Agencies ordered to share documents with environmentalists

Mateusz Perkowski
Capital Press

February 26, 2009

A federal district court has ordered three federal agencies to turn over documents related to Oregon's water quality standards to an environmentalist group.

The Feb. 11 ruling ordered the Environmental Protection Agency, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service to release administrative records that the agencies argued were confidential.

The documents must be turned over to Northwest Environmental Advocates, a nonprofit group that claims the three agencies violated the Clean Water Act and Endangered Species Act by approving Oregon's water quality standards.

Those standards are used by the Oregon Department of Environmental Quality as a basis for regulating water quality conditions in the state.

Each state must seek federal approval of the standards it develops.

Northwest Environmental Advocates initially filed suit against the three agencies in 2005.

The group claims that the EPA disregarded "provisions in Oregon's water quality standards relating to logging, grazing, agriculture and other activities that weaken and undermine" water quality criteria, among other allegations.

According to the complaint, EPA and the other two agencies approved Oregon's standards even though they were lax in terms of water temperature and dissolved oxygen levels.

As part of the lawsuit, the three agencies turned over some records for judicial review but "have sought to shield numerous documents," arguing that they're protected by confidentiality laws, according to court documents.

U.S. District Judge Ancer Haggerty ruled that the agencies must release "most of the draft scientific documents that have been withheld until this point," but did not require them to disclose records that "represent the give-and-take of the agencies' internal deliberations."

However, the judge did order the agencies to release one e-mail in which government employees suggest that a certain water temperature standard may overly conservative and create unattainable expectations.

In that e-mail, an employee said the agency should "incorporate the 'feasibility' standard as well as the biological opinion standard," according to court papers.

That line of reasoning deviates from the intent of federal law, since the employees were using "non-scientific factors" in their deliberative process, Haggerty said.

"That the release of this document may discourage inappropriate policy decisions may in fact lead to better agency decision-making," according to the ruling.