Harmful Algal Bloom in Ross Island Lagoon. Photo Courtesy of Human Access Project.

An NEDC lawsuit has resulted in significant new protections for the Willamette River’s Ross Island lagoon, a critically important location for fish, wildlife, and recreation in the heart of Portland. NEDC has finalized a Settlement Agreement with the Oregon Department of Environmental Quality, after NEDC challenged a Clean Water Act certification issued to Ross Island Sand and Gravel in 2022. NEDC argued that DEQ had failed to ensure that RISG activities in the lagoon would comply with state water quality standards. Now, to resolve that case DEQ has agreed to withdraw the challenged Certification, and issue a new one with additional measures to protect water quality in the lagoon and downstream in the Willamette River. Critically, the new Certification will require RISG to implement new measures each summer to control or eliminate Harmful Algal Blooms that have become more frequent in recent years.

Background

From 1926-2001, Ross Island Sand and Gravel Co. mined the Ross Island lagoon. these mining activities significantly altered and in some areas degraded the island and lagoon habitat. Since 1979 RISG has been required to perform restoration activities at the site–including the recreation of upland forest, wetlands, and shallow water habitat important for threatened salmon and steelhead. Reclamation progress has slowed in recent years, and now, over 40 years since reclamation activities began, it is unclear when these activities will be completed. In the meantime, water quality in the lagoon is deteriorating and has become dangerous for salmon, steelhead, and other sensitive aquatic species.

The primary driver of these risks for aquatic species is a Harmful Algal Bloom (HAB), that has unfortunately been occurring more frequently in the lagoon in summertime. HABs thrive when three characteristics are found in a water body: warm temperature, nitrogen, and little to no water circulation–all conditions occurring at Ross Island Lagoon.

Because the reclamation activities involve depositing large amounts of fill material in the Willamette River, RISG must obtain a Clean Water Act permit from the U.S. Army Corps of Engineers to perform the work. A necessary component of that permitting process is obtaining a Certification from Oregon DEQ (known as a “§ 401 Certification”) that the RISG operations will comply with all applicable state water quality standards.

In October 2022, DEQ issued a §401 Certification, despite significant concern from NEDC and other local conservation groups. And in early 2023, NEDC filed a lawsuit challenging the Certification. The lawsuit argued that DEQ’s certification must include more robust conditions to ensure reclamation activities do not further degrade water quality in the lagoon. While it is important that these reclamation activities are completed quickly and successfully, regulators cannot sacrifice water quality in this important habitat while the restoration activities are ongoing. In the §401 Certification process, DEQ has a key opportunity to throw a lifeline to threatened salmon and steelhead, and make sure that the restoration work doesn’t further degrade this sensitive area. In the lawsuit, NEDC pointed to several water quality parameters that are affected by reclamation activities, including dangerously high temperatures, increased turbidity, and the presence of Harmful Algal Blooms. NEDC argued that DEQ had failed to ensure, through its Certification, that RISG will comply with these important standards.

The Settlement

We are thrilled to announce that DEQ agreed to withdraw the challenged Certification, and to issue a revised draft Certification with more stringent conditions.

NEDC’s settlement with DEQ will result in crucial new protections for water quality and threatened species in Ross Island lagoon. DEQ will be issuing a new §401 Certification this fall, requiring RISG to undertake additional sampling for multiple key pollutants both within the lagoon and downstream in the Willamette River. RISG will also have to take immediate action whenever this sampling indicated reclamation activities are harming water quality.

The new Certification’s requirements in response to HABs are perhaps most notable. Each time a HAB is found to have formed in the lagoon, RISG will be required to install a silt curtain at the opening of the lagoon and to mechanically skim the algal bloom from the surface of the lagoon until the HAB is no longer present.

In short, this new certification should lead to real improvements in water quality in downtown Portland and in the Willamette River downstream. This is great news for threatened salmon, steelhead, and wildlife in the heart of the city, and for the Portland community, which deserves a Willamette River free of summertime algal blooms. While RISG’s reclamation efforts move forward, NEDC applauds DEQ’s decision to require the company to take more steps to ensure its activities comply with all state water quality standards, and to better control HABs in the Willamette River.

NEDC has been represented in this case, pro bono, by the Law Office of Karl G. Anuta, and by NEDC Staff Attorney Mary Stites.

Watch KGW’s coverage of this important case here!