Tag Archives: Clean Water Act

Reducing toxics in fish involves politics, maybe more than science

When it comes to eliminating toxic pollution from our waterways and the foods we eat, almost everyone agrees that the best idea is to track down the chemicals, find out how they are getting into the environment and then make decisions about how to handle the situation.

Fish

It’s all common sense until politics comes into play.

If the chemicals are really hazardous and if substitutes for the chemicals are available, then a ban on their use may be the right decision. That has happened with pesticides, such as DDT, and solvents, such as PCBs.

In the case of PCBs, banning these chemicals is not enough, because they were used so widely and continue to hang around, both in old products still in use and in the open environment. Waiting for them to break down and disappear is not a practical approach.

The solution involves conducting chemical detective work to find out how the chemicals are traveling through the environment and ultimately getting into people and animals. Some toxic sinks for PCBs, such as old electrical equipment, can be identified and destroyed before the chemicals begin leaking out. Others, such as contaminated sediments at the bottom of Puget Sound, pose a more difficult problem.

Even when chemicals are banned, the ban is enforced with limits on concentration, below which the chemical can still be used. That’s the case with very low levels of PCBs found in some types of inks and dyes. So when paper is recycled, the PCBs may escape into the environment. We know that PCBs, which mimic hormones and can wreak havoc on the body, can build up in fish, killer whales and humans over time. The question for regulators becomes which sources are the most important to eliminate.

In Washington state, chemical detectives tackle the toxic compounds one at a time, compiling their findings into a chemical action plan. The chemical action plan for PCBs was completed earlier this year. Others have been done for mercury, lead, toxic flame retardants and polyaromatic hydrocarbons.

I bring all this up because Gov. Jay Inslee and Department of Ecology would like to increase the pace of studying potentially toxic chemicals, including finding out what harm they are doing, how they get into the food web and whether alternative chemicals are available.

New chemicals are finding their way into household products, cosmetics and other materials all the time, and studies continue to raise concerns about old chemicals that we have lived with for a long time. Some chemicals are the subject of vigorous and ongoing scientific debate.

The Washington Legislature has been asked by the governor to fund Ecology for up to two chemical action plans per year. The other question before lawmakers is how much authority to give Ecology for banning chemicals and considering whether alternatives are available. These are issues I covered in a story last week for InvestigateWest, a nonprofit journalism group. The story was carried by the Kitsap Sun on Sunday.

This issue of chemical action plans has gotten tangled up with the need for Washington state to update its water-quality standards, required under the federal Clean Water Act. These standards, now under review by Ecology, determine which water bodies in the state are considered clean of toxic substances and which should be labeled “impaired.”

The standards also are used to develop discharge permits for industrial facilities, sewage-treatment plants and occasionally stormwater outfalls. The general implication is that if a discharge from a pipe meets the state’s water quality standards, then it won’t pollute the receiving waters.

Years ago, when most water pollution came from industrial and sewage discharges, the program was successful in making the waters substantially cleaner. More than 100 chemicals remain on the Environmental Protection Agency’s priority pollutants list. All these chemicals are still tested by dischargers, although the vast majority are not detectible in fish caught in Puget Sound. Meanwhile, other chemicals of growing concern are not on the list — so they are not subject to testing, let alone regulatory control.

We now know from various studies that most of the toxic pollution entering Puget Sound comes from stormwater, not discharges from pipes, while other toxics are still sitting on the bottom of Puget Sound. It will take a lot of money and a lot of time to address these sources. The effort is moving in that direction, but funding continues to be debated, including the current session of the Legislature.

Efforts to update the antiquated rules in the Clean Water Act to provide for a more rationale approach have been started and stopped many times. I suspect that environmental advocates fear that with the anti-government mood in Congress the result could be even less-effective controls on pollution — so we live with regulations structured more than 30 years ago.

Gov. Inslee tried to shift the focus of toxic cleanup from the federal approach to the state’s new approach with chemical action plans. While newly proposed water-quality standards are more stringent for 70 percent of the chemicals (PDF 392 kb) on EPA’s list, they would have been 10 times more stringent if his proposal had not changed a key factor in the equation that determines the standards. Going up against environmental advocates, Inslee proposed increasing the cancer-risk rate in the equation from one in a million to one in 100,000.

In other words, if a body of water barely meets the pollution standard for a given chemical, 10 in a million people — rather than 1 in a million — could develop cancer from eating a maximum assumed level of fish from the water. This is the increased lifetime risk from that one chemical.

Everyone agrees that we should do what we can to reduce our risk of getting cancer, and cutting down toxics in fish is an important step. In a two-part series I wrote for the Kitsap Sun in March, I began by describing the risks and benefits of eating fish from Puget Sound and other areas, then I proceeded to talk about the alternative approaches to cleaning up the water.

Increasing the excess cancer risk from one in a million to 10 in a million is worth discussing. That change is not insignificant. But getting to some kind of bottom line is not easy. Keep in mind that the overall risk of getting cancer from all causes is about 433,000 in a million (43.3 percent) for men and 228,000 in a million (22.8 percent) for women, according to the American Cancer Society.

Environmental and tribal officials would like the risk of eating fish to be as low as possible. Many are angered by 15 years of delay by state officials in updating the standards, which were based on poor estimates of how much fish people eat. The newly proposed change assumes a daily consumption of 175 grams (about 6 ounces) of fish, compared to the previous 6.5 grams (about a quarter of an ounce.) Tribal officials say many people in their communities eat more than 175 grams.

On the other hand, businesses operating industrial plants and local governments running sewage-treatment plants are worried about what it will take to comply with new standards if the cancer risk remains at 1 in a million. Increased costs for their treatment systems, ultimately passed along to their customers, are a primary concern.

So far, the regional office of the EPA has made it clear that it does not like the idea of increasing the cancer-risk rate from the level currently used by Washington state and most other states. See the agency’s comments dated March 23 (PDF 6.4 mb). The EPA seems to be taking the approach that if the technology does not exist or is too expensive to reduce chemical concentrations to levels demanded by the new standards, then dischargers should be given a variance or allowed additional time to come into compliance.

It isn’t clear how these issues will be resolved, and there are many technical and legal aspects to be considered. Washington state is on a course to complete its update to the standards by August, when the EPA could release its own plan for bringing the state into compliance.

EPA asserts protections under Clean Water Act

Connections among streams, wetlands, rivers and lakes are at the heart of a new rule proposed today to clarify the intent of the federal Clean Water Act and to spell out the authority of federal agencies.

Specifically, the rule proposed jointly by the U.S Environmental Protection Agency and Army Corps of Engineers calls for protecting most natural water features under the Clean Water Act. The rule embodies the notion that small tributaries and wetlands are likely connected to larger tributaries, rivers, wetlands and natural channels, even though they may not always appear connected.

The proposed rule is designed to reconcile scientific understanding of hydraulic connections with two U.S. Supreme Court rulings, which hold that federal jurisdiction applies only to permanent water features and their connecting waters. In the 2006 decision “Raponos v. United States” (PDF 535 kb), the court was highly critical of the Army Corps of Engineers for its effort to squeeze a wide variety of waterways under the definition of “waters of the United States”:

“In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow during storm events,’ drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘land is waters’ approach to federal jurisdiction….

“In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers [and] lakes.’ See ‘Webster’s Second.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

The Supreme Court ruling has caused confusion, especially in situations where hydraulic connections were not obvious and could be questioned by property owners who wished to avoid federal regulators.

A scientific report was requisitioned by the EPA to fill the gap created by the court. Some findings from the report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (PDF 11.3 mb):

“All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported…

“Wetlands and open-waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers … are physically, chemically, and biologically connected with rivers via the export of channel-forming sediment and woody debris, temporary storage of local groundwater that supports base flow in rivers, and transport of stored organic matter.”

In the Puget Sound region, the connections among waterways are fairly obvious. In more arid states, however, the connections may occur only during rainy periods, if then.

In a press release, EPA Administrator Gina McCarthy said the proposed rule fits the Supreme Court’s narrower reading of the Clean Water Act while maintaining the historical coverage of the federal agencies:

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities. Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”


Jo-Ellen Darcy, assistant secretary of the Army for civil works, added:

“Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”

Specifically, the proposed rule clarifies that under the Clean Water Act:

  • Most seasonal and rain dependent streams are protected.

  • Wetlands near rivers and streams are protected.

  • Other types of waters with more uncertain connections to downstream water will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters.
  • Agricultural exclusions are retained, and agencies have identified 53 conservation practices that will be considered exempt from Corps permits.

EPA’s webpage: Waters of the United States

Environmental groups were thrilled that the Obama administration stepped up to protect waterways where state laws are not as strong.

Stated Trip Van Noppen, president of Earthjustice:

“The EPA’s new Clean Water Act rule finally restores protections so that we can begin the hard work of cleaning up our waters for our children to swim in, fish in, and drink from.

“No doubt, polluters will rail and lobby against this rule and any other clean water safeguards that keep them from dumping their toxic waste in our communities and waters, or that hold them accountable for their pollution.”

“We cannot back down on protecting the waters that eventually flow through our faucets. Our children, our health, and our very drinking water are at stake. We urge the Obama administration to resist the polluter lobbies and quickly move forward in protecting our waterways and our families.”

Not everyone was thrilled with the new rule. Colorado Gov. John Hickenlooper and Nevada Gov. Brian Sandoval of the Western Governors Association wrote a letter to McCarthy and Darcy complaining that state officials have been left out of the conversation, despite state authority to regulate water use.

In a March 10 letter, Phillip Ward of the Western States Water Council urged agency officials to delay publication of the proposed rule until EPA’s connectivity report undergoes peer review:

“EPA has indicated that its draft connectivity report will serve to inform the final rule on CWA jurisdiction. However, the draft rule’s submission to the Office of Management and Budget (OMB) before the finalization of the connectivity report raises concerns that the final report will have little or no influence on the final rule….

“Additionally, many western states have submitted individual comments for the EPA’s Science Advisory Board (SAB) to consider in its review of the draft connectivity report. EPA should carefully evaluate the SAB’s consideration of these comments and any subsequent recommendations from the final report.”

Kevin Kelly, president of the National Association of Homebuilders said the promise of clarification has brought a greater regulatory burden:

“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt. Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ — even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark.”

Comments from others in favor of the proposed rule:
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Embracing a new approach to nonpoint pollution?

When it comes to cleaning up bacterial pollution in Puget Sound, we seem to have a clash — or at least some redundancy — in the methods we use.

Sailors take advantage of the nice weather last week on Liberty Bay. Kitsap Sun photo by Meegan Reid.
Sailors take advantage of nice weather last week on Liberty Bay.
Kitsap Sun photo by Meegan M. Reid.

In Kitsap County, water-quality officials are saying studies conducted by the Washington Department of Ecology, which allocated total maximum daily loads (TMDLs), have not been much help in attacking the local pollution problem.

That’s because the approach developed by Kitsap County, called the Pollution Identification and Correction (PIC) Program, has been highly successful in tracking down and cleaning up bacterial pollution.

I wrote a story about this issue as it relates to Liberty Bay in yesterday’s Kitsap Sun.

I also talked a little about the two water-quality standards used for streams. It’s somewhat odd how Liberty Bay must conform to a stricter standard than nearby Dyes Inlet, since both are in urbanizing areas. By the way, there is only one standard for marine waters, and Liberty Bay is generally clean under that standard.

Other information on the Liberty Bay TMDL study can be found on Ecology’s website and in a news release.

With regard to cleanup methods, now that PIC has been adopted and funded for the Puget Sound region, one might argue that it is time to back away from the more cumbersome TMDL approach, which spends a great deal of money to allocate pollution loads with no guarantees that any cleanup will get done. For recent funding details, review the Washington Department of Health’s Page on “EPA Grant: Pathogens, Prevention, Reduction and Control” and the specific funding for PIC projects.

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Water quality is defined by the ‘standards’ we use

Washington Department of Ecology is in the early stages of revising water quality standards for our state, beginning with a series of meetings to find out what people think. See my story in yesterday’s Kitsap Sun for an overview, and check Ecology’s news release for the meeting schedule and process for proposing changes.

It’s hard to tell how aggressive Ecology will be about changing these standards. Given state budget limitations, the agency may opt to do little, yet Ecology officials say they are willing to address problems that people see in the existing standards or in their implementation.

What we’re talking about here is changing the definition what makes good, clean, safe water. Changing the standards could bring increased attention to individual streams, lakes and bays and possibly even trigger a new approach for all streams.

Water quality standards are the driver for creating the state’s list of impaired water bodies (the 303d list). They are used to write discharge permits for industrial facilities, sewage-treatment plants and stormwater outfalls. And in cleanup plans for polluted waterways, they provide guidance for allocating pollution limits among point and nonpoint sources.

Priorities for changes that could be made are expected to be announced next spring after all the comments are compiled and reviewed, including suggestions from state and local officials, according to Susan Braley of Ecology’s Water Quality Program. Nationwide standards, which are under continual review by the Environmental Protection Agency, sometimes require the state to make changes.

Some of the ideas that have been kicking about, in no particular order:

  • New standards for total petroleum hydrocarbons
  • New standards for certain kinds of pesticides harmful to salmon
  • New standards for copper, which are known to affect salmon
  • New standards for toxic chemicals known to affect human health
  • A change in the bacterial standard from fecal coliform to e. coli
  • Allowance for alternative indicators for the presence of human waste
  • Further refinements of temperature standards, which were updated in 2006 to protect bull trout
  • New standards for pH as related to ocean acidification
  • New rates for fish-consumption by people, which could change numerical standards for a range of toxics

If anyone tells me about other ideas, I will add them to the list.

For more information, check out EPA’s informational website about Water Quality Standards and Surface Waters. There’s also an instructive online course focusing on theer Clean Water Act by the River Network.

To read the standards themselves, go to the Washington Administrative Code, Chapter 173-201A.

New policies aim to curb pesticide use and abuse

I’m willing to stand corrected, but I cannot recall a time when there has been so much activity related to the use and abuse of pesticides around water.

In a story written for Monday’s Kitsap Sun, I reported about the permitting activity to comply with the Clean Water Act at both the state and federal levels. I did not, however, get into some significant and surprising activities related to the Endangered Species Act, which I will discuss here in a moment.

I think it’s becoming fairly well recognized that chemicals successful at killing target plants and animals may have unwanted and uncertain effects on plants and animals that we would like to protect. Unfortunately, state and federal regulations have not always kept pace with scientific findings.
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Regional EPA chief discusses top issues

Dennis McLerran, the new regional administrator for the Environmental Protection Agency, held his first news conference today, saying he wanted to touch base with reporters during Earth Week.

Dennis McLerran, EPA regional administrator
EPA photo

This year is not only the 40th anniversary of Earth Day, he noted, but also the 40th anniversary of the EPA. McLerran said he was a freshman at the University of Washington in 1970, the year of the first Earth Day. (That’s the year that I graduated from Mercer Island High School. Like McLerran, I have been involved in environmental issues for much of the last 40 years.)

Coming to the EPA from the Puget Sound Clean Air Agency, McLerran said he has had to expand his horizons to take in all environmental issues. “Wall-to-wall briefings” has been “kind of like drinking from a fire hose,” he said today.

The regional administrator said he was taking many clues from his boss, EPA Administrator Lisa Jackson — including focusing on her top seven priorities:

  • Taking Action on Climate Change
  • Improving Air Quality
  • Assuring the Safety of Chemicals
  • Cleaning Up Our Communities
  • Protecting America’s Waters
  • Expanding the Conversation on Environmentalism and Working for Environmental Justice
  • Building Strong State and Tribal Partnerships

Additional notes from McLerran’s comments and responses to questions:

Political battles are swirling over Clean Water Act

Changes are in the wind for the powerful Clean Water Act, as officials with the Environmental Protection Agency prepare to step up enforcement to protect the nation’s water supplies.

Regulatory and even legislative changes are in the works, and the law could become a tool in dealing with greenhouse gases related to climate change.

Coming Together

The latest signal that something is afoot is the launch of a new blog this week by the EPA. It is called “Coming Together for Clean Water.”

The EPA is “seeking public input on how the agency can better protect and improve the health of our waters…” according to a news release. “The feedback received on the online forum will help shape the discussion at EPA’s upcoming conference in April, ‘Coming Together for Clean Water,’ where we will engage approximately 100 executive and local level water leads on the agency’s clean water agenda.”

Three topics are mentioned: “The Watershed Approach,” “Managing Pollutants from Nutrients,” and “Stormwater Pollution.”

It is interesting to see how people in various parts of the country are responding to these topics and how local issues play into the national overview. Some folks seem fairly alarmed and are demanding that the EPA take firm actions. Others have responded by spelling out technical solutions or offering case studies about how the EPA has failed in the past.

Enforcement plan

In October, the EPA released what is now called the Clean Water Act Action Plan. It calls for greater and more consistent enforcement nationwide of the clean water law under three strategies:
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