Citing pollution problems in Puget Sound, an environmental group
is asking the Environmental Protection Agency to revoke Washington
state’s authority to enforce the federal Clean Water Act.
Environmental Advocates, based in Portland, says a review of
103 discharge permits issued by the Washington Department of
Ecology shows a failure to control nitrogen pollution. Excess
nitrogen reduces oxygen levels in the water and triggers algae
blooms, resulting in serious problems in Puget Sound, according to
petition submitted to the EPA.
“Ecology determined that over 80 percent of the human sources of
nitrogen in Puget Sound comes from cities and towns, but it
continues to issue discharge permits as if it were completely
ignorant of these facts,” Nina Bell, the group’s executive
director, said in a
“It’s just flat out illegal to issue permits that contribute to
harmful pollution levels,” she added. “These permits are the
walking dead, existing merely to create the impression that the
state is doing its job to control water pollution when it is
The 113-page petition filed by NWEA describes the problems that
nitrogen can cause and the need to implement nitrogen-removal
systems, especially in sewage-treatment plants that discharge into
Puget Sound. EPA should either require Ecology to take action on
nitrogen or remove Ecology’s authority to issue permits under the
Clean Water Act, the petition says.
Asked to respond, Heather Bartlett, manager of Ecology’s Water
Quality Program, offered this statement:
“Washington’s water quality permitting program is a role model
in the nation. EPA and other states follow our lead when building
their programs. We are surprised that Northwest Environmental
Advocates has chosen to file this petition rather to appeal the
permits they cite.”
In December, the environmental group filed a
lawsuit against the EPA and the National Oceanic and
Atmospheric Administration for continuing to fully fund the
Department of Ecology at $5 million a year to control polluted
runoff under the Clean Water Act and the Coastal Zone Act
“In 1998, the federal agencies told Washington that it was
failing to control pollution from farming and logging, dairy
operations, urban runoff, on-site septic systems, pesticides . . .
you name it,” said Bell in a
December news release.
“There is no evidence that at any point in the last 18 years
Washington has improved its control of polluted runoff,” she said.
“Certainly Puget Sound is as polluted as ever. The passage of time
demonstrates that the agencies’ decision to continue unlawful
federal funding has not produced results.”
The lawsuit asserts that federal law requires that the EPA and
NOAA withhold at least one-third of the federal funds from states
that fail to obtain approval for their plans to control nonpoint
source runoff, such as stormwater. Since 1998, the state has been
on notice that its plan was not acceptable.
NWEA filed a similar lawsuit in Oregon in 2009 and settled out
of court a year later, according to Bell. But the state’s proposed
pollution plan was disapproved in 2015, and Oregon’s annual funding
was subsequently cut by $1.2 million. For documents in the Oregon
NWEA’s document library.
The lawsuit challenging Ecology’s actions was filed in U.S.
District Court in Seattle, where legal proceedings are moving
The Environmental Protection Agency is moving forward to protect
people’s health from toxic chemicals, despite an executive order
from President Trump that requires two existing regulations to be
repealed for every new regulation approved.
On Tuesday, the EPA will hold a public hearing to help develop
rules for controlling the use of 10 chemicals evaluated under the
revised Toxic Substances Control Act. (See
EPA Public Workshop.) As I described in
Water Ways, Dec. 1, these high-hazard chemicals could be banned
or significantly restricted in their use. Seven of the first 10
under review have been found in drinking water at various sites
across the country.
Preliminary information about the chemical risks and the
evaluation process can be found on
EPA’s TSCA website.
The revised Toxic Substances Control Act received overwhelming
bipartisan approval in Congress. Even the chemical industry
supported the law, in part because it would limit what states can
do to ban chemicals on their own. Check out my story in the
of Puget Sound.
We have yet to see how Trump’s executive order on controlling
regulations will affect upcoming rules for toxic chemicals, but the
order is already causing some confusion. It has been ridiculed as
“nonsensical” by environmental groups, which filed a lawsuit this
week seeking to overturn the order. More than a few Republicans say
they don’t know how it will work.
One of the primary objections to the order is that it totally
ignores the potential financial benefits — not to mention the
health and environmental improvements — brought about by many
regulations. What is considered an extra expenditure by industry,
for example, could ultimately save more money in health costs for
people who benefit from the rules.
Christine Todd Whitman, a Republican who headed the EPA under
former President George W. Bush, said major changes can be expected
anytime a new administration comes into office, but Trump may be
“It’s the two-for-one that bothers me that most,” Whitman said
in an interview with
NPR’s “Here & Now.”
“I mean, it’s one thing to say, ‘Look, we need to scrub our
regulations. We need to make sure that those that we have in place
are doing the jobs they’re supposed to do, that they haven’t
outlived their usefulness, that they are not holding back our
ability to grow as a country, economically,” she said. “But
two-for-one just doesn’t make a whole lot of sense, because there’s
just not a bucket somewhere sitting with useless regulations.”
Trump’s executive order creates a conflict with court rulings
and scientific evidence requiring updated regulations under the
law, she said. “And, what you don’t want to do is to say, ‘Well,
we’re just not gonna move forward with any new regulations, because
we can’t find a regulation that we think is irrelevant.'”
As stated in the complaint, “The executive order will block or
force the repeal of regulations needed to protect health, safety
and the environment across a broad range of topics — from
automobile safety, to occupational health, to air pollution, to
“Indeed, the executive order directs agencies to disregard the
benefits of new and existing rules — including benefits to
consumers, to workers, to people exposed to pollution, and to the
economy — even when the benefits exceed costs.
“The executive order’s direction to federal agencies to zero out
costs to regulated industries … will force agencies to take
regulatory actions that harm the people of this nation,” the
Methods for approving and repealing regulations are spelled out
in the longstanding Administrative Procedures Act as well as
various statutes approved by Congress — and they cannot be
overridden by an executive order, the lawsuit claims.
With regard to the Toxic Substances Control Act, the law
requires EPA to evaluate chemicals for safety “without
consideration of costs or other nonrisk factors.” One chemical
under review is trichloroethylene, which has been found to harm
developing fetuses and cause various forms of cancer in humans.
“The agency estimates that the [proposed] vapor-degreasing rule
will impose costs from $30 million to $45 million annually but have
net benefits (including health protection benefits) of $35 million
to $402 million annually,” the lawsuit says, “and that the
aerosol-degreasing and spot-cleaning rule will impose costs of
$170,000 annually but have net benefits of $9 million to $24.6
The executive order requires that new protective regulations be
offset by repealing existing regulations without considering the
cost benefits of either the new regulations or the old ones.
“To repeal two toxic substance safety standards for the purpose
of adopting one would be arbitrary, capricious, an abuse of
discretion and contrary to the TSCA,” the lawsuit says.
While reading over the legal complaint, I was wondering if these
groups might have filed the lawsuit too soon. Normally, the courts
will not rule on a case like this before the government takes an
action that causes actual harm. Perhaps, I thought, they really
need to wait until an agency either refuses to approve a new
regulation or repeals an existing one in violation of federal
Then I realized that various environmental laws allow for any
citizen to bring a lawsuit against the federal government for
failure to protect human health, the environment or endangered
species. In challenging the executive order, the NRDC points out
that the president’s directive, if it stands, could force
environmental groups to make some life-or-death decisions.
The Endangered Species Act, for example, does not allow federal
agencies to consider costs when listing species as threatened or
endangered, but costs must be balanced when protecting “critical
habitat” to help avoid extinction. Trump’s executive order itself
goes well beyond the balancing of costs spelled out in the ESA,
according to the lawsuit.
Furthermore, the NRDC and other groups will sometimes sue the
government to compel an agency to designate critical habitat. The
executive order places groups like the NRDC in an “untenable
position,” according to the lawsuit. They can either file a
lawsuit, knowing that the responsible agency will then proceed to
eliminate critical habitat designations for two other species, or
they can allow the agency to continue to violate the Endangered
The NRDC argues that the latter would be detrimental not only to
the species at risk but also to people who have scientific,
recreational, aesthetic and other interests in protecting that
species. One way or another, the NRDC argues, the executive order
will have a detrimental effect on threatened and endangered species
as a whole, contrary to the law approved by Congress.
So far, I have heard of no agencies delaying, avoiding or
repealing regulations on account of the new executive order. But,
considering that federal agencies come under the president’s
authority, we can expect that legal battles have just begun, and
this matter may require congressional intervention.
Two days before Donald Trump became president, the Puget Sound
Federal Task Force released a draft of the federal action plan for
the recovery of Puget Sound.
The Trump transition raises uncertainty about the future of this
plan, but at least the incoming administration has a document to
work with, as described by Steve Kopecky of the White House Council
on Environmental Quality. (See
Water Ways, Dec. 22.)
Speaking last month before the Puget Sound Partnership’s
Leadership Council, Kopecky acknowledged that the plan would go
through many changes over time, with or without a new
“That being said, the first one is probably the most powerful,”
he said. “It is the model that new folks are going to use, so we’re
trying to make sure that we have a good solid foundation model
before we all collectively go out the door.”
A draft of a Federal Action Plan to protect and restore Puget
Sound is scheduled for completion before Donald Trump takes office
on Jan. 20, according to officials involved in developing the
The plan will help demonstrate that Washington state and nine
federal agencies are aligned in their efforts to recover one of the
most important waterways in the nation, according to leaders
involved in a new Federal Puget Sound Task Force.
The task force was created in October by President Obama, who
essentially elevated Puget Sound to a high-priority ecosystem, on
par with Chesapeake Bay, the Florida Everglades and the Great
Lakes, according to a
news release from the White House.
memorandum of understanding (MOU) signed among federal agencies
replaces a less structured MOU that was scheduled to expire next
year. The new agreement calls for a five-year action plan to be
completed by June 1, but a draft should be ready by Jan. 18,
according to Peter Murchie, who manages Puget Sound issues for the
Environmental Protection Agency and chairs the task force.
“Part of the goal is to have something in front of the
transition folks … that they can then shepherd through individual
budget and prioritization processes that they’ll be doing with new
leadership,” Murchie told the Puget Sound Partnership’s Leadership
Council two weeks ago.
The first 10 toxic chemicals to be reviewed under the amended
Toxic Substances Control Act were announced this week by the
Environmental Protection Agency. After review, these chemicals
could be banned or significantly restricted in their use.
As specified by law, the first 10 chemicals were chosen from 90
listed in the TSCA Work Plan, based on their high hazard and the
likelihood of human and environmental exposure.
Incidentally, seven of the 10 chemicals to be reviewed are
contaminants that have reached sources of drinking water at various
sites across the country. Six of the seven are known or suspected
of causing cancer in humans.
These are the seven chemicals known to contaminate drinking
The Environmental Protection Agency approved new water-quality
standards for Washington state this week, overriding a plan
approved by Gov. Jay Inslee and the state Department of
It was a rare posture for the EPA. Now the state will be
pressured to appeal the EPA standards to federal court. Cities and
counties as well as some industrial organizations are clearly
unhappy with the EPA’s action, while environmental and tribal
representatives got most of what they wanted.
The EPA action is especially unusual, given that this state is
known for some of the strongest environmental regulations in the
country. After much dispute, Ecology finally agreed to much higher
fish-consumption rates without increasing the cancer-risk rate,
leading to more stringent standards for many of the chemicals. But
Ecology had its own ideas for the most troublesome compounds with
implications for human health. They include polychlorinated
biphenyls (PCBs), arsenic and mercury. For background, see
Water Ways, Oct. 18, 2015.
Some news reports I saw this week said EPA’s action will lead to
salmon that are safer to eat. But that’s not at all certain, and
opponents say it is unlikely that the revised limits on chemical
pollution will have any practical effect on compounds that affect
While talking to researchers and investigating a variety of
biologically active compounds, I began to realize the complexity of
the body’s internal chemistry. I thought I knew something about the
endocrine system, but I never fully considered how one hormone can
trigger responses in multiple organs, including the release of
additional hormones, even creating feedback loops.
The long-running controversy over Washington state’s water
quality standards for toxic chemicals is nearly over. We will soon
know just how pure the water must be to get a clean bill of
We still don’t know whether the Environmental Protection Agency
will approve the new state standards adopted this week or impose
more stringent standards that EPA developed for several key
pollutants. The EPA has already taken public comments on its
“We believe our new rule is strong, yet reasonable,” said Maia
Bellon, director of the Washington Department of Ecology, in a
release. “It sets standards that are protective and achievable.
With this rule now complete, we will continue to press forward to
reduce and eliminate toxics from every-day sources.”
For more than two years, much of the controversy focused on the
fish-consumption rate — an assumption about how much fish that
people eat. The FCR is a major factor in the equation used to set
the concentration of chemicals allowed in water before the waterway
is declared impaired. (See early discussions in
Water Ways, Nov. 11, 2010.)
Initially, after plenty of debate, the state proposed increasing
the FCR from 6.5 grams per day to 175 grams per day — a 27-fold
increase. The initial proposal counter-balanced the effect somewhat
by increasing the cancer-risk rate from one in a million to one in
100,000 — a 10-fold shift. Eventually, the state agreed to retain
the one-in-a-million rate.
As I described in
Water Ways last October, some key differences remain between
the state and EPA proposals. Factors used by the EPA result in more
stringent standards. The state also proposes a different approach
for PCBs, mercury and arsenic, which are not easily controlled by
regulating industrial facilities and sewage-treatment plants — the
primary point sources of pollution.
PCB standards proposed by the EPA make representatives of
industry and sewage-treatment systems very nervous. Water-quality
standards are the starting points for placing legal limits on
discharges, and EPA’s standard of 7.6 picograms per liter cannot be
attained in many cases without much higher levels of treatment,
Entities in Eastern Washington are in the midst of planning
efforts to control pollution in the Spokane River, and major sewer
upgrades are under consideration, the letter says.
“If Ecology were to follow the same approach on Puget Sound that
it has on the Spokane River, this would amount to a range of
compliance costs from nearly $6 billion to over $11 billion for
just the major permits identified by EPA,” the letter continues. “A
more stringent PCB criterion is also likely to impact how
stormwater is managed, as PCB concentrations have been detected in
stormwater throughout the state.”
For pulp and paper mills using recycled paper, the primary
source of PCBs is the ink containing the toxic compounds at
EPA-allowed concentrations, the letter says. Other major sources
are neighborhoods, where PCBs are used in construction materials,
and fish hatcheries, where PCBs come from fishmeal.
The letter points out similar problems for EPA’s proposed
mercury standard, calling the level “overly conservative and
unattainable in Washington (and the rest of the United States), as
the levels of mercury in fish are consistently higher than the
When water-quality criteria cannot be attained for certain
chemicals using existing water-treatment technology, facilities may
be granted a variance or placed under a compliance schedule. Both
environmentalists and facility owners have expressed concern over
uncertainties about how the agencies might use these
Despite the uncertainties, environmentalists and Indian tribes
in Washington state generally support the more stringent standards
proposed by the EPA.
“Tribes concur that water quality discharge standards are only a
part of the toxic chemical problem in the state of Washington and
that more efforts toward source control and toxic cleanup are
needed,” writes Lorraine Loomis of the
Northwest Indian Fisheries Commission. “However, the standards
are an essential anchor for determining where and how to deploy
toxic reduction efforts and monitor enforcement.”
When I said this controversy is nearly over, I was referring to
a time schedule imposed this week by U.S. District Judge Barbara
Rothstein, who ruled that the EPA missed its own deadlines for
updating water quality criteria.
Rothstein, responding to claims from five environmental groups,
imposed a new deadline based on EPA’s own suggested dates. Because
the state has finalized its rule, the EPA now has until Nov. 15 to
either approve the state’s criteria or sign a notice imposing its
own standards. Checkout the
judge’s ruling (PDF 494 kb).
The new criteria won’t have any practical effect until applied
to federal discharge permits for specific facilities or in
developing cleanup plans for specific bodies of water — although
state inspectors could use the new state criteria for enforcing
state laws if they discover illegal discharges.
Congress is on the verge of passing a law that would open a door
for invasive species to sneak into Puget Sound from San Francisco
Bay — known as the most infested waterway in the country.
The proposed legislation, supported by the shipping industry, is
focused on reducing regulations surrounding the release of ballast
water, which large ships use to maintain stability. Environmental
groups and officials from at least nine states have voiced their
opposition to the proposal, saying it could result in long-term
damage to coastal and Great
Ballast water doesn’t get much attention in the media, but it
has been associated with the transfer of invasive species
throughout the world. Ships often take on ballast water at ports
where they unload their cargo before moving to their next
destination for a new load. As ships take on cargo, they discharge
ballast water from the previous location — along with any organisms
that hitched a ride.
Introduced species may multiply, displace native species and
disrupt the food web. Lacking natural predators, some invasive
species have been known to grow out of control, taking over beaches
or underwater areas.
Rules and more rules
To reduce the risk of invasive species, the U.S. Coast Guard
requires vessels from foreign countries to exchange their ballast
water at sea before entering U.S. waters. Studies have shown that
most organisms living out in the ocean don’t survive in coastal
waters, and vice versa. So it is less risky for Puget Sound to
receive ballast water picked up well off the coast than from
another coastal inlet.
Ships that don’t discharge ballast water don’t need to comply
with the Coast Guard’s ballast-exchange rule, nor do any ships
transiting the U.S. coast, such as those coming into Puget Sound
For years, fears have been growing that Puget Sound will become
invaded by species that could alter sea life as we know it today.
San Francisco Bay is dominated by more than 200 non-native species,
including the European
green crab and the Asian
clam — both of which have caused enormous economic losses to
the shellfish industry in various locations.
In contrast, Puget Sound has become home to an identified 74
non-native marine species, although early introductions of exotic
plankton — including some that produce toxins — could have gone
In reaction to growing concerns about invasive species, the
Washington Legislature passed a law in 2000 that requires ballast
exchange for ships arriving from anywhere outside a “common waters”
zone. That’s an area from the Columbia River to just north of
Vancouver, B.C. Consequently, ships from California that intend to
release ballast water into Puget Sound must first exchange their
ballast water at least 50 miles off the coast.
While the exchange of ballast water has been relatively
effective in controlling the release of non-native species, the
technique has always been considered an interim measure. Treating
ballast water to kill organisms has been the long-term goal — and
that’s where the confusion and frustration begins.
The International Maritime Organization has one treatment
standard nearing final adoption for ships throughout the world. The
Coast Guard says the IMO requirement to eliminate “viable”
organisms — those able to reproduce — is too risky. The Coast Guard
requires that organisms be killed. States may choose to issue their
own standards, and California has proposed the most stringent
treatment standards of all. Still, most of these standards are
essentially on hold pending testing and certification of specific
Shipping companies say all these costly and conflicting rules
are too difficult to navigate for businesses dealing in interstate
and international commerce. But that’s not all the rules they may
The Environmental Protection Agency became involved in ballast
water in 2008, after federal courts ruled that the shipping
industry is not exempt from the Clean Water Act. The EPA then came
up with a “vessel general permit” for ballast water and other
discharges from ships, a permit that was challenged twice by
environmental groups. Each time, the courts ruled against the
The latest EPA permit failed to require the “best available
technology” for ballast water treatment, failed to set numerical
standards, failed to require monitoring, and failed to meet other
provisions of the Clean Water Act, according to a ruling
handed down in October (PDF 6.4 mb) by the Second Circuit Court
of Appeals in New York. A revised permit is now in the works.
Legislation and politics
That brings us to the controversial legislation, called the
Vessel Incidental Discharge Act, or VIDA. The essence of the bill
is to eliminate state jurisdiction and any oversight by the EPA.
Upon enactment, only Coast Guard rules would apply, and ships from
San Francisco would no longer need to exchange their ballast water
before coming into Washington or Oregon. For an in-depth
understanding of the bill, read the
Congressional Research Service report (PDF 3.5 mb).
The lack of coastwise ballast exchange is the biggest concern of
officials along the West Coast, where similar state requirements
are in effect. In California, the problem is that VIDA would allow
the spread of invasive species from San Francisco Bay to more
pristine bays, such as Humboldt Bay. While the bill allows states
to petition for regulations to deal with local conditions, nobody
knows how that would work. The petition would need scientific proof
that the local regulations are needed and feasible, and the Coast
Guard would have 90 days to make a decision.
In the U.S. House of Representatives, VIDA became attached to
the National Defense Authorization Act, which was approved. NDAA is
a “must-pass” bill to authorize military funding and many other
things associated with national defense.
The Senate version of the defense bill does not contain the VIDA
provision. While the two bills are technically in a conference
committee, insiders tell me that top leaders in the House and
Senate must engage in political battles over the critical defense
bill and try to work out a compromise to gain approval in both
The shipping industry is lobbying hard for VIDA to stay in the
compromise bill, while environmentalists want to take it out. We
may not know which of the related and unrelated riders on the bill
will survive until the bill is ready for congressional action.
In the Senate, Florida’s Sen. Marco Rubio was the original
sponsor of the legislation when it was a stand-alone bill.
Republicans would like him to get a win for the folks back home,
where Rubio is engaged in a tight election race. (See Dan
Friedman’s story in Fortune.)
President Obama, threatening a veto, lists VIDA as one of many
provisions that he opposes in the House version of the National
Defense Authorization Act. See
Statement of Administration Policy (PDF 1.2 mb). Nobody thinks
he would veto the bill over ballast water alone.
Many shipping industry officials say they don’t object to
stringent treatment standards. They only wish to avoid multiple,
confusing standards. They also would like some assurance that the
standards are technically feasible and won’t require ongoing costly
changes to equipment.
Environmentalists say they don’t want to lose the authority of
the Clean Water Act, which allows average citizens to bring
lawsuits to protect the environment.
“The Clean Water Act is a tried and true approach for
controlling water pollution problems,” said Nina Bell of Northwest
Environmental Advocates in Portland. Her group was among those that
brought the lawsuit
against the EPA (PDF 6.8 mb).
“I think we are poised to make some real progress,” Nina told
me. “VIDA opts instead to take away authority from the
Environmental Protection Agency and give it to the Coast Guard,
which has no environmental expertise. The Coast Guard has a lot of
priorities, such as keeping people safe on ships and protecting our
waters, but this is not one of them.”
The EPA has clear authority to regulate ballast water and limit
the spread of invasive species, she said. If the EPA were to issue
strong requirements, the states would not need their own
Five years ago, I could not have predicted that Washington state
would end up in a serious conflict with the federal government over
water-quality standards to protect people’s health. But it has
happened, and there’s no clear resolution in sight.
The federal Environmental Protection Agency will hold a “virtual
hearing” on this issue in December. Read on for details, but let me
first provide some recent history.
In November 2010, I wrote about the Department of Ecology’s
newest undertaking, as the agency embarked on an effort to define
“how clean is clean” in protecting public health in state waters.
Water Ways Nov. 4, 2010, and also
Kitsap Sun Nov. 2, 2010.
It was obvious at the time that the state would need to increase
its existing fish-consumption rate of 6.5 grams per day — a key
factor in the formula used to calculate the allowable concentration
of toxic chemicals in the water. After much discussion and delay,
the state eventually proposed a rate of 175 grams per day — 27
times higher than the existing rate.
The controversy arrived when the state proposed a cancer risk
rate of one in 100,000 — a risk 10 times higher than the existing
rate of one in a million. The higher cancer risk rate would
somewhat offset the effect of the much higher fish-consumption
rate. Other factors were changed as well, as I described in the
second of a two-part series in the
Kitsap Sun, March 11, 2015.
When Gov. Jay Inslee announced the state’s newly proposed
standards, he also proposed new legislation to study and reduce the
sources of toxic chemicals of greatest concern. The Legislation
failed to gain enough support for passage during the past
The governor has since pulled back from the original proposal
and agreed to return to a cancer risk rate of one in a million. A
new proposal is expected to be announced after the first of the
year, Meanwhile, the EPA is moving forward with its own proposal,
probably more stringent than what we’ll see from the state. I
outlined the likely differences in
Water Ways on Oct. 8.
On Dec. 15 and 16, the EPA will hold what it’s calling a
“virtual hearing” on the proposed water-quality criteria that the
agency developed for Washington state. The web-based call-in format
is designed to save considerable money, according to Erica Slicy,
contact for the event. Given interest across the state, multiple
in-person hearings in numerous locations would be needed to
accomplish what two phone-in hearings can do, she said.
People will be able to watch the virtual hearing and/or testify
registering on EPA’s website. The event will be recorded and
transcribed so that people will be able to review the comments
later. Written comments will be taken until Dec. 28.
If the state comes up with proposed water-quality standards, as
expected, the EPA could put the federal proposal on hold while the
state’s proposal undergoes considerable scrutiny. Meanwhile, I’m
sure supporters of the more stringent standards — such as Indian
tribes and environmental groups — will continue to be frustrated by