Clean Water Act

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Yesterday afternoon, Judge Coughenour issued his decision on the summary judgment motions in the lawsuit brought by Earthjustice on Puget Soundkeeper‘s behalf. The motion alleged that EPA Region 10 violated the Clean Water Act by not promulgating revised water quality criteria for Washington that account for higher fish consumption rates.

The case broke just about how we predicted it would when it was filed back in October. Judge Coughenour’s thoughtful opinion concluded that he lack subject matter jurisdiction to consider Puget Soundkeeper’s challenge because the emails and letters sent to Ecology by EPA that which Puget Soundkeeper did not amount to a “determination” under Section 303(c)(4)(B) of the Clean Water Act that Washington’s water quality standards were inadequate, which would have triggered a non-discretionary duty by EPA under the CWA to promulgate new regulations. Because there was no non-discretionary duty that EPA had failed to fufill, Judge Coughenour concluded he lack subject matter jurisdiction and dismissed the case without prejudice.

Judge Coughenour spends a significant amount of his opinion analyzing the four communications between EPA and Ecology relied upon by Puget Soundkeeper in arguing EPA had a non-discretionary duty to promulgate water quality standards for toxics in Washington. If you have time, his analysis is worth the read, it begins on page three of the order issued yesterday.

In sum, he concluded that these communications did not amount to a Section 303(c)(4)(B) “determination” because:Continue Reading Breaking: Judge Coughenour Dismisses Puget Soundkeeper’s Fish Consumption Lawsuit

Doug’s post on July 23 provided an excellent summary of Ecology’s webinar outlining its revision process for water quality standards (WQSs). Integral would like to point out a few more details of interest in Ecology’s approach.

Ecology indicated that it will continue to use bioconcentration factors (BCFs), which estimate concentrations in fish tissue based on…

Ecology held a meeting at its Lacey offices yesterday to outline the next steps in the process to update Washington’s Water Quality Standards Handbook to account for increased fish consumption rates. This meeting comes on the heels of Governor Inslee’s July 9th announcement regarding his policy decisions in the issue. Yesterday’s meeting was focused on what we can expect to see in the preliminary draft rule to be released by Ecology on or before September 30, 2014.

The presentation materials from yesterday’s meeting are available here. In general, the approach that Ecology is taking in the rule-making is consistent with what was previewed by Ecology back in February, with some new twists coming out of Governor Inslee’s policy decisions and directives to Ecology on the subject. Here is a brief rundown of yesterday’s meeting:

Health criteria variables:
Ecology confirmed what we know from Governor Inslee’s briefing on July 9th. The excess cancer risk for carcinogens will be set at one in one hundred thousand in the new rule rather than the one in one million level used in the National Toxics rule; body weight is going up from 70 to 80 kilograms; the “relative source contribution” for non-carcinogens will be set at one (1) (a departure from EPA’s recommended approach as discussed in this white paper); and the consumption rate of untreated water remains at two (2) liters per day. Of these variables, the excess cancer risk is the most important one–and I’ll talk about that a bit more below.Continue Reading Report from Ecology’s July 22nd Meeting Outlining the Next Steps to Update Water Quality Standards

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