Tribal Fish Consumption

Note: this is part 2 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1.

Tribal Relations
One of the key factors influencing environmental law and policy in the Pacific Northwest is the presence of and obligations owed to a number of tribes that are parties to treaties with the United States that extend back to the 1850s. The Federal Government has, historically, taken an active role in defining and enforcing those treaty rights on behalf of the tribes, and takes quite seriously its government-to-government obligations with respect to those tribes as sovereign entities (a good summary list, prepared in 2009 by the White House-Indian Affairs Executive Working Group is available here).
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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.

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As directed by Governor Inslee back in July, the Washington Department of Ecology released a preliminary draft rule that will ultimately lead to the amendment of Washington’s Water Quality Standards for toxics. This is the next step in a multi-year process under which Washington is adjusting its WQS to account for a higher fish

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:


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