With a hat tip to Josh Lipsky over at Cascadia Law for being on top of the latest in filings in the Western District of Washington on a Friday afternoon:
Earthjustice and other environmental groups filed a complaint against EPA today alleging that EPA has violated Section 303(c)(4) of the Clean Water Act because EPA has failed to promulgate water quality criteria for toxics in Washington State based on fish consumption rates higher than the 6.5 gram-per-day rate currently used in Washington’s toxics criteria. I covered this issue briefly in a post a few weeks ago, and Michael Gillett has a nice piece on this 60-day notice with more background over at his blog.
My initial reaction is that the case will turn on whether EPA has “determined” under Section 303(c)(4)(B) that revised water quality criteria are required to be promulgated to meet the requirements of the Clean Water Act and that Washington–in administering its delegated program under the CWA–has failed to adopt those standards. In that situation, EPA is required to promulgate such standards within 90 days of making the determination and impose them upon the delegated program at issue.
The complaint cites many communications between EPA and Ecology on the subject where EPA expressed a desire to see Washington adjust its WQS for toxics to incorporate a higher fish consumption rate. I think EPA will argue that those communications were part of its oversight and administrative functions in coordinating with Ecology as Ecology administers its delegated program under the CWA, and that these communications were not a determination under Section 303(c)(4)(B). In fact, this is exactly the type of situation EPA is addressing in its current rulemaking effort to clarify the CWA regulation–i.e., adding to its regulations an explicit requirement that a determination is only made under Section 303(c)(4)(B) where EPA’s Administrator or his or her delegate has signed the determination, along with an explicit statement that a determination is being made under that section. (See page 5 of this document). Whether EPA is successful in its arguments in defending this suit is another issue–the complaint lists a number of communications that a court may conclude are such determinations under Section 303(c)(4)(B), and the outcome of this lawsuit will heavily depend on how the court views these communications. Another factor the court will need to consider is Ecology’s ongoing (but apparently too slow for Earthjustice’s taste) efforts to revise its water quality criteria to incorporate high fish consumption rates, and whether that rulemaking effort moots this lawsuit.
From a policy perspective, many of the parties bringing this lawsuit were invited to Ecology’s ongoing delegate table process to have a voice in crafting the new water quality standards for toxics that incorporate higher fish consumption rates. Columbia Riverkeeper and Spokane Riverkeeper–two of the plaintiffs in the new lawsuit–declined those invitations from Ecology, using rather strong language in doing so. The fish consumption issue and how that translates into new rules in Washington is probably the biggest environmental policymaking effort this state has seen in years–and there is the real potential for the rule, if not carefully crafted, to result in enormous burdens on dischargers with the potential for little or no improvement in water quality. If the rule is crafted in a way that imposes impossible standards on dischargers, the only winners are the parties bringing citizen suits against those dischargers. Ecology has a difficult task here, having to balance many competing interests, and it seems like the ongoing efforts using the delegate table process are a honest attempt to balance those issues and craft a workable rule. I guess everyone has the right to be impatient because the process has taken some time, but I am disappointed that the plaintiffs in this new suit against EPA didn’t take the time to participate in Ecology’s legitimate rulemaking, and are now using the blunt tool of a lawsuit against EPA to try and force promulgation of a rule that could end up being unworkable, costly, and with little-to-no environmental benefit.