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Science, Law & the Environment Emerging Topics in Environmental Law

Ecology to Adjust Water Quality Standards to Consider Tribal Fish Consumption?

Posted in Clean Water Act, Emerging Policy, Fish Consumption, Water Quality

I just ran across this article in the Seattle Times by Cassandra Brooks. What is interesting is that it suggests Ecology is going to revise the standard fish consumption numbers used in setting water quality criteria under its delegated authority pursuant to the Clean Water Act. I’ve checked Ecology’s list of current rulemaking, and all I’ve come up with is a notice to make some typographical corrections and another notice regarding commencing triennial review of Washington’s water quality standards. The latter isn’t rulemaking, and is instead is an information-gathering exercise with stakeholders and interested parties. I am assuming that Ms. Brooks’ article is related to the triennial review.

Regardless, the changes that Ms. Brooks outlines have the potential to dramatically impact how water quality is handled in Washington. The most obvious possible impact is a reduction in water quality criteria used for the protection of human health. These standards apply where water bodies are used for consumptive uses—including consumption of fish and shellfish. For dischargers, these criteria are what need to be complied with when discharging to such water bodies, with lower numbers more difficult to comply with. Dramatically lower numbers may be impossible to comply with. Water bodies that don’t meet human health criteria also can be subject to the “total maximum daily load” process, essentially a process that involves inventorying sources of pollutants to a particular water body, developing an understanding of the degree to which those sources need to be reduced in order to lower the levels of pollutants down below the relevant criteria, and then implementing a program to ratchet down discharges to meet those levels. TMDLs are complex and resource-consuming for an agency to perform.

Currently, Ecology uses the human health criteria  promulgated by EPA  for surface waters . These criteria use the 6.5 gram serving size of fish that Ms. Brooks discusses in her article. I don’t want to belabor the details here, but tribal fish consumption rates being used for the Duwamish cleanup are on the order of 100 grams per day, and other tribal consumption rates can be as high as 500 grams per day. Simply scaling EPA’s current criteria by this increase in consumption rates equates to a possible DECREASE in water quality criteria from a low of 20 to an almost 100-fold. Lowering these criteria means lower allowable discharges with a commensurate increase in costs to comply with these more stringent discharge requirements, and more water bodies that would be deemed to be not in compliance with these criteria, with a commensurate administrative cost to create TMDLs. In addition, there is the real possibility that the resulting criteria will be below background concentrations of some pollutants—meaning what is being deposited from the atmosphere or what is flowing in from upstream of a water body will account for more than the acceptable levels of some pollutants. This could set up a zero allowable discharge situation, and also create a situation where Ecology is forced to perform TMDLs on a multitude of water bodies.

It will be interesting to see how this plays out. On the cleanup side of things, one of the issues Ecology is wrestling with is how to apply tribal consumption rates when calculating cleanup levels. That process is ongoing, but some of the ideas being floated at the rulemaking meetings include applying different tribal rates in different areas, or coming up with a composite number that applies statewide. Oregon has also recently addressed this issue, as Ms. Brooks notes in her article. I’ll keep following this issue and post more when I can.