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. 

Civil No. 3:15-cv-00663-BR 

THIRD AMENDED 

CONSENT DECREE 

WHEREAS, Plaintiff Northwest Environmental Advocates ("NWEA") filed this action 

on April 20, 2015, against Federal Defendants United States Environmental Protection Agency 

("EPA") and Gina McCaiihy, in her official capacity as Administrator of the EPA, alleging 

violations of the Clean Water Act ("CWA"), 33 U.S.C. §§1251 et seq., and seeking declaratory 

and injunctive relief, and attorneys' fees and costs; 

WHEREAS, pursuant to 33 U.S.C. § 1313(c)(3) and 40 C.F.R. §§ 131.5, 131.13, and 

131.21 (b ), EPA is directed to review state-submitted water quality standards to determine 

whether the standards meet the requirements of the CW A; 

WHEREAS, pursuant to 33 U.S.C. § 1313(c)(3), if EPA determines that such standard is 

not consistent with the requirements of the CW A, within 90 days of the state's submission, EPA 

must notify the state and specify the changes to meet such requirements; 

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WHEREAS, pursuant to 33 U.S.C. § 1313(c)(3), if such changes are not adopted by the 

state within 90 days after the date of notification, the Administrator shall promptly prepare and 

publish proposed regulations setting forth a revised or new water quality standard for the 

navigable waters involved; 

WHEREAS, on July 8, 2004, Oregon submitted new and revised water quality criteria for 

aquatic life to EPA for review and approval. Among these were revised acute and chronic 

freshwater aquatic life criteria for ammonia ("ammonia criteria"), cadmium ("cadmium 

criteria"), and copper ("copper criteria"), and new acute and chronic freshwater aquatic life 

criteria for aluminum ("aluminum criteria"); 

WHEREAS, by letter dated January 31, 2013, EPA disapproved Oregon's 2004 

submission of its aluminum criteria, its ammonia criteria, its acute cadmium criterion, and its 

copper criteria; 

WHEREAS, on January 7, 2015, Oregon adopted revisions to its ammonia criteria and 

EPA approved these criteria on August 4, 2015; 

WHEREAS, Oregon has not adopted revisions to its aluminum criteria, its acute 

cadmium criterion, or its copper criteria to address EPA's January 31, 2013 disapproval of these 

criteria; 

WHEREAS, EPA has not proposed aluminum criteria since its January 31, 2013 

disapprovals but signed a proposal for copper criteria and an acute cadmium criterion on March 

31, 2016; 

WHEREAS, the Parties agree that resolution of this matter without further litigation is in 

the best interest of the Parties and the public, and that entry of this Consent Decree is the most 

appropriate means of resolving this action; 

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NOW, THEREFORE, without the trial of any issue of fact or law, upon consent of the 

Parties, and upon consideration of the mutual promises contained herein, 

IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: 

I. JURISDICTION AND VENUE 

1. This Court has jurisdiction over this action pursuant to 33 U.S.C. § 1365(a) 

(CWA citizen suit provision) and 28 U.S.C § 1331 (federal question). 

2. Venue is properly vested in this Court pursuant to 28 U.S.C. § 139l(e) because a 

substantial part of the events or omissions giving rise to the claims occurred in Oregon. 

II. DEFINITIONS 

3. Whenever terms listed below are used in this Consent Decree, the following 

definitions shall apply: 

a. "NWEA" shall mean the Plaintiff in this action, Northwest Environmental 

Advocates. 

b. "EPA" shall mean the United States Environmental Protection Agency. 

c. "Party" shall refer to either NWEA or EPA. 

d. "Parties" shall refer collectively to NWEA and EPA. 

e. The term "copper and cadmium criteria" shall refer to acute and chronic copper 

freshwater criteria for the protection of aquatic life and the acute cadmium 

freshwater criterion for the protection of aquatic life. 

f. The term "copper criteria" shall refer to acute and chronic copper freshwater 

criteria for the protection of aquatic life. 

g. The term "aluminum criteria" shall refer to acute and chronic aluminum 

freshwater criteria for the protection of aquatic life. 

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h. The term "state criteria" shall refer to water quality criteria adopted by the State 

of Oregon. 

III. SCHEDULE FOR EPA ACTION 

4. Copper and Cadmium Criteria 

a. By January 16, 2017, EPA will either: 

(i). Approve state copper and/or cadmium criteria for Oregon submitted to 

address EPA's January 31, 2013 disapproval; or 

(ii). To the extent criteria are not approved under III.4.a.i, sign a notice of final 

rulemaking. 

5. Aluminum Criteria 

a. By March 15, 2019, EPA will either: 

(i). Approve state aluminum criteria for Oregon submitted to address EPA's 

January 31, 2013 disapproval; or 

(ii). To the extent criteria are not approved under III.5.a.i, sign a notice of 

federal rulemaking proposing such aluminum criteria for Oregon, to 

address EPA' s January 31, 2013 disapproval. 

b. In the event that EPA signs a notice of federal rulemaking proposing aluminum 

criteria for Oregon under III.5 .a.ii, EPA will, no later than six months after the 

date on which National Marine Fisheries Service ("NMFS") issues a Biological 

Opinion regarding the aluminum criteria previously proposed by EPA, either: 

(i). To the extent not approved under III.5.a.i., approve state aluminum criteria 

for Oregon submitted to address EPA's January 31, 2013 disapproval; or 

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(ii). To the extent criteria are not approved under III.5.a.i or III.5.b.i., sign a 

notice of final rulemaking. 

IV. FEES AND COSTS 

6. The United States agrees to pay, and NWEA agrees to accept, $40,000.00 in full 

settlement of all claims by NWEA for its costs of litigation (including reasonable attorneys' fees 

and expenses) up to and including the date this Consent Decree is executed by the Parties. Said 

payment shall be made by electronic transfer to NWEA, and sent to Albina Community Bank: 

Bank name: 

Bank address: 

ABA Routing#: 

Account#: 

Name of account: 

Federal Tax#: 

Albina Community Bank 

430 NW 10th Ave., Portland, OR 97209 

123006651 

001454692009 

IOL TA Trust Account 

93-0386858 

This electronic transfer shall be made within ninety (90) days after the Court enters the Consent 

Decree. 

7. NWEA reserves the right to seek an award for reasonable attorneys' fees and 

costs incurred after entry of this Consent Decree in connection with any disagreement between 

the Paiiies concerning the interpretation, proposed modification, or performance of any aspect of 

this Consent Decree. In the event that NWEA seeks such fees and costs, the Parties shall attempt 

to reach agreement as to the appropriate amount ofrecovery. If the Parties are unable to reach 

agreement, NWEA may file an application with the Court for such recovery. 

V. CONTINUING JURISDICTION 

8. This Court shall retain jurisdiction over this matter and allow this action to be 

reopened for the purpose of enabling the Parties to this Consent Decree to apply to the Comi for 

any further order that may be necessary to construe, carry out, enforce compliance and/or resolve 

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any dispute regarding the terms or conditions of this Consent Decree, and for granting any 

further relief as the interests of justice may require. 

9. Nothing in this Consent Decree shall be construed to limit the equitable powers of 

the Court to modify those terms upon a showing of good cause by any party. 

10. Nothing in the terms of this Consent Decree shall be construed to confer upon this 

Court jurisdiction to review any decision, either procedural or substantive, to be made by EPA 

pursuant to this Decree, except for the purpose of determining EPA' s compliance with this 

Decree, and nothing in this Consent Decree alters or affects the standards for judicial review of 

final EPA action. 

VI. DISPUTE RESOLUTION 

11. In the event of a disagreement between the Parties concerning the interpretation of 

any provision of this Consent Decree or performance thereof, the dissatisfied Party shall provide 

the other Party with written notice of the dispute and a request for negotiations. The Parties agree 

to negotiate in good faith regarding any disagreement. If the Parties cannot resolve such 

disagreement within thirty (30) days after receipt of the notice by the other Party or within such 

other period of time to which the Parties mutually agree, then either Party may move the Court to 

resolve the dispute. Pursuant to the Federal Rules of Civil Procedure and the Local Rules for the 

District of Oregon, the non-moving Party shall have the opportunity to respond to such motion, 

and either Party may seek oral argument before the Cami. 

VII. MODIFICATIONS AND EXTENSIONS 

12. Any term set forth in this Consent Decree (including any deadlines) may be 

modified by written agreement of the Parties and approval of the Court. 

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13. In the event EPA seeks to extend any deadline(s) set forth in Paragraphs 4, 5, or 6 

above, EPA shall notify NWEA of its intent to seek such extension( s) in writing as expeditiously 

as practicable after so determining and as far in advance of the applicable deadline as practicable. 

A request for extension shall show good cause, by written explanation with supporting 

documentation, justifying EPA' s request. 

14. If either Party seeks to modify the terms of this Consent Decree pursuant to 

Paragraph 12, that Party shall provide the other Party with written notice of the proposed 

modifications and a request for negotiations. The Parties agree to negotiate in good faith regarding 

any proposed modification of the Consent Decree. If the Parties agree to a proposed modification, 

the Parties shall jointly notify the Court of the modification and request Court approval. If the 

Parties cannot reach agreement regarding the proposed modification within thirty (30) days after 

receipt of the notice of the proposed modification by the other Party or within such other time to 

which the Parties mutually agree, then either Party may move the Court for such modification. 

Pursuant to the Federal Rules of Civil Procedure and the Local Rules for the District of Oregon, 

the non-moving Party shall have the opp01iunity to respond to such motion, and either Party may 

seek oral argument before the Court. 

VIII. EFFECTIVE DATE 

15. This Consent Decree shall become effective upon the date of its entry by the 

Court. If for any reason the District Court does not enter this Consent Decree, the obligations set 

forth in this Decree are null and void. 

IX. TERMINATION OF CONSENT DECREE 

16. This Consent Decree shall terminate after fulfillment of EPA' s obligations under 

Parts III and IV, above. Upon completion ofEPA's obligations under Parts III and IV, the 

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Parties shall file a joint motion seeking termination of this Consent Decree and dismissal of this 

case with prejudice. 

X. NOTICE AND CORRESPONDENCE 

17. Any notice, including correspondence, required or made with respect to this 

Consent Decree, shall be in writing and shall be effective upon receipt. For any matter relating to 

this Consent Decree, the contact persons are: 

ForNWEA: 

For EPA: 

James N. Saul 

Allison LaPlante 

Earthrise Law Center at Lewis & Clark Law School 

10015 S.W. Terwilliger Blvd. 

Portland, OR 97219 

Chief, Environmental Defense Section 

United States Department of Justice 

Environment & Natural Resources Division 

P.O. Box 7611 

Washington, D.C. 20044 

Associate General Counsel 

Office of General Counsel, 2355A 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. N.W. 

Washington, D.C. 20460 

Alexander Fidis 

Office of Regional Counsel 

U.S. Environmental Protection Agency 

1200 Sixth Ave, Suite 900 

M/S ORC-113 

Seattle, WA 98101 

Upon written notice to the other Parties, any Party may designate a successor contact person for 

any matter relating to this Consent Decree. 

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XI. RELEASE BY PLAINTIFF AND RESERVATION OF RIGHTS 

18. Upon entry, this Consent Decree shall constitute a complete and final settlement 

of all claims asserted, or that could have been asserted, by NWEA in the Complaint, subject to 

the express reservations of rights in Paragraphs 7 and 20-23 herein. 

19. NWEA hereby forever releases, discharges, and covenants not to assert against 

EPA (by way of the commencement of an action, the joinder of EPA in an existing action or in 

an existing action or in any other fashion) any and all claims, causes of action, suits or demands 

of any kind whatsoever in law or in equity, that NWEA may have had, or may now or hereafter 

have, against EPA based upon the same transaction or occurrence as that at issue in the 

Complaint. 

20. Nothing in this Decree shall limit NWEA's rights to assert the claim pleaded in 

NWEA's Complaint, and make any legal or factual assertions necessary to support a claim, in 

the event that the Parties are before the Court pursuant to Paragraph 11 ("Dispute Resolution") or 

Paragraphs 12-13 ("Modifications and Extensions"). 

21. Nothing in this Decree shall otherwise waive or limit NWEA' s rights to challenge 

in a separate lawsuit the merits of any final agency action taken by EPA pursuant to this Consent 

Decree pertaining to EPA's final action on Oregon's water quality standards pursuant to this 

Consent Decree. 

22. Nothing in this Decree shall otherwise waive or limit NWEA's rights to bring any 

actions or claims regarding EPA's obligations in states other than Oregon or to challenge any 

EPA action related to Oregon's water quality standards except as identified in Paragraph 19. 

23. EPA and the United States reserve all defenses to such actions or claims 

referenced in Paragraphs 7 and 20-23. 

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XII. FORCE MAJEURE 

24. The possibility exists that circumstances outside the reasonable control of EPA 

could delay compliance with the deadlines specified in this Consent Decree. Such circumstances 

include, but are not limited to, an environmental disaster that would require EPA employees to 

divert resources away from the project, or a government shutdown. Should a delay occur due to 

circumstances outside the reasonable control of EPA, any resulting failure to meet the deadlines 

set fmih herein shall not constitute a failure to comply with the terms of the Consent Decree, and 

any deadlines occurring during or within one hundred twenty (120) days of the termination of the 

delay shall be extended one day for each day of the delay. EPA will provide NWEA with notice 

as soon as is reasonably possible in the event that EPA invokes this term of the Consent Decree 

and will provide NWEA with an explanation of EPA's basis for invoking this paragraph. 

NWEA may challenge the invocation of this term of the Consent Decree under the dispute 

resolution terms of Part VI of this Consent Decree, and EPA shall bear the burden of justifying 

the invocation of this term. 

XIII. MUTUAL DRAFTING AND CONSTRUCTION 

25. It is hereby expressly understood and agreed that this Consent Decree was jointly 

drafted by NWEA and EPA. Accordingly, the parties hereby agree that any and all rules of 

construction to the effect that ambiguity is construed against the drafting party shall be 

inapplicable in any dispute concerning the terms, meaning, or interpretation of this Decree. 

XIV. EFFECT OF DECREE 

26. This Consent Decree shall not constitute an admission or evidence of any issue of 

fact or law, wrongdoing, misconduct, or liability on the part of any party. 

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XV. SCOPE OF DECREE 

27. Except as expressly provided in this Consent Decree, none of the parties waives 

or relinquishes any legal rights, claims, or defenses it may have. Nothing in the terms of this 

Consent Decree shall be construed to limit or modify the discretion accorded EPA under the 

Clean Water Act or by general principles of administrative law. Nothing in this Consent Decree 

shall be construed to make any other person or entity not executing this Consent Decree a thirdparty beneficiary to this Consent Decree. 

XVI. COUNTERPARTS 

28. This Consent Decree may be executed in any number of counterpart originals, 

each of which shall be deemed to constitute an original agreement, and all of which shall 

constitute one agreement. The execution of one counterpart by any Party shall have the same 

force and effect as if that Party had signed all other counterparts. 

XVII. APPLICABLE LAW 

29. This Consent Decree shall be governed by and construed under the laws of the 

United States. 

XVIII. SEVERABILITY 

30. Subsequent to entry of this Consent Decree by the Court, if any term, condition or 

provision of this Consent Decree, or the application thereof to any person or circumstance, shall 

to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute 

by the United States invalid, void or unenforceable, the remainder of the terms, covenants, 

conditions or provisions of this Decree, or the application thereof to any person or circumstance, 

shall remain in full force and effect and shall in no way be affected, impaired or invalidated 

thereby. 

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XIX. COMPLIANCE WITH OTHER LAWS 

31. No provision in this Consent Decree shall be interpreted as or constitute a 

commitment or requirement that EPA take action in contravention of the Administrative 

Procedure Act, 5 U.S.C. §§ 551-559, 701-706; the Clean Water Act, 33 U.S.C. §§ 1251-1387, 

the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other law or regulation, either substantive or 

procedural. 

XX. REPRESENTATIVE AUTHORITY 

32. Each person signing this Consent Decree certifies that he or she has been duly 

authorized to enter into and execute the terms and conditions of this Consent Decree by the party 

on whose behalf it is indicated that the person is signing, and to legally bind such party to this 

Consent Decree. By signature below, all of the Parties consent to the entry of this Consent 

Decree. 

IT IS SO ORDERED. 

Dated and entered this~~_ day of March, 2020. 

Third Amended Consent Decree - page 12 

United States Senior 

District Judge 

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