Tag Archives: Clean Water Act

Legal settlement could help protect salmon eggs incubating in gravel

Washington Department of Ecology has agreed to take steps to protect wild salmon eggs incubating in gravel by developing entirely new water-quality standards to control fine sediment going into streams.

The new standards, yet to be developed, could ultimately limit silty runoff coming from logging operations, housing construction and other operations that can affect water quality. The idea is maintain adequate oxygen to salmon eggs, thus increasing the rate of survival as well as the health of the young fish.

The legal agreement with Ecology grew out of a lawsuit brought by Northwest Environmental Advocates against the federal Environmental Protection Agency. NWEA claimed that the EPA had failed to consult with natural resource agencies while reviewing changes in state water-quality standards, as required by the Endangered Species Act.

The consultation process — which typically involves the National Marine Fisheries Service, U.S. Fish and Wildlife Service, or both — is designed to make sure that endangered species are not put at risk of extinction by any actions involving the federal government.

The lawsuit covered a host of water-quality standards developed under the federal Clean Water Act and approved by Washington state since 2003. The U.S. District Court in Seattle ruled that water-quality standards adopted more than six years earlier were beyond the statute of limitations, but some standards will now be reviewed through consultation procedures.

The settlement process itself has become a political issue, according to environmental groups, as I will describe in a moment.

The levels of ammonia allowed by Ecology in both freshwater and seawater must go through a formal review under ESA within three years, as spelled out in the settlement agreement. Ammonia is a constituent of sewage effluent, livestock operations and some industrial processes. In high enough levels, it can be toxic to fish.

Melissa Gildersleeve, a manager in Ecology’s Water Quality Program, said she believes the state’s current standards for ammonia are adequate to protect salmon and should be confirmed through the upcoming review process — although NWEA contends that the standards are out of date and should be revised.

Gildersleeve said water-quality criteria for fine-sediment is something that Ecology has wanted to adopt, but experts are finding it difficult to develop a measurable standard that ensures that salmon eggs are getting adequate oxygen.

“We have spent a number of years working on this issue, and we realize that there are challenges to monitor it,” she said. “It was on our to-do list. Now we are trying to figure out how to do that and then go through a formal rule-making process and get comments.”

Under the settlement, Ecology has three years to announce a formal proposal and another year to adopt the new standard for fine sediments. The state’s turbidity standards for streams, which touches on the issue of sediment, will remain in place after adoption of new standards addressing adequate oxygen for salmon eggs.

Another issue in the settlement is how the EPA should deal with “natural conditions” — such as stream temperature — that do not allow salmon or other species to thrive. For example, studies may reveal that a portion of a stream can never meet the approved temperature criteria — even if the stream were to be restored to a pristine condition. A judge in Oregon has ruled that any exemption from the normal criteria because of “natural conditions” is effectively a new water-quality standard.

The EPA agreed to review the process in both Washington and Oregon to determine what steps should be taken when states propose an exemption based on natural conditions. One option would cause an exemption to trigger a biological review and public comments to make sure that the exemption is justified.

The settlement, approved yesterday by U.S. District Judge Ricardo Martinez in Seattle, could have been completed much sooner were it not for a constraining policy issued by former EPA Administrator Scott Pruitt, according to Allison LaPlante, attorney for NWEA. She noted that this was the first settlement in the country to make it through the EPA’S cumbersome review process.

The new policy was issued about a year ago, when Pruitt said it would ensure due process as opposed to a “sue-and-settle” approach. Among other things, it requires publication of any proposed legal settlement along with an extended public comment period.

“The Pruitt policy added more than a year to this settlement process and only resulted in six public comments, all of which supported protecting salmon,” LaPlante said in a news release. “It’s proven to be yet another excuse for agency delays in complying with the Clean Water Act and Endangered Species Act at a time when we can ill afford it, given the dwindling populations of wild salmon and of the orca whales that depend upon salmon.”

Editorial writer Carl Segerstrom discusses the ongoing Pruitt Policy in High Country News.

Nina Bell, executive director of NWEA, has been outspoken about what she considers a failure of environmental agencies to aggressively protect the environment.

“The result of our lawsuit forces EPA and Ecology to take actions to protect threatened and endangered salmon that these agencies should have taken many years ago,” she said in a news release. “For all of the lip service paid by the agencies to saving salmon, they are consistently short on taking any real actions.

“When species are struggling to survive,” she added, “agencies should not be dragging their feet to do what the law requires.”

Federal waters rule gets batted around endlessly in the courtrooms

Confusion is nothing new when it comes to figuring out whether federal agencies have jurisdiction over certain wetlands and intermittent streams under the Clean Water Act. And now the Trump administration has guaranteed that confusion will reign a while longer.

Meanwhile, lawsuits — also nothing new to the Clean Water Act — continue to pile up at a rapid pace.

Some argue that the confusion begins with the 1972 Clean Water Act itself, which requires the U.S. Army Corps of Engineers to issue permits for any filling or dredging — which covers most development — within the “navigable waters” of the country.

Congress defined “navigable waters” in a way that has generated much confusion and many lawsuits through the years: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” the law states.

Even the U.S. Supreme Court couldn’t figure it out and ended up adding to the confusion. In a 4-4-1 split ruling, half the justices focused on “navigable waters” with a narrow definition to include major waterways but avoid federal protection for many wetlands and intermittent streams. The other half of the justices supported a broader definition, which would protect downstream waters by also protecting upstream sources of water.

Writer Steve Zwick of Ecosystem Marketplace does a nice job explaining the legal and historical context for the confusion in a four-part series of articles. Zwick relies on, and gives credit to, the writings of William W. Sapp and William M. Lewis, Jr.

Under the previous administration of Barack Obama, the Army Corps of Engineers and the Environmental Protection Agency worked together to draft a new rule to more clearly define federal jurisdiction over streams and wetlands, as outlined by the broader Supreme Court opinion. It became known as the “Clean Water Rule” or “WOTUS” for Waters of the U.S.

Some potential opponents applauded the certainty of the proposed rule, even if they disagreed with some details. (See Water Ways, March 25, 2014.) But others believed that the states, not the federal government, should be in charge of protecting streams and wetlands. It became a common theme to argue that the new rule would regulate the tiniest ditches and farm ponds — something the Obama administration denied.

One of the opponents of the 2015 rule was Scott Pruitt, Oklahoma’s attorney general who ended up suing the Obama administration on behalf of his state. In all, 31 states joined various lawsuits against the rule, with separate lawsuits brought by farmers and industry.

Scott Pruitt, EPA administrator
Photo: EPA official portrait

“President Obama’s Environmental Protection Agency currently stands poised to strike the greatest blow to private property rights the modern era has seen,” Pruitt declared in an opinion piece co-authored by U.S. Sen. Rand Paul, a Republican from Kentucky. The piece was published in The Hill.

Pruitt, of course, is the man that President Trump later named to head the EPA, the same agency he was suing in multiple lawsuits. Pruitt said early on that he would not allow Obama’s WOTUS rule to go into effect.

Before it took effect, the WOTUS rule was tied up in the courts, including an injunction issued by the Sixth U.S. Circuit Court of Appeals in Cincinnati. Under the Clean Water Act, appeals courts can take primary action under certain conditions, but the U.S. Supreme Court agreed unanimously (PDF 923 kb) on Jan. 22 that the WOTUS rule is not one of these conditions.

And so the rule, originally scheduled to go into effect in August 2015, was put back into a confusing status, ready to go into effect in 37 states where it was not blocked by an injunction that covers 13 states under an order of the U.S. District Court in North Dakota.

“This is just all-out war. All-out litigation,” Vermont Law School professor Pat Parenteau was quoted as saying in an article by Ariel Wittenberg in E&E News. “This is good news for lawyers, but it is not going to be settled at all.”

Pruitt’s EPA then moved to finalize the Obama WOTUS rule on Jan. 31 but with an “applicability date” set for two years away. The announced intent was to overhaul the rule by pulling back federal jurisdiction over streams and wetlands.

“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a news release. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

In the interim, the EPA has announced that it will revert to previous policies and guidelines drafted following the confusing Supreme Court ruling.

You can guess what happened next. On Feb. 6, a total of 10 states, including Washington, plus Washington, D.C., filed a lawsuit in New York, claiming that Pruitt’s delaying tactics were illegal. The state officials, led by New York Attorney General Eric Schneiderman, argued that the federal government ignored the federal Administrative Procedures Act by adopting the revised rule without a meaningful comment period and in disregard of the Clean Water Act’s underlying intent of protecting the nation’s waters.

“The agencies have now suspended the Clean Water Rule without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so,” the lawsuit (PDF 1.9 mb) says.

On the same day, the implementation delay was challenged in a separate lawsuit (2.6 mb) by two environmental groups, Natural Resources Defense Council and National Wildlife Federation.

“The Agencies’ only proffered rationale for the suspension is that it will promote regulatory clarity and certainty,” the lawsuit says. “In light of the administration’s open antipathy for the rule’s provisions, that rationale rings hollow. But it is also belied by the record. There is no evidence that suspending the rule will promote clarity or certainty, and ample evidence that suspending the Rule will create confusion and uncertainty.”

In Ariel Wittenberg’s story in E&E, Georgetown Law professor William Buzbee talks about how messy things have become.

“If the administration had taken the time to put out proposals that truly and fully engaged with the merits of the Clean Waters Rule and tried to come up with a new read, then it would be ordinary days in the courts,” he was quoted as saying. “But anything they do now, given their proposals, is likely to be legally vulnerable.”

Now the possibility exists that some courts could delay implementation of the original WOTUS rule while others reject the two-year delay. In any case, there is no end in sight to the legal battles, and nobody can be certain about what kind of projects will require federal permits.

Petition seeks to revoke Department of Ecology’s clean-water authority

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.

Northwest 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 a 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 news release.

“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 not.”

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What comes next under water-quality standards imposed by the EPA?

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 Ecology.

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 basic structure of polychlorinated biphenyls, where the number and location of chlorine atoms can vary.
The basic structure of polychlorinated biphenyls, where the number and location of chlorine atoms can vary.

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 human health.

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EPA’s ‘virtual hearing’ will address proposed water quality standards

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.

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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. See 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 legislative session.

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 by 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 more delays.

Gov. Inslee yields on cancer risk, pushes new water-quality plan

Gov. Jay Inslee has given in to critics who argued that the state’s updated water-quality standards should not increase the cancer-risk rate for people who eat a lot of fish.

But it appears that a new state proposal, to be made public by early next year, is not likely to satisfy tribal and environmental groups striving for the most stringent water-quality standards, such as those in effect in Oregon.

The Environmental Protection Agency has proposed standards that could be imposed on Washington state, but the agency has committed to holding off if the state comes up with acceptable standards.

In a statement issued today, the governor said he has been pressed to develop a state rule and not let the EPA have the final say:

“My goal all along has been to update Washington’s clean water rule with one that assures the health of Washington’s people, fish and economy. The number one thing I hear over and over when talking with people is how critical it is that we maintain control over creation of this rule to ensure that we’re protecting human health while providing businesses and local governments sensible tools to comply with the stricter standards.”

Efforts to update the state’s water-quality standards have been the focus of a confusing debate for the past several years. The goal of protecting human health has sometimes been forgotten, as I tried to point out in a two-part series published in March in the Kitsap Sun.

Anticipating where this issue is headed, I’m watching three key issues:

1. The formula used to establish the water-quality criteria

Numerical concentrations are established in a mathematical formula applied to about 100 priority pollutants. The first debate was over the fish-consumption rate, or the daily amount of fish that a person might eat. It was generally agreed that the current rate of 6 grams (0.21 ounce) a day was ridiculously low and should be raised to 175 grams (6 ounces) a day.

To balance the effect of that 29-fold increase, Inslee proposed increasing the cancer risk rate from 1 in a million to 1 in 100,000 — a rate approved by the EPA in some states and allowed by EPA guidance. Inslee also included a “no-backsliding” provision, so that none of the current standards would be relaxed (except for arsenic). The EPA has made it clear that 1 in 100,000 was not acceptable, so Inslee consented to go back to the current rate of 1 in a million.

It is important to understand that the formula includes other factors that affect the allowable chemical concentrations. One is the “relative source contribution,” for non-cancer-causing chemicals. The RSC considers how much chemical exposure a person gets from water and fish consumption versus other exposure pathways, such as through the lungs and skin. EPA’s RSC is generally five times lower than the state’s proposal, which means the state would allow a chemical concentration five times higher than EPA. The state intends to stick to its previously proposed RSC, according to Ecology’s Kelly Susewind, a water policy adviser.

The state also uses a bioconcentration factor, which considers the uptake of a chemical from water, whereas EPA uses a bioaccumulation factor, which considers the uptake from all sources. The EPA method produces a more stringent standard.

The state and EPA now seem consistent on most other factors, including body weight, drinking water consumption and toxicity factors, but those two inconsistent factors will make EPA’s proposed standards more stringent than the state’s.

2. Implementation tools

The water quality standards are used as a starting point for issuing permits for discharges from point sources of pollution, such as industrial and sewage-treatment outfalls. Special consideration can be given when proven technology is not available to meet the approved standards.

When the standards cannot be met with reasonable approaches, the state may approve a variance to either reduce the requirements or allow a long time for compliance. A “compliance schedule” is another tool that allows a more limited time for a facility to meet the standards.

Another implementation tool that could be approved is the intake credit. This could be used when a facility draws water from a specific water body and returns its wastewater to the same location. The idea is that a discharger should not be required to make the wastewater cleaner than the waters it is going back into.

3. The problem chemicals: PCBs, mercury and arsenic

The state proposes keeping the current water-quality standards for polychlorinated biphenyls and mercury, which come from many sources other that discharges from pipes. Mercury, for example, can be released into the air by coal-fired power plants, travel across the ocean and become deposited into local waterways. PCBs, which are widespread through the food web, can come from unregulated stormwater and sediments deposited years ago.

Arsenic, on the other hand, can occur naturally in levels higher than what would be allowed under water-quality standards calculated in the normal way. The state proposes to set the water-quality standard for arsenic at the level allowed for drinking water.

For these problem chemicals, Inslee said dischargers cannot reasonably be held accountable for chemical levels beyond their control.

Cleaning up the rest

Going into this year’s legislative session, Inslee proposed a bill to go after the worst nonpoint pollution in concert with newly proposed cleanup standards. The legislation included a process and funding for conducting chemical investigations and developing chemical action plans, but it failed to pass the Legislature.

Since then, the EPA released its own rule with the proviso that it would consider another state proposal if one is submitted before EPA completes its review process.

Inslee said he is still concerned that the new clean water standards address only limited pollutants, and in many cases not even the right ones.

“The proposed rule only regulates 96 chemicals, yet there are hundreds of toxics that come from everyday products,” he said. “The toxics package we sent to the Legislature would have helped us take a hard run at those to make a much more meaningful difference in making our water safer and healthier.”

Tribal and environmental concerns

Tribal and environmental officials were skeptical of the governor’s latest approach.

“Tribes were pleased to hear today that Gov. Inslee now supports maintaining the current state cancer risk rate to protect us all from toxins in our state’s waters,” said Lorraine Loomis, chairwoman of the Northwest Indian Fisheries Commission.

Tribes remain concerned, however, that Inslee’s proposed standards will not be as protective as the EPA’s.

“We believe that the EPA’s proposed standards are based on the best available science and offer strong protection in a timely manner,” Loomis said. “We expect state standards to be measured against the bar that EPA has set.”

Chris Wilke, executive director of Puget Soundkeeper Alliance, said his concern is that Ecology’s approach won’t result in any meaningful efforts to clean up the state’s waterways.

“Ecology must not return to its earlier failed approach of giving the appearance of protection while riddling the rule with loopholes,” Wilke said in a preopared statement. “Governor Inslee must do everything possible to protect the most vulnerable from the devastating effects of neurotoxins such as mercury and other harmful chemicals.”

Inslee backs off water-quality standards; his next move is unclear

With a key deadline approaching next week, Gov. Jay Inslee decided today that he will not move forward on new water-quality standards at this time.

The governor had hoped that the Legislature would approve his plan to track down and eliminate sources of nonpoint pollution, the kind that often gets into our waterways via stormwater. The Democratic-controlled House approved a revised proposal for chemical action plans (HB 1472), which Inslee said he could support. But, in the end, the Republican-controlled Senate failed to act on the bill.

Inslee

“Without this legislation, we lack the necessary broad approach to protecting our water in a way that advances human, environmental and economic health,” Inslee said in a news release issued today. “The lack of legislative action is disappointing and forces us to reassess our approach.”

Environmental advocates and tribal officials have called for stronger water-quality standards. Such standards, if approved, could require industrial facilities and sewage-treatment plants to extensively upgrade their systems to remove more pollutants from their effluent.

Inslee and his supporters have argued that many of the pollutants of greatest concern don’t come from industrial and municipal discharges. Rather they come from “the small-but-steady release of chemicals in everyday products – brakes on vehicles, flame retardants in furniture, softeners in plastics, and metals in roofing materials,” according to the news release.

That’s why Inslee has pushed for the more comprehensive approach of dealing with the most troublesome chemicals, many of which are not even regulated under the federal Clean Water Act. (Inslee news release, July 9, 2014.)

Water-quality standards actually apply to streams and bodies of water. Comparing results from water samples with numerical standards tells us whether the waters are polluted or clean enough to protect public health. The numerical standards become a starting point for permitting any discharge through pipes, although stormwater pipes are generally not regulated.

I have followed this story now for quite some time. The latest related post two weeks ago in Water Ways covers the overall issue and includes links to previous stories.

It isn’t clear what the next move will be. The news release says the governor has “directed the state Department of Ecology to reconsider its draft clean water rules while he and the agency assess options on how best to assure protection for the health of Washington’s people, fish and economy.”

Meanwhile, the Environmental Protection Agency is developing new standards for Washington state. If the state fails to act or fails to protect public health, as determined by the EPA, then the federal agency could impose its standards on the state. Proposed EPA standards, like state standards, must undergo a rigorous review, including public comments and probably public hearings.

Mark MacIntyre, EPA spokesman, issued a statement today in response to Inslee’s decision:

“We believe it’s important to have human health criteria in place that are protective for everybody in Washington, including high consumers of fish such as members of tribal communities. In terms of who writes the standards, EPA continues to prefer and support Washington’s development of revised water quality standards that we can approve. In the meantime, we are proceeding consistent with our commitment to work on a federal proposal for Washington, but will pause that work to review and act upon a state submittal, should we receive one.”

Washington Department of Ecology, which enforces the Clean Water Act for Washington state, was planning to approve the new standards by next Thursday. But under Inslee’s latest order that will not happen. If the rule is revised, it must undergo a new public review process.

More than 1,600 comments were received on the proposed standards, which are not likely to be approved in their current form. Most of the comments related to the higher cancer risk level chosen by Ecology and the governor. Cancer risk is one factor in calculating the water-quality standards, along with a fish-consumption rate, chemical-toxicity factor and others.

Inslee to decide whether to revise water-pollution standards for the state

Identifying and eliminating sources of water pollution — a process involving “chemical action plans” — is a common-sense idea that never faced much opposition among legislators.

Capitol

But the Legislature’s failure to act on the idea this year cut the legs out from under Gov. Jay Inslee’s anti-pollution plan, which included updated water-quality standards along with authority to study and ban harmful chemicals when alternatives are available.

Although chemical action plans make a lot of sense, the idea of coupling such planning to water-quality standards never quite gelled. Inslee argued that water-quality standards alone would not solve the pollution problem, because the standards address only a limited number of chemicals.

Furthermore, while the water-quality standards define an acceptable level of pollution for a body of water, they are limited in their regulatory control. The standards generally limit discharges only from industrial processes and sewage-treatment plants. In today’s world, stormwater delivers most of the pollution. Legal limits for stormwater discharges are nonexistent, except in rare cases where a toxic-cleanup plan has been established.

Environmentalists and tribal leaders were disappointed with the governor’s proposed water-quality standards. They believed he should be calling for much more stringent standards. While most people liked the idea of an ongoing program of chemical action planning, the governor received limited support for his legislation, House Bill 1472, among environmental and tribal communities.

Inslee

We can’t forget that Inslee had publicly stated that if the Legislature failed to act on his full pollution-cleanup program, he would revisit the water-quality standards — presumably to make them stronger. So the governor kind of boxed himself in, and that’s where we stand today.

Republican legislators acknowledged the value of chemical action plans. Their concerns seemed to center around a distrust of the Department of Ecology, reflecting the views of the chemical industry and others who could find themselves under greater regulatory control.

The House stripped out a provision in the bill that would allow Ecology to ban chemicals without legislative approval. And the key committee in the Senate — the Energy, Environment and Telecommunications Committee — went further by limiting Ecology’s ability to study safer chemicals when a ban is under consideration.

The governor ultimately shifted his support away from the bill that emerged from the committee, as I described in a story I wrote in April for InvestigateWest. The bill never made it to the floor of the Senate, and it ultimately died, along with funding for a wider range of chemical action plans.

“Not only did we not get additional policy help, but we also didn’t get funding to implement the chemical action plans that were already done,” noted Rob Duff, the governor’s environmental policy adviser.

In all, about $3.8 million for toxic cleanup efforts was cancelled along with the legislation.

Plans have been developed to reduce toxic releases of five classes of persistent, bioaccumulative toxics, or PBTs, including polychlorinated biphenyls and mercury. But carrying through on cleanup ideas spelled out in those plans has been slow without targeted funding, and many toxic chemicals of concern, such as pharmaceuticals, are not considered PBTs.

“We aren’t going to throw up our hands,” Rob told me. “Under the PBT rule, we can do PBTs. We will continue to push toward source reduction, although we did not get additional authority from the Legislature.”

Educational programs and voluntary efforts by industry remain in play, pending a further try at legislation next session. Meanwhile, the governor will review the proposed water quality standards, according to Duff.

Rule note

“We will put everything on the table and see what is the best path forward,” he said. “We will have the governor briefed and the necessary discussions over the next two weeks.”

The governor’s proposed water-quality standards have gone through public hearings and must be approved by Aug. 3, or else the process must start over.

Meanwhile, the Environmental Protection Agency is developing its own water-quality rule, which could impose stronger standards upon the state. Water-quality standards, which are a concentration of chemicals in the water, are based on a formula that accounts for how each chemical is assimilated through the food web and into the human body.

One factor involves how much contaminated fish a person is likely to eat. For years, states across the country have used the same fish-consumption rate of 6.5 grams a day, which is less than a quarter of an ounce. This number was long recognized as grossly underestimating the amount of fish that people eat, especially for Northwest residents and even more so for Native Americans who generally consume large quantities of fish.

If adopted, the new water-quality standards would raise the daily fish-consumption rate to 175 grams, or about 6 ounces. If all other factors stayed the same, the new fish consumption rate would raise the safety factor by 27 times. But, as the update moved along, several other factors were amended as well.

Inslee’s proposal was to raise the allowable risk of getting cancer after a lifetime of eating 175 grams of fish each day. The proposal was to increase the risk factor from one case of cancer in a million people to one case among 100,000 people. Inslee included a “no-backsliding” provision, so that the allowable concentration of chemicals would not be increased, no matter what the formula came up with.

Environmental advocates and tribal leaders cried foul over the cancer risk, and Dennis McLerran, regional administrator for the EPA, said he did not want the cancer risk to be increased for any state under his authority.

I covered these issues in a two-part series for the Kitsap Sun:

The EPA expects to have its proposed standards for Washington state ready this fall, possibly November. EPA officials will review the state’s proposal when it is final, but that won’t stop the agency from completing its work, according to a written statement from the EPA regional office.

“We continue to work closely with Governor Inslee’s office and the Washington Department of Ecology to see water quality standards adopted and implemented that protect all residents of the state, as well as tribal members, who regularly and often consume fish as part of a healthy diet,” according to the statement.

Industry officials and sewage-treatment-plant operators have argued that the technology does not exist to meet some of the water-quality standards that would result from a cancer-risk rate of one in a million if the other factors stayed the same. PCBs is one example of a pollutant difficult to control. Besides, they argue, stormwater — not their facilities — is the primary source of PCBs in most cases. That’s why eliminating the original sources of PCBs is so important.

McLerran, who seems to support the more stringent standards, has mentioned that facilities can apply for variances, relaxed compliance schedules or other “implementation tools,” to get around strict numerical standards impossible to meet with today’s technology.

Environmental groups are calling on the governor to tighten up the proposed water-quality standards, rather than let them go into effect, given the Legislature’s failure to approve his overall plan.

“Gov. Inslee must do everything in his power to protect the most vulnerable — babies and children — from the devastating health effects of potent neurotoxins like mercury and carcinogens like PCBs,” stated Chris Wilke, executive director for Puget Soundkeeper.

“Ecology’s draft rule provides only the appearance of new protection while manipulating the math, leaving the actual water quality standards largely unchanged,” he said. “This is simply unacceptable. Without the veil of a new source control package from the Legislature, the Governor’s plan clearly has no clothes.”

Others maintain that the governor has been on the right track all along, and they warn that the state could face lawsuits if it imposes standards that are too strict.

Bruce Hope, a retired toxicologist, wrote a guest editorial for the Seattle Times that included these statements:

“Taking an achievable approach like the one in the Department of Ecology’s draft rule would reduce the risk that municipal wastewater treatment plants or industrial facilities are subject to standards that couldn’t be met…

“Developing the right approach to water-quality protection for Washington will thus require various interests continuing to work together to find common ground.

“Washington’s rules for protecting our waters need to be established by the people elected by Washington voters. The EPA’s Region 10 office should simply not be threatening to circumvent or supersede the standard-setting authority granted to the state under the Clean Water Act.”

Water cleanup program will forego grants, reorganize for efficiency

After much success in cleaning up streams in Kitsap County, pollution investigators for the Kitsap Public Health District plan to turn their backs on most state and federal grants and reorganize their approach to local waterways.

I’m talking about the folks who literally wrote the book on pollution identification and correction, or PIC, a strategic approach to tracking down bacterial contamination and eliminating the sources. A 2012 “Protocol Manual” (PDF 10.6 mb) and a 2014 “guidance document” (PDF 4.3 mb) — both developed by Kitsap’s pollution investigators — are now being used by local health departments throughout the state.

Category 1 = meets water-quality standard; Cat. 2 =
Category 1 = meets water-quality standard;
Cat. 2 = reasons for concern; Cat. 3 = lacking data;
Cat. 4A = TMDL plan; Cat. 4B = local plan;
Cat. 5 = “impaired.”

That’s why I was surprised to hear that the health district plans to change course for its pollution-cleanup program this fall — especially the part about reducing reliance on state and federal grants. For many Puget Sound jurisdictions, these grants provide the major sources of funding, if not the only funding for their PIC projects.

Kitsap County is fortunate to have a stormwater fee collected from rural property owners. For single-family homeowners, the fee will be $82 this year. The money goes into the Clean Water Kitsap program, which funds a multitude of clean-water projects — including street-sweeping, improving stormwater systems and restoring natural drainage.

The fee also supports the health district’s ongoing monitoring program, a monthly sampling of more than 50 Kitsap County streams, along with lakes and marine waters. The program has successfully reported improvements in various streams while providing early-warning signs for water-quality problems. The program was started in 1996.

None of that will change, according to Stuart Whitford, supervisor for the health district’s PIC Program. While state and federal grants have been helpful in tracking down pollution problems, most of the major problems have been identified, he said.

“We know what we have, and the patient has been stabilized,” he noted.

The problem with grants is that they require specific performance measures, which must be carefully documented and reported quarterly and in final reports.

“The administrative burden is heavy, and the state grants don’t fully pay for the overhead,” Stuart said. “Looking out into the future, we think state and federal grants will be reduced. We are already seeing that in the Legislature. So we are going to wean ourselves off the grants.”

Future efforts need to focus on identifying failing septic systems and sources of animal waste before they become a serious problem, Stuart told me. The process of doing that is firmly established in local plans. Work will continue, however, on nagging pollution problems that have not been resolved in some streams. And he’s not ruling out applying for grants for specific projects, if the need returns.

To increase efficiency in the ongoing program, health district staff will be reorganized so that each investigator will focus on one or more of the 10 watersheds in the county. In the process, the staff has been cut by one person. The assignments are being made now and will be fully implemented in the fall.

Kitsap's watersheds: 2) Burley-Minter; 3) Colvos Passage/Yukon Harbor; 4) Coulter/Rock creeks; 5) Dyes Inlet; 6) Foulweather Bluff/Appletree Cove; 7) Liberty/Miller bays; 8) Port Orchard/Burke Bay; 9) Sinclair Inlet; 10) Tahuya/Union rivers; 11) Upper Hood Canal.
Kitsap’s watersheds: 2) Burley-Minter; 3) Colvos Passage/Yukon Harbor; 4) Coulter/Rock creeks; 5) Dyes Inlet; 6) Foulweather Bluff/Appletree Cove; 7) Liberty/Miller bays; 8) Port Orchard/Burke Bay; 9) Sinclair Inlet; 10) Tahuya/Union rivers; 11) Upper Hood Canal.

“The stream monitoring will remain the same,” Stuart said. “But each person will be able to do more intensive monitoring in their home watershed.”

Having one investigator responsible for each watershed will allow that person to become even more intimately acquainted with the landscape and the water-quality issues unique to that area. Because of the extensive problems in Sinclair Inlet, two people will be assigned to that drainage area, which includes a good portion of South Kitsap and West Bremerton.

Dave Garland, regional water-quality supervisor for the Department of Ecology, said he, too, was surprised that the Kitsap Public Health District wishes to avoid grants, but he is confident that Stuart Whitford knows what he is doing.

“They are definitely leaders in the state and have been very successful in their approach,” he said. “We wish more health districts and surface water departments would be more like Kitsap. They are improving as they go.”

Garland said Kitsap County officials have done more than anyone to remove streams and waterways from the “impaired waters” list that Ecology compiles. The list — also known as 303(d) under the federal Clean Water Act — is part of Ecology’s “Water Quality Assessment,” now being finalized for submission to the federal Environmental Protection Agency.

In 2008, Kitsap County had 69 stream segments listed as “impaired.” As a result of work over six years, now only 7 are proposed for the upcoming list. Many streams were removed when they came under state cleanup plans for Dyes and Sinclair inlets, between Port Orchard and Silverdale, or in Liberty Bay near Poulsbo. Those state plans identify cleanup efforts to reduce pollution loading and bring the waters into conformance with state water-quality standards. They are called TMDLs, short for total maximum daily loads.

Because the Kitsap County PIC Program has been so successful, Ecology has allowed the local program to substitute for TMDL studies for many streams where stormwater outfalls are not an issue. Under the Clean Water Act, the local program comes under Category 4B (for local planning), as opposed to 4A (the state’s TMDL approach).

“No one has done a more thorough job,” Dave said of Kitsap’s effort. “It is very impressive to see that they have gone to TMDLs or to 4B. That does not mean the waters are clean, but it means they are under a plan.”

Of the remaining seven “impaired” water bodies, some should be removed because of Kitsap’s cleanup plans, Stuart said. They include Anderson Creek and Boyce Creek, which flow into Hood Canal, and Murden Creek on Bainbridge Island, which is undergoing a special study. Phinney Creek in Dyes Inlet is already part of a TMDL, and an area in southern Hood Canal should not be on the list because it meets water-quality standards, he said. Stuart hopes to get those changes made before the list is submitted to EPA this summer.

Currently, nothing is being done with regard to Eagle Harbor or Ravine Creek, two “impaired” water bodies on Bainbridge Island. The health district’s program does not extend to cities, although Bainbridge could contract with the health district for monitoring and cleanup.

Eagle Harbor could become subject to a TMDL study by the Department of Ecology, but it is not currently on the state’s priority list. As a result, work is not likely to begin for at least two years.

EPA clarifies federal jurisdiction over streams and wetlands of the U.S.

The Environmental Protection Agency has finally completed a new rule that defines which waterways across the country fall under federal jurisdiction for clean-water permits.

The new Clean Water Rule is designed to protect important tributaries. Kitsap Sun photo
The new Clean Water Rule is designed to protect important tributaries. // Kitsap Sun photo

Enforcement of the federal Clean Water Act has been stuck in a state of confusion since 2006, when the U.S. Supreme Court ruled that the Army Corps of Engineers was overreaching by requiring permits for all sorts of waterways beyond the agency’s jurisdiction. For background, check out my Water Ways post from March 25, 2014, in which I describe the court’s interpretation of “waters of the U.S.” — the key phrase in the law.

The EPA requisitioned a scientific report about hydraulic connectivity, concluding that even small streams can affect downstream waters. The final language in the rule, designed to reduce judgment calls by federal regulators, says tributaries would come under federal jurisdiction only if capable of delivering significant pollution downstream. Such tributaries would need to have flowing water or related features — such as a streambed, bank or high-water mark.

The rule has worried farmers, who want to make sure the federal government does not try to regulate ditches designed for irrigation and drainage. Language in the final rule says ditches will not be regulated unless they are shown to be a remnant of a natural stream that has been diverted or altered.

Jo-Ellen Darcy, assistant secretary for the Army, said the rule represents a “new era” for the Clean Water Act. As she stated in a news release:

“This rule responds to the public’s demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide.”

EPA Administrator Gina McCarthy said the rule is grounded in science and law. For downstream waters to be clean, upstream waters also must be clean, she said.

McCarthy said the language was revised significantly since the first proposal, taking into account more than a million public comments and discussions in 400 meetings across the country. As she told reporters in a telephone conference call:

“I think you will see that we have made substantial changes that basically made this rule clearer, crisper and did the job we were supposed to do. And I’m very proud of the work we have done here.”

McCarthy also told the reporters that climate change increases the importance of protecting water resources:

“Impacts from climate change — like more intense droughts, storms, fires and floods, not to mention sea-level rise — affect our water supplies. But healthy streams and wetlands can help protect communities by trapping flood waters, retaining moisture during drought, recharging groundwater supplies, filtering pollution and providing habitat for fish and wildlife.”

The new rule was applauded by many environmental groups, including the Sierra Club. Michael Brune, executive director, issued a statement:

“No longer will the Supreme Court’s confusing decisions on the issue allow dirty fossil fuel companies to threaten people’s health by dumping toxins into our lakes, rivers, and streams.”

Still, plenty of people contend that the EPA and Army Corps have contrived this new rule to continue their over-reach into streams that should be beyond federal jurisdiction. House Speaker John Boehner, R- Ohio, issued this statement in response to the EPA’s release of the new rule, sometimes called “WOTUS” for “waters of the U.S.”

“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs. House members of both parties have joined more than 30 governors and government leaders to reject EPA’s disastrous WOTUS rule. These leaders know firsthand that the rule is being shoved down the throats of hardworking people with no input and places landowners, small businesses, farmers and manufacturers on the road to a regulatory and economic hell.”

The House has already passed a bill, HB 1732, that would put the brakes on implementation of the new rule and send the EPA back to the drawing board for new language. As you could expect, the vote was mostly along party lines. If the Senate approves the bill, it is likely to be vetoed by the president.

The new rule is scheduled to go into effect 60 days from its publication in the Federal Register. For more details, visit the EPA’s website “Clean Water Rule.”