Over the past two years, Washington’s Department of Ecology has been working to revise the estimates of daily fish consumption of various populations in the state. When coupled with a risk assessment, these consumption rates dictate what is deemed to be acceptable levels of toxics in surface waters, and, because of food web effects, in sediments at sites that are utilized by fish populations. In essence, fish consumption rates dictate what are acceptable levels of discharges of toxics to surface waters, and also dictate the level to which contaminated sediments must be remediated.

Washington isn’t the only state to go through this process. Oregon recently went through a similar exercise, raising the default fish consumption numbers ten-fold, from 17.5 grams per day to 175 grams per day (the equivalent of about 23 fish meals per month). Washington has yet to select a number, but it will likely be similar to Oregon’s number.

Ecology put its technical document out for public comment last fall, and the comments received essentially fall into two categories. On one hand, people are supportive of the concept that the current fish consumption rates do not reflect the consumption of many populations in Washington. (See comments from the University of Washington and People for Puget Sound for examples).

On the other side of the coin are parties that will have to comply with increasingly stringent regulatory requirements. These parties include municipalities, and many of the industries that form the backbone of Washington’s economy. When this rulemaking is completed, water quality standards stand to become at least ten times more stringent for many businesses that discharge to surface waters in Washington. In addition, sediment cleanups will likely face the same types of challenges present at the Duwamish River, where cleanup standards based on high fish consumption rates resulted in those standards being below “background” concentrations of many contaminants–making achievement of those standards impossible.

I feel that we’re headed to some form of regulatory gridlock in this process. The need to adjust fish consumption standards is real. For instance, there is no doubt in my mind that many populations in Washington are eating much more than the 6.5 grams per day used to calculate water quality standards. But, recognizing that reality puts Ecology in a real bind, where the resulting regulatory requirements may be very difficult for parties to meet, and it isn’t just a burden faced by industry in Washington, but also many municipalities.

No matter how this process ends up, litigation is likely to result. If Ecology selects a number that is too low, advocacy groups likely will challenge that decision. A number too high may lead to challenges by parties that will be impacted by the new rules. When implemented, Ecology will likely need to rely on regulatory tools such as compliance schedules or variances to be granted to dischargers on a case-by-case basis. Those compliance schedules and variances will become fodder for parties wanting to challenge individual permits. Finally, for cleanup sites, parties may be less likely to voluntarily undertake cleanups–knowing ahead of time that taking on such a responsibility may lead to a commitment to try and attain the unattainable. This may force Ecology to use its enforcement authority to compel cleanups, and it may incentivize parties facing such enforcement actions to dedicate resources to litigating with Ecology, rather than taking on the responsibility for cleanups that cannot be completed.

The one good piece of news for Washington? Since Oregon is a couple years ahead in this process, watching how this plays out in its neighbor to the south may give Washington a preview of what’s coming.