Header graphic for print
Science, Law & the Environment Emerging Topics in Environmental Law

Governor Inslee Issues His Policy Brief on Updating Washington’s Water Quality Standards

Posted in Clean Water Act, Emerging Policy, Environmental Risk, Fish Consumption, Legislation

Governor Inslee held a press conference yesterday morning, where he presented his policy brief on Washington’s ongoing efforts to update its water quality standards to account for higher fish consumption rates. This has been a long time coming, and is a significant development on what is arguably the most important environmental rulemaking effort Washington has seen in years.

The video of the press conference is here, my summary and thoughts follow:

The Governor’s proposed approach is consistent with what we’ve been hearing from Ecology and other sources over the past few months. Governor Inslee proposes to adjust the fish consumption rate (used to calculate water quality criteria for toxics) from 6.5 grams a day (the default in the National Toxics Rule, the current applicable water quality standards for toxics in Washington) to 175 grams per day. This adjustment has been coming for some time, so the new 175 gram per day number isn’t surprising. What is also not surprising is the proposal to use the federal drinking water standard for arsenic instead of the current standard, which is below background because of high levels of naturally occurring arsenic in Washington’s waters.

The most controversial part of his plan has to do with the acceptable cancer risk used in calculating the new criteria. Governor Inslee is proposing to adjust the acceptable excess cancer risk level from one in a million to one in one hundred thousand, with the potential to offset the impact that the much higher fish consumption rate has on numeric criteria for toxics. This is a concept that has emerged over the past year as a work-around to the exceedingly low (and often unattainable) numeric criteria that result from the ~30 fold increase in fish consumption rate. The native tribes in Washington are not enthusiastic about this change, nor is EPA Regional Administrator Dennis McLerran, although the adjustment in excess cancer risk is consistent with EPA’s Clean Water Act regulations and guidance. Had the Governor gone beyond the one in one hundred thousand risk level, EPA policies may have required more robust consideration of the public interest (although it appears the Governor has deeply considered many aspects of the public interest) and EPA policies also require more robust quantification of the actual risk level because of the decreasing amount of conservatism built into higher risk levels. Finally, when this adjustment to the excess cancer risk results in an increase to an individual numeric criterion as compared to the old NTR criterion, Governor Inslee is proposing to retain the older, lower, numeric criterion.

There has been much debate about whether the new criteria are attainable, with the adjustment of the excess cancer risk being driven by the concerns of industrial and municipal dischargers. The new criteria will still be, in some instances, exceedingly difficult to attain for dischargers. As a result, the Governor is including in his proposal more robust implementation tools, including schedules of compliance with longer timeframes, and, for the first time, waterbody-specific variances to allow individual dischargers to achieve compliance with the new criteria. The use of variances is important because it is likely that many of the issues faced by dischargers in achieving compliance with the proposed criteria will be location-specific. But, variances require EPA approval, and it remains to be seen how such variances can be adopted in an era of decreasing agency resources (and perhaps cooling relations between Ecology and Region 10 if the disagreement over excess cancer risk rate isn’t resolved).

The most sweeping and ambitious part of the Governor’s proposal is the inclusion of a wide variety of proposed measures designed to address the disconnect between using the 40-year-old Clean Water Act to address toxics that are coming from diffuse (and not CWA-regulated) sources. These proposals are aimed to compensate for the adjustment to the excess cancer risk, and, politically, appear to represent the Governor’s attempt at balancing the various interests on various sides of this debate. The Governor is including in his proposal a number of action items to address these diffuse sources of toxics to fish (many of which likely will require legislative action), including:

1. Directing the Department of Health and Ecology to perform studies and identify actions to address a number of toxics, including PCBs, phthalates, flame retardants, and zinc.

2. Pass legislation to require industries to look for safer alternatives to toxics in consumer products.

3. Authorize Ecology to ban the use of certain toxic chemicals.

4. “Attack” pollution sources in watersheds in partnership with local, federal, and tribal governments.

5. Funding of various studies related to sources of toxics and technologies to address those sources.

6. Soliciting feedback from stakeholders and provide information to the legislature.

What are my initial reactions? First, it is important to not lose track of the lawsuit filed against EPA for allegedly failing to act in response to Washington’s delay in revising its water quality standards. If the Plaintiffs prevail, this lawsuit has the potential to derail the Governor’s efforts, although if I had to bet, I think EPA and Ecology will prevail. The bigger unknown here is whether the Governor can build the political consensus needed to pass the legislative package that he is including in this proposal. It is likely that we won’t know the answer to that question until the next legislative session ends in late April 2015, and the Governor very clearly noted that he will not share the final water quality standard package with EPA for review and approval until the Legislature has acted on his yet-to-be seen legislative agenda. This legislative timeline presents a potential problem for the Governor, as EPA Regional Administrator McLerran has promised publicly to promulgate toxics standards for Washington if Ecology does not revise the standards by the end of the year. Whether Mr. McLerran softens his position is probably an issue of tribal acceptance, which, so far, is mixed at best.

In sum? The devil will be in the details of the legislation Governor Inslee will be proposing, and the nature of that legislation will probably determine whether Governor Inslee maintains support from businesses and unions, or gains the support of tribes and environmental interests (many of whom declined to participate in the roundtable effort that led up to this proposal). This effort shows the difficulty of building political consensus with respect to such a highly controversial issue. If the Governor does not get tribal approval for this plan, I am wondering if a lawsuit based on treaty rights is looming. If the Governor does not get Region 10 to back off a bit, he may run into issues at the end of the year with EPA stepping into Ecology’s shoes and promulgating new water quality standards that lack the flexibility and pragmatism that is contained in the Governor’s proposal. And, at the end of the rulemaking process, if he doesn’t craft a final rule that appropriately balances the competing interests, a lawsuit led by the unhappy stakeholders is a strong possibility.

Governor Inslee deserves credit for making difficult choices on a politically charged issue. He also deserves credit for acknowledging the lack of a “fit” with respect to the Clean Water Act and modern environmental challenges, and the need to think differently in terms of reducing toxics in the environment. From a science, law and policy perspective, the next year or so will be an interesting time and the results of this effort will likely shape the environmental law and compliance landscape for years to come.