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.

Continue Reading

This week has been a week of catching up, so some of this may be old news to you, but maybe you have a tall stack of things you aspire to read someday and you’ll have some sympathy…

St. Mary’s Cement Inc. Against the EPA
Out of the Sixth Circuit, by way of Michigan, a

The EPA and Army Corps of Engineers released a preview of the long-awaited proposed rule updating the definition of “Waters of the United States” yesterday morning. The proposed rule will soon be published in the Federal Register, but the unofficial version of the rule is available now. My initial reaction is that this rule—while being couched in terms of providing “regulatory certainty”—may actually expand the scope of waters regulated under the Clean Water Act (CWA).

Not surprisingly, the EPA and Corps followed Justice Kennedy’s concurring opinion in Rapanos v. United States, that concluded that wetlands were “Waters of the United States” if those wetlands had a “significant nexus” to waters that are or were navigable, or could reasonably be made so. A “significant nexus” was defined by Justice Kennedy as wetlands that “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical or biological integrity of other covered waters more readily understood as navigable.” This definition of significant nexus runs throughout the just-released proposed definition of “Waters of the United States,” and uses Kennedy’s language and concepts.

The core of the proposed definition of the “Waters of the United States” are waters that have been traditionally regulated under the CWA and the Rivers and Harbors Act pursuant to Congress’s Commerce Clause authority, i.e., navigable waters, including waters that have been navigable in the past or may be susceptible to use in interstate or foreign commerce; wetlands that are interstate in nature; territorial seas; and impoundments of these types of waters. I’ll refer to these waters as “traditional waters” through the rest of this post.


Continue Reading

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