINA 

McCARTHY, in her official capacity as

Administrator of the United States 

Environmental Protection Agency,

 Defendants. 

Case No. 3:15-cv-0663

COMPLAINT 

Clean Water Act Citizen Suit

(33 U.S.C. § 1365(a)(2)) 

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INTRODUCTION 

1. This is a complaint for declaratory and injunctive relief under the Federal

Water Pollution Control Act, commonly known as the Clean Water Act (“CWA” or “the 

Act”), 33 U.S.C. §§ 1251 et seq. Plaintiff Northwest Environmental Advocates (“NWEA”) 

brings this action under the “citizen suit” provision of the CWA, 33 U.S.C. § 1365(a)(2), 

against the United States Environmental Protection Agency (“EPA”) and Gina McCarthy, 

in her official capacity as the Administrator of the EPA, for their failure to perform

mandatory duties under the Act. 

2. As required by the CWA, in July of 2004 the State of Oregon submitted 

revised water quality standards for numerous toxic pollutants to the EPA for review and

approval. See 33 U.S.C. § 1313(c)(2)(A). After considerable delay and only after being

prompted by a prior NWEA lawsuit, EPA finally took action on Oregon’s revised

standards over eight years later, on January 31, 2013. EPA approved most of the 

standards submitted by Oregon but expressly disapproved seven standards (specifically,

numeric criteria for the toxic pollutants aluminum, ammonia, and copper intended to 

protect aquatic life from acute and chronic toxicity and the acute aquatic life criterion for

cadmium), and in so doing notified the State of the changes needed to meet the 

requirements of the Act. See id. § 1313(3). 

3. Oregon did not adopt EPA’s recommended changes within 90 days of EPA’s

notification, however, thereby triggering a mandatory duty for the EPA Administrator to 

“promptly prepare and publish proposed regulations setting forth” revised water quality 

standards for Oregon. Id. § 1313(c)(3), (4)(A). 

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4. EPA’s mandatory duty to “promptly prepare and publish” replacement

aluminum, ammonia, cadmium, and copper water quality standards for Oregon arose on

May 1, 2013, 90 days after EPA disapproved those standards; yet to date, EPA has not

fulfilled this duty. And with the exception of ammonia, the State of Oregon has no public

proposal for revising the toxics criteria in the wake of EPA’s January 31, 2013

disapproval. As EPA is well aware, Oregon’s current water quality standards for

aluminum, ammonia, cadmium, and copper are over 20 years old, and provide nowhere 

near the degree of protection needed for aquatic life, including endangered salmonids, to 

survive and thrive in Oregon’s rivers and streams. 

5. In this action NWEA seeks declaratory and injunctive relief, most

importantly an order requiring the EPA Administrator to fulfill her duty under 33 U.S.C.

§ 1313(c)(4) to promptly prepare and publish proposed water quality standards for

aluminum, ammonia, cadmium, and copper applicable to the State of Oregon, as well as

an award of litigation costs (including reasonable attorneys’ fees) as authorized by 33

U.S.C. § 1365(d). 

JURISDICTION AND VENUE

6. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question 

jurisdiction) and 33 U.S.C. § 1365(a) (CWA citizen suit jurisdiction). The requested 

relief is proper under 28 U.S.C. § 2201(a), 28 U.S.C. § 2202, and 33 U.S.C. § 1365(a), 

(d). 

7. As required by section 505(b)(2) of the CWA, 33 U.S.C. § 1365(b)(2), on

February 11, 2015 NWEA furnished EPA and Administrator McCarthy with notice of its 

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intent to sue for the CWA violations alleged in this complaint. See Exhibit 1. More than 

60 days have passed since NWEA sent the notice of intent to sue.

8. Venue is properly vested in this Court pursuant to 28 U.S.C. § 

1391(e)(1)(b) because a substantial part of the events or omissions giving rise to the 

claims in this case occurred in Oregon. This action is appropriately filed in the Portland 

Division because a substantial part of the events or omissions giving rise to the claims in

this case occurred in Multnomah County. See LR 3-2(a)(1). 

PARTIES

9. Plaintiff NORTHWEST ENVIRONMENTAL ADVOCATES is a regional nonprofit environmental organization incorporated under the laws of Oregon, with its 

principal place of business in Portland, Oregon, located within Multnomah County. 

NWEA’s mission is to work through advocacy and education to protect and restore water 

and air quality, wetlands, and wildlife habitat in the Pacific Northwest. 

10. Defendant UNITED STATES ENVIRONMENTAL PROTECTION AGENCY is

an agency of the United States Government charged with oversight responsibility under

the CWA. EPA’s oversight role entails the performance of mandatory duties in

conjunction with a State’s efforts to establish and implement water quality standards. 

11. Defendant GINA MCCARTHY is the Administrator of the EPA, and in that 

official capacity is required to take certain actions to oversee and implement the Clean

Water Act, including the review and approval or disapproval of state-submitted water 

quality standards as well as the promulgation of replacement standards where necessary. 

33 U.S.C. § 1313(c). 

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LEGAL BACKGROUND

12. Section 303(c)(1) of the CWA requires a State to review its “applicable

water quality standards” every three years and, where necessary, adopt new or revised

standards to ensure full compliance with the Act. 33 U.S.C. § 1313(c)(1). 

13. Each new or revised water quality standard must delineate: (1) the 

“designated uses of the navigable waters involved,” (2) the “water quality criteria” 

necessary to protect those uses, and (3) an “antidegradation policy.” 33 U.S.C. § 

1313(c)(2)(A); 40 C.F.R. § 131.6. The CWA further requires that any new or revised

water quality standard must be adequate to “protect the public health or welfare, 

enhance the quality of water and serve the purposes of [the CWA].” 33 U.S.C. § 

1313(c)(2)(A). 

14. Whenever a State “revises or adopts” new water quality standards, CWA

section 303(c)(2)(B) requires the State to “adopt criteria for all toxic pollutants” whose 

“discharge or presence . . . in the affected waters could reasonably be expected to 

interfere with” the designated uses of those waters. 33 U.S.C. § 1313(c)(2)(B). 

15. Section 303(c)(2)(A) of the CWA requires a State to submit any “revised or

new” water quality standards—including adopted criteria for toxic pollutants—to EPA

for review and approval. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.20(c). 

16. If EPA determines that any revised or new water quality standards are

inconsistent with the requirements of the CWA, it must disapprove the standards and,

within 90 days of the State’s submission, notify the State of the changes necessary to 

meet the requirements of the Act. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(a)(2). 

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17. Once EPA notifies a State that its water quality standards have been

disapproved and that changes are necessary to secure EPA approval, that State has 90

days to adopt EPA’s specified changes. 33 U.S.C. § 1313(c)(3). 

18. The CWA provides that if a State fails to adopt EPA’s specified changes to a 

State water quality standard “within ninety days after the date of notification,” the EPA

Administrator “shall promulgate such standard” itself. 33 U.S.C. § 1313(c)(3). The Act

provides a two-step process: First, the Administrator “shall promptly prepare and publish

proposed regulations setting forth revised or new water quality standards for the 

navigable waters involved” for the State-submitted standards that it has disapproved,

and also for any standards the Administrator independently determines are necessary. Id. 

§ 1313(c)(4). Second, the Administrator “shall promulgate any revised or new standard 

. . . not later than ninety days” after the proposed standards have been published, unless

the State adopts, and EPA approves, a revised water quality standard. Id. 

GENERAL FACTUAL ALLEGATIONS

19. Oregon first established numeric water quality criteria for toxic pollutants 

in 1988, primarily based on EPA’s national recommended criteria, most of which 

originated in 1980. In 1991, Oregon revised its ammonia criteria. Oregon did not revise

any toxic criteria when it submitted new and revised water quality standards to EPA for

approval in January 1996 and 2003. 

20. In 1999, the Oregon Department of Environmental Quality (“DEQ”) 

initiated a review of certain of Oregon’s water quality standards pursuant to 33 U.S.C. § 

1313(c). During the process of this review, DEQ made significant revisions to Oregon’s

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aquatic life toxics criteria, including numeric criteria for aluminum, ammonia, cadmium,

and copper.

21. Upon completing its review in 2003, DEQ submitted its water quality 

criteria recommendations to the Oregon Environmental Quality Commission (“EQC”) for

official adoption. On May 20, 2004, EQC officially adopted DEQ’s proposed revisions to 

Oregon’s water quality standards. 

22. On July 8, 2004, DEQ submitted Oregon’s new and revised water quality 

standards, including the revised aquatic life toxics criteria for aluminum, ammonia,

cadmium, and copper, to EPA for review, as required by 33 U.S.C. § 1313(c)(2)(A). 

23. With the exception of ammonia, Oregon’s July 8, 2004 submission to EPA

represented its first attempt to update its aquatic life water quality criteria for toxic 

pollutants since those criteria were first established in 1988. 

24. EPA did not timely act on Oregon’s July 8, 2004 submission as required by

33 U.S.C. § 1313(c)(3), and so in 2006 NWEA filed a lawsuit against EPA, seeking

immediate injunctive relief to compel EPA action to approve or disapprove Oregon’s July

8, 2004 submission of new and revised water quality standards. Nw. Envtl. Advocates v.

U.S. EPA, No. 06-cv-479-HA (D. Or. filed Apr. 7, 2006). 

25. On May 29, 2008, the court entered a consent decree in Case No. 06-479-

HA; that consent decree required EPA to take action on Oregon’s July 8, 2004 aquatic 

life toxics criteria upon completion of biological opinions (“BiOps”) by the National 

Marine Fisheries Service (“NMFS”) and United States Fish & Wildlife Service (“FWS”) 

(collectively “the Services”) pursuant to section 7 of the Endangered Species Act (“ESA”). 

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26. NWEA was forced to file suit once again in order to obtain timely 

completion of the BiOps by the Services. Nw. Envtl. Advocates v. NMFS, No. 10-cv-907-BR 

(D. Or. filed Aug. 2, 2010). On August 18, 2010, pursuant to a stipulated dismissal in

that case, NMFS and FWS agreed to complete the required BiOps for Oregon’s July 8,

2004 new and revised aquatic life toxics criteria. 

27. Throughout the process of litigation, from April 7, 2006 through October 

2012, NWEA granted numerous deadline extensions to EPA, NMFS, and FWS to facilitate 

compliance with their mandatory duties under the CWA and ESA. 

28. By letter dated January 31, 2013, EPA finally took action on Oregon’s July

8, 2004 revised water quality aquatic life criteria for toxics, as amended by submissions

on April 23, 2007 and July 21, 2011, approving 38 criteria values associated with 14

toxic pollutants while simultaneously disapproving 45 criteria values associated with 16

toxic pollutants. 

29. Among those water quality criteria expressly disapproved by EPA on

January 31, 2013, are the following seven criteria at issue in this case: the freshwater 

acute and freshwater chronic criteria for aluminum; the freshwater acute and freshwater 

chronic criteria for ammonia; the freshwater acute and freshwater chronic criteria for

copper; and the freshwater acute criterion for cadmium.

30. EPA’s January 31, 2013 disapprovals of aquatic life criteria for aluminum,

ammonia, cadmium, and copper were based on findings by NMFS that these criteria 

“would cause significant adverse toxicological and biological effects” on certain ESAlisted species in Oregon, thus jeopardizing the continued existence of those species or

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resulting in the adverse modification of designated critical habitat. See 16 U.S.C. § 

1536(a)(2). 

31. On December 12, 2014, in response to EPA’s January 31, 2013 formal

disapproval action, DEQ adopted revisions addressing 38 criteria values associated with 

12 toxic pollutants. However, DEQ did not at that time take any action to revise the 

disapproved criteria for aluminum, ammonia, cadmium, or copper. 

32. On January 7, 2015, Oregon adopted new water quality criteria for

ammonia. EPA has taken no official action approving or disapproving Oregon’s latest 

ammonia criteria pursuant to 33 U.S.C. § 1313(c)(4). 

33. Since EPA’s January 31, 2013 partial disapproval of Oregon’s July 8, 2004

water quality criteria, Oregon has neither promulgated nor proposed revised water 

quality criteria for aluminum, cadmium, or copper. 

34. Since EPA’s January 31, 2013 partial disapproval of Oregon’s July 8, 2004

water quality criteria, the EPA Administrator has not prepared or published proposed

regulations setting forth revised or new water quality criteria for aluminum, ammonia,

copper, or cadmium for the protection of aquatic life in Oregon. 

35. EPA’s January 31, 2013 disapproval of Oregon’s July 8, 2004 revisions to 

the State’s acute and/or toxic water quality criteria for aluminum, ammonia, copper, or

cadmium results in their reversion to criteria in effect for those four toxic pollutants prior

to their most recent adoption, namely 1988 for aluminum, copper, and cadmium and

1991 for ammonia. These criteria are outdated and are not protective of aquatic life, and

they have specifically been found to pose jeopardy to ESA-listed species and to result in

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adverse modification to critical habitat designated for those species, and their continued 

use poses significant concerns for Oregon’s waters and the species that depend on them. 

TOXIC POLLUTANTS, THEIR EFFECTS ON 

OREGON WATERS, AND INJURIES TO NWEA’S MEMBERS

36. NWEA and its members use and enjoy the waters of Oregon for

recreational, scientific, aesthetic, and other purposes. NWEA’s members derive

recreational, scientific, and aesthetic benefits from observing, studying, and

photographing aquatic species and their habitat in Oregon waters. They also enjoy

recreational fishing for salmon and trout species in those waters. 

37. Aluminum ions act as surface active toxicants, binding to or coating the 

respiratory structures (such as fish gills) of aquatic organisms and impairing their

respiratory function. The toxicity of aluminum increases as water becomes more acidic,

especially for salmonids. Anthropogenic sources of aluminum to Oregon surface waters 

include industrial waste discharges and wastewater treatment plants. 

38. Ammonia occurs naturally and can be an important source of nitrogen for

plants, but at elevated concentrations can cause a range of neurological effects to aquatic 

species, including hyper-excitability, coma, convulsions, and hyperventilation. Salmonids

are among the most sensitive aquatic organisms to ammonia toxicity. Sources of

ammonia to Oregon’s surface waters include agricultural and municipal runoff and

wastewater treatment facilities. 

39. Cadmium is considered one of the most toxic metals to fish; it is a known 

carcinogen and can affect respiration, immune response, growth, and reproduction in

freshwater organisms. Background concentrations of cadmium in Oregon’s rivers and

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streams are typically low, but anthropogenic sources of cadmium have increased its 

presence in the environment considerably. Sources of cadmium in Oregon’s surface

waters include mining and ore smelting, discharges from industrial processes including

electroplating and the manufacture of batteries and electronic components, and

stormwater runoff. 

40. Copper is among the most toxic metals to aquatic biota, and the toxicity of

copper increases in waters with lower pH and water hardness and higher temperatures. 

The effects of copper toxicity to freshwater organisms include impaired respiration, 

osmoregulation, brain function, and disease resistance; reduced resistance to disease;

and altered blood chemistry, among other effects. Copper is known for causing losses in

olfactory sensory function and alarm response behavior in salmonids. Anthropogenic 

sources of copper to Oregon’s surface waters include discharges of wastewater and

stormwater from mining, smelting, plating, textile, and other similar industrial facilities; 

municipal wastewater treatment plants; and stormwater runoff from urban areas. 

41. Numerous surface waters in Oregon are listed as “impaired” for aluminum,

ammonia, cadmium, and/or copper pursuant to section 303(d) of the Clean Water Act, 

33 U.S.C. § 1313(d), meaning they currently fail to attain the (presently lax) water 

quality standards for one or more of those pollutants. Among these are the Klamath, 

South Umpqua, Lower Owyhee, Lower Columbia, Middle Willamette, and Tualatin 

Rivers. Even more waters have been identified by the State or Oregon as of “potential 

concern” for one or more of these four toxic pollutants. If EPA were required to 

promulgate more up-to-date, protective standards, it is likely that additional Oregon 

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waters would be determined to be impaired or of “potential concern” for aluminum,

ammonia, cadmium, and/or copper. A result of identifying these waters as violating 

water quality standards would be the development of increased pollution controls. 

42. According to NMFS, continued use of Oregon’s outdated aquatic life

toxicity criteria for aluminum, ammonia, cadmium, and copper will jeopardize the 

continued existence of 18 ESA -listed species located within the waters of Oregon. 

Among this group of 18 ESA-listed species, 15 are classified as “threatened” and three 

are designated as “endangered.” Moreover, NMFS has found that continued use of those 

criteria is likely to destroy or adversely modify 17 critical habitats in relation to that 

same group of 18 species.

43. Based on NMFS’s evaluation, Oregon’s deficient aquatic life toxics criteria 

for aluminum, ammonia, cadmium, and copper are inadequate to support the CWA’s

policy of furthering the “protection and propagation of fish” in the nation’s waters 

located within the state of Oregon. 33 U.S.C. § 1251(a)(2); see also 33 U.S.C. § 

1313(c)(2)(A). 

44. The aesthetic and recreational enjoyment, scientific value, and other 

benefits obtained by NWEA’s members from their use of Oregon’s surface waters that are

or are reasonably likely to be impacted by aluminum, ammonia, cadmium, and/or 

copper pollution has been and will continue to be diminished because of those impacts. 

These NWEA members spend less time on, in, or near those waters, and derive less

enjoyment from their aesthetic, recreational, and scientific activities, because they are

concerned about the impacts that those four toxic pollutants have on aquatic life in those 

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waters. 

45. The injuries sustained by NWEA and its members are traceable to EPA and

the EPA Administrator’s failure to promptly promulgate replacement water quality 

standards for aluminum, ammonia, cadmium, and/or copper to protect aquatic life in the 

State of Oregon. If EPA had acted in a timely fashion as required by the Act, it would 

have promulgated acute and chronic water quality criteria for those four pollutants that 

are considerably more protective of aquatic life, including endangered salmonids and

other species that contribute to the benefits and values enjoyed by NWEA’s members.

46. The recreational, scientific, and aesthetic interests of NWEA and its 

members in Oregon waters will continue to be harmed by EPA’s failure to comply with 

the CWA unless the relief requested in this complaint is granted. An order from this 

Court requiring EPA to promulgate revised water quality criteria to replace those toxics 

criteria it has disapproved for aluminum, ammonia, cadmium, and copper, would lead to 

stronger protections for aquatic life in Oregon’s rivers and streams and would ensure that 

the continued existence of ESA-listed species that live in and use those waters, including

salmonids, would not be in jeopardy.

FIRST CLAIM FOR RELIEF: 

Failure to Perform a Nondiscretionary Duty to Promulgate New or Revised Water

Quality Standards for Aluminum for the Protection of Aquatic Life in Oregon 

47. NWEA realleges and incorporates herein by reference the allegations 

contained in paragraphs 1 through 46 as if fully set forth below. 

48. On July 8, 2004, Oregon submitted revised acute and chronic water quality 

criteria for aluminum to the EPA for review and approval.

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49. On January 31, 2013, EPA formally disapproved Oregon’s July 8, 2004

revised acute and chronic water quality criteria for aluminum, notified the State of its 

decision, and specified the changes needed to those criteria to meet the requirements of

the CWA.

50. Oregon did not adopt EPA’s specified changes to Oregon’s acute and

chronic water quality criteria for aluminum or otherwise revise those criteria within 90

days of January 31, 2013 (i.e., before May 2, 2013), thereby triggering a 

nondiscretionary duty on the part of the EPA Administrator to promulgate such criteria 

herself. 33 U.S.C. § 1313(c)(3). 

51. The EPA Administrator has not promulgated new or revised acute or

chronic water quality criteria for aluminum for the State of Oregon. 

52. On each day since May 2, 2013, the EPA Administrator has failed to 

perform her nondiscretionary duty to “promptly prepare and publish proposed

regulations setting forth” new or revised acute and chronic water quality criteria for

aluminum for the State of Oregon. 33 U.S.C. § 1313(c)(4). 

53. As of the date of this complaint, more than 23 months have passed since

EPA’s duty to act “promptly” in promulgating replacement aluminum criteria was 

triggered. 

54. The EPA Administrator’s failure to fulfill her mandatory duty to promulgate 

new or revised acute and chronic water quality criteria for aluminum for the State of

Oregon is ongoing, and will continue unless abated by an order of this Court. 

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SECOND CLAIM FOR RELIEF: 

Failure to Perform a Nondiscretionary Duty to Promulgate New or Revised Water

Quality Standards for Ammonia for the Protection of Aquatic Life in Oregon 

55. NWEA realleges and incorporates herein by reference the allegations 

contained in paragraphs 1 through 46 as if fully set forth below. 

56. On July 8, 2004, Oregon submitted revised acute and chronic water quality 

criteria for ammonia to the EPA for review and approval.

57. On January 31, 2013, EPA formally disapproved Oregon’s July 8, 2004

revised acute and chronic water quality criteria for ammonia, notified the State of its 

decision, and specified the changes needed to those criteria to meet the requirements of

the CWA.

58. Oregon did not adopt EPA’s specified changes to Oregon’s acute and

chronic water quality criteria for ammonia or otherwise revise those criteria within 90

days of January 31, 2013 (i.e., before May 2, 2013), thereby triggering a 

nondiscretionary duty on the part of the EPA Administrator to promulgate such criteria 

herself. 33 U.S.C. § 1313(c)(3). 

59. The EPA Administrator has not promulgated new or revised acute or

chronic water quality criteria for ammonia for the State of Oregon. 

60. On each day since May 2, 2013, the EPA Administrator has failed to 

perform her nondiscretionary duty to “promptly prepare and publish proposed

regulations setting forth” new or revised acute and chronic water quality criteria for

ammonia for the State of Oregon. 33 U.S.C. § 1313(c)(4). 

61. As of the date of this complaint, more than 23 months have passed since

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EPA’s duty to act “promptly” in promulgating replacement ammonia criteria was 

triggered. 

62. The EPA Administrator’s failure to fulfill her mandatory duty to promulgate 

new or revised acute and chronic water quality criteria for ammonia for the State of

Oregon is ongoing, and will continue unless abated by an order of this Court. 

THIRD CLAIM FOR RELIEF: 

Failure to Perform a Nondiscretionary Duty to Promulgate New or Revised Water

Quality Standards for Cadmium for the Protection of Aquatic Life in Oregon 

63. NWEA realleges and incorporates herein by reference the allegations 

contained in paragraphs 1 through 46 as if fully set forth below. 

64. On July 8, 2004, Oregon submitted revised acute and chronic water quality 

criteria for cadmium to the EPA for review and approval.

65. On January 31, 2013, EPA formally disapproved Oregon’s July 8, 2004

revised acute water quality criterion for cadmium, notified the State of its decision, and

specified the changes needed to that criterion to meet the requirements of the CWA.

66. Oregon did not adopt EPA’s specified changes to Oregon’s acute water 

quality criteria for ammonia or otherwise revise that criterion within 90 days of January

31, 2013 (i.e., before May 2, 2013), thereby triggering a nondiscretionary duty on the 

part of the EPA Administrator to promulgate the criterion herself. 33 U.S.C. § 

1313(c)(3). 

67. The EPA Administrator has not promulgated a new or revised acute water 

quality criterion for cadmium for the State of Oregon. 

68. On each day since May 2, 2013, the EPA Administrator has failed to 

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perform her nondiscretionary duty to “promptly prepare and publish proposed

regulations setting forth” a new or revised acute water quality criterion for cadmium for

the State of Oregon. 33 U.S.C. § 1313(c)(4). 

69. As of the date of this complaint, more than 23 months have passed since

EPA’s duty to act “promptly” in promulgating a replacement cadmium criterion was 

triggered. 

70. The EPA Administrator’s failure to fulfill her mandatory duty to promulgate 

a new or revised acute water quality criterion for cadmium for the State of Oregon is

ongoing, and will continue unless abated by an order of this Court. 

FOURTH CLAIM FOR RELIEF: 

Failure to Perform a Nondiscretionary Duty to Promulgate New or Revised Water

Quality Standards for Copper for the Protection of Aquatic Life in Oregon 

71. NWEA realleges and incorporates herein by reference the allegations 

contained in paragraphs 1 through 46 as if fully set forth below. 

72. On July 8, 2004, Oregon submitted revised acute and chronic water quality 

criteria for copper to the EPA for review and approval.

73. On January 31, 2013, EPA formally disapproved Oregon’s July 8, 2004

revised acute and chronic water quality criteria for copper, notified the State of its 

decision, and specified the changes needed to those criteria to meet the requirements of

the CWA.

74. Oregon did not adopt EPA’s specified changes to Oregon’s acute and

chronic water quality criteria for copper or otherwise revise those criteria within 90 days

of January 31, 2013 (i.e., before May 2, 2013), thereby triggering a nondiscretionary 

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duty on the part of the EPA Administrator to promulgate such criteria herself. 33 U.S.C.

§ 1313(c)(3). 

75. The EPA Administrator has not promulgated new or revised acute or

chronic water quality criteria for copper for the State of Oregon. 

76. On each day since May 2, 2013, the EPA Administrator has failed to 

perform her nondiscretionary duty to “promptly prepare and publish proposed

regulations setting forth” new or revised acute and chronic water quality criteria for

copper for the State of Oregon. 33 U.S.C. § 1313(c)(4). 

77. As of the date of this complaint, more than 23 months have passed since

EPA’s duty to act “promptly” in promulgating replacement copper criteria was triggered. 

78. The EPA Administrator’s failure to fulfill her mandatory duty to promulgate 

new or revised acute and chronic water quality criteria for copper for the State of Oregon 

is ongoing, and will continue unless abated by an order of this Court. 

REQUEST FOR RELIEF

WHEREFORE, NWEA respectfully requests this Court grant the following relief:

1. Declare that EPA and the EPA Administrator have violated and continue to 

violate section 303(c)(3)-(4) of the CWA, 33 U.S.C. § 1313(c)(3)-(4), by

failing to promulgate replacement water quality criteria for the seven

disapproved toxic criteria values at issue in this litigation; 

2. Issue an injunction pursuant to section 505(a) of the CWA, 33 U.S.C. § 

1365(a), ordering the EPA Administrator to “promptly” prepare and publish

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replacement criteria for Oregon’s delinquent toxic criteria values, and to 

promulgate such criteria within 90 days after their publication, 33 U.S.C. § 

1313(c)(4); 

3. Award NWEA its litigation costs and reasonable attorneys’ fees pursuant to 

section 505(d) of the CWA, 33 U.S.C. § 1365(d); and

4. Grant such other relief as the Court deems just and proper.

Dated this 20th day of April, 2015.

 s/ Allison LaPlante 

Allison LaPlante (OSB # 023614) 

Earthrise Law Center 

Lewis & Clark Law School 

10015 S.W. Terwilliger Blvd. 

Portland, OR 97219

Tel: (503) 768-6894 

Fax: (503) 768-6642

laplante@lclark.edu 

Attorney for Plaintiff 

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