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Back to the Drawing Board: What’s Next for the Fish Consumption Rule in Washington State?

Posted in Clean Water Act, Emerging Policy, Fish Consumption, Natural Resources and Environment, Public Health Policy, Rule Making

I have written extensively on the efforts by the Washington Department of Ecology to revise Washington’s Water Quality Standards to account for a higher fish consumption rate. This summer was when we were supposed to see the final rule be submitted to EPA for review and possible approval. In a nutshell, the controversy around this rule has to do with the upward revision in the fish consumption rate used to calculate Washington’s Water Quality Standards. That revision (from 6.5 grams per day to 175 grams per day) would result in more stringent WQS for many toxics—with the fear among dischargers being that those new criteria would be unattainable. Governor Inslee’s proposed solution—now over a year old—was to revise the excess cancer risk rate used in the WQS calculation from one in a million to one in one hundred thousand, and then couple the revised WQS with a package of regulatory efforts designed to address toxics from diffuse sources.

The latter part of Governor Inslee’s plan required legislative action. The legislature failed to act during this last session and, as a result, Governor Inslee recently announced that he was sending Ecology back to the drawing board to consider options in light of the failure to pass his comprehensive toxics reduction package. I have yet to see a reaction from EPA Region 10, but there are a couple of scenarios that may result from this announcement:

  1. EPA moves ahead to promulgate a rule to be applied in Washington. Previously, EPA Regional Administrator Dennis McLerran has made it clear that he plans on moving forward with promulgating a rule for Washington if Governor Inslee did not act by the end of 2014. Apparently, the announcement of draft rule language bought Washington some time—with Ecology’s stated goal being to submit a rule to EPA by the end of July. That didn’t happen, so it is quite possible that EPA may promulgate a rule to be applied in Washington. Given Regional Administrator McLerran’s statements on this issue, that rule likely will look like the Oregon approach to this issue, namely a fish consumption rate of 175 grams per day and an excess cancer risk of one in one million, and may lack the regulatory flexibility that would have come with Ecology’s version of the rule.
  2. Someone sues Ecology and the Governor’s office. Various stakeholders (tribes and environmental groups) have expressed frustration with the pace of this rulemaking effort, and have also expressed disapproval of Governor Inslee’s grand compromise announced last year coupling a revised excess cancer risk rate with the toxics reduction package. And, we have already seen one lawsuit filed on this issue. It is likely that Ecology and Washington would have had to defend that rule in a subsequent challenge after it was adopted, and it may be likely that this announcement sparks additional litigation efforts by disgruntled stakeholders.

The announcement by the Governor comes directly on the heels of his announcement to proceed with implementing carbon emissions limits through executive action, and the Governor is clearly frustrated by his inability to pass key environmental legislation in the past session. As I noted back in January, education funding likely would be front and center in the legislative session, and that turned out to be the case. The Governor has pitched himself as the greenest governor in the nation, so these initiatives are of critical importance to him. They also are (as we head into an election season) likely an important part of him shoring up his political base. Personally, I was encouraged by the Governor’s past efforts to involve dischargers and the regulated community to craft a workable water quality rule, and if Washington is to be a leader in addressing emerging environmental issues, such a stakeholder involvement process is likely necessary. Politically, the Governor holds a significant advantage over potential challengers because of his environmental and green credentials (always a factor in carrying the west-of-the-Cascades vote), but I wonder if Mr. Inslee may end up vulnerable to a moderate, right-of-center challenger with a green environmental platform, such as the one that Bill Bryant appears to be developing.

Stay tuned, the fish consumption issue is far from resolved in Washington State.