Tag Archives: Washington Department of Ecology

Drought continues with fear of fire throughout Western Washington

Severe drought is settling in across most of Western Washington — including Kitsap County — where dry conditions raise the risks of wildfire, and low streamflows could impair salmon spawning this fall.

Western Washington is one of the few places in the country with “severe” drought.
Map: U.S. Drought Monitor, Richard Tinker, U.S. agencies.

Scattered showers and drizzle the past few days have done little to reverse a drying trend as we go into what is normally the driest period of the year, from now through August. As of today, the fire danger is moderate, but warmer weather could increase the risk substantially within a day or two.

The topsy-turvy weather that I observed across the Kitsap Peninsula last quarter (Water Ways, April 2) continued through June. Normally, the southwest corner of the peninsula near Holly receives twice the precipitation as the north end near Hansville. But that didn’t happen last month, when the monthly rainfall total was 0.61 inches in Holly and 0.83 inches in Hansville. Silverdale, about halfway between, received 1.11 inches in June.

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Petition seeks upgrades to Puget Sound sewage treatment plants

UPDATE, Feb. 12
Northwest Environmental Advocates has taken its case to court in an effort to obtain a new Washington state sewage-treatment standard under AKART — “All Known, Available and Reasonable Treatment.” For information about the case, refer to the NWEA news release and the lawsuit filed in Thurston County Superior Court.
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An environmental group, Northwest Environmental Advocates, is calling on the Washington Department of Ecology and Gov. Jay Inslee to invoke a 1945 law in hopes of forcing cities and counties to improve their sewage-treatment plants.

Large ribbons of the plankton Noctiluca can be seen in this photo taken at Poverty Bay near Federal Way on June 28 last year. Excess nitrogen can stimulate plankton growth, leading to low-oxygen conditions.
Photo: Eyes Over Puget Sound, Department of Ecology

In a petition to Ecology, the group says the state agency should require cities and counties to upgrade their plants to “tertiary treatment” before the wastewater gets discharged into Puget Sound. Such advanced treatment would remove excess nitrogen along with some toxic chemicals that create problems for sea life, according to Nina Bell, executive director of NWEA, based in Portland.

Most sewage-treatment plants in the region rely on “secondary treatment,” which removes most solids but does little to reduce nitrogen or toxic chemicals. Secondary treatment is an outdated process according to BOS and innovation with Ecology needs to lead the way to a more advanced treatment technology.

“It’s a travesty that cities around Puget Sound continue to use 100-year-old sewage-treatment technology when cities across the nation have demonstrated that solutions are available and practical,” Nina said.

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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.

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Orange plankton bloom is not a good sign for ecological health

If you notice an orange tint to the waters of Central Puget Sound, it’s not your imagination. It is a dense plankton bloom dominated by the dinoflagellate Noctiluca scintillans.

Noctiluca scintillans bloom comes ashore at Saltwater State Park in Des Moines on Monday of this week.
Video: Washington Department of Ecology

Noctiluca is often seen in some numbers at this time of year, but it may be a bit more intense this time around, according to Christopher Krembs, an oceanographer with the Washington Department of Ecology. Christopher tells me that the orange color may stick around awhile.

The orange-colored species does not produce any toxins found to be harmful to humans, but it is not exactly a friendly organism either. It often shows up in marine waters that are out of balance with nutrients or impaired in some other way. It can gobble up other plankton that feed tiny fish and other creatures, but it does not seem to provide a food supply that interests very many species — probably because of its ammonia content. Consequently, Noctiluca is often referred to as a “dead end” in the food web.

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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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Struggle for clean water criteria coming to a close

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 health.

chinook

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 proposed standards.

“We believe our new rule is strong, yet reasonable,” said Maia Bellon, director of the Washington Department of Ecology, in a news 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, experts say.

“Available data indicate that most state waters would not meet the EPA proposed criteria and that most (federally permitted) wastewater treatment plants will have to apply membrane filtration treatment and additional treatment technologies to address PCBs,” according to a letter from five industrial organizations and a dozen major businesses (PDF 3 mb).

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.

sailing

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 proposed criterion.”

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 approaches.

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.

If you want to dig a little deeper, view the full list of comments about Ecology’s proposal, many of which refer to the alternate EPA proposal as well. Ecology posts its information on its “Water Quality Rulemaking” page. EPA posts its information on the “Washington Water Quality Standards” page.

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Children join forces to demand action
on climate change

I find it fascinating that children are making a strong legal argument that governments must take swift action to reduce climate change.

A series of lawsuits across the country are founded on the idea that many adults will be gone in 40 or 50 years when climate extremes become the new norm. It is the young people of today who will suffer the consequences of ongoing government inaction.

In a case filed by a group of children in King County Superior Court, Judge Hollis Hill took the Washington Department of Ecology and Gov. Jay Inslee to task for delaying action on new clean air regulations to help curb greenhouse gas emissions:

“Petitioners assert, the department does not dispute, and this court finds that current scientific evidence establishes that rapidly increasing global warming causes an unprecedented risk to the Earth, including land, sea, the atmosphere and all living plants and animals…

“In fact, as petitioners assert and this court finds, their very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emission of GHGs (greenhouse gases) before doing so becomes too costly and then too late.

“The scientific evidence is clear that the current rates of reduction mandated by Washington law cannot achieve the GHG reductions necessary to protect our environment and to ensure the survival of an environment in which petitioners can grow to adulthood safely.”

One can download Hill’s full opinion (PDF 2.6 mb) from Our Children’s Trust website. Also, reporter Jeannie Yandel of radio station KUOW interviewed the attorney and some of the children involved in the case.

Attorney Andrea Rogers (far right) poses with young plaintiffs outside a King County courtroom. Their legal victory requires state government to address climate change by the end of 2016. Photo: Our Children’s Trust
Attorney Andrea Rogers (far right) poses with young plaintiffs outside a King County courtroom. Their legal victory requires state government to address climate change by the end of 2016. // Photo: Our Children’s Trust

It is ironic that Gov. Inslee finds himself under attack for failure to act against greenhouse gas emissions, given that he is one of the nation’s leading advocates for action on climate change. Inslee literally wrote the book on this issue while serving in Congress: “Apollo’s Fire: Igniting America’s Clean Energy Economy.”

Unable to get the Legislature to act on his specific program, the governor is now on a course to impose new regulations to force a reduction in greenhouse gases. Initially, the new standards would apply to large industrial sources. The governor says his authority stems from a 2008 law passed by the Legislature requiring a reduction to 1990 emission levels by 2020. We can expect the rule to be challenged by business interests.

Originally, the rule was to be completed this summer, but the proposal was withdrawn in February in light of an overwhelming number of comments and new ideas that needed to be addressed. The rule is scheduled to be re-released later this month and adopted by the end of the year.

Judge Hill’s latest ruling from the bench on April 29 requires Ecology to adopt the rule by the end of the year. That fits within Ecology’s current schedule, said Camille St. Onge, spokeswoman for Ecology. Whether the agency might appeal the ruling to preserve its options won’t be decided until after the judge’s written findings are issued, she said.

“We agree with Judge Hill,” St. Onge told me in an email. “Climate change is a global issue, and science is telling us that what was projected years ago is happening today, and we need to act now to protect our environment and economy for future generations. We’re working vigorously on Washington’s first-ever rule to cap and reduce carbon pollution and help slow climate change.”

Gov. Inslee said in a news release that he has no dispute with Judge Hill’s findings, which actually support his approach to combatting climate change:

“This case is a call to act on climate, and that call is one that has been a priority for me since taking office. Our state is helping lead the way on climate action in our country…

“In a way it is gratifying that the court has also affirmed our authority to act, contrary to the assertion of those who continue to reject action on climate change and ocean acidification. Hundreds of people have participated in the creation of our state's Clean Air Rule and the draft will be out in just a few weeks.”

For details about the proposed Clean Air Rule, visit Ecology’s website.

Meanwhile, Washington state is not the only state where youth have filed lawsuits to assert their rights to a healthy future. Cases also are pending in Oregon, Massachusetts, Colorado and North Carolina, according to Our Children’s Trust, which provides details about the state lawsuits on its website.

At the same time, another case is underway in U.S. District Court in Oregon, where Magistrate Judge Thomas Coffin ruled that the young plaintiffs have standing and legitimate claims to be adjudicated. He allowed the case to move forward with additional evidence to be submitted. Read his April 8 ruling (PDF 3.2 mb) on the website of Our Children’s Trust.

The video below features reporter Bill Moyers discussing the legal issues in these cases, which include claims related to the Public Trust Doctrine, an ancient principle that asserts the public’s right to use and enjoy certain natural resources that cannot be ceded to private property owners.

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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.

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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.”

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