Water Quality Standards

If you have not yet seen the press, yesterday, EPA issued its final rule revising water quality standards for toxics in Washington. This finalizes the draft rule published more than a year ago, and comes on the heels of the lawsuit brought against EPA for not finalizing that rule in a timely fashion. It also comes on the heels of Washington submitting its own water quality standards to EPA for approval under the Clean Water Act this past August. So, the action by EPA is two-fold: first, it finalized its own rule that will be applicable in Washington (replacing the National Toxics Rule), and second, it approved and disapproved parts of Washington’s submittal. The net result is one new, comprehensive set of water quality standards that will form the basis for permits issued in Washington under the Clean Water Act.

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Earthjustice, representing a number of environmental groups, sued EPA on Friday alleging that EPA is in violation of the Clean Water Act because it has not finalized the draft rule it published back in September that set water quality standards for toxics in Washington based on higher fish consumption rates. This lawsuit is not a surprise, because it came after the requisite 60-day notice was sent to EPA back in December. It is also not the first time this group of plaintiffs have sued EPA with respect to this issue, having done so more than two years ago. That lawsuit was dismissed on summary judgment.

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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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This is another in the series of guest posts authored by the consultants we work with and trust. Owen Reese is a Water Resources Engineer at Aspect Consulting approached us and offered to provide Aspect’s perspective on Ecology’s efforts to update its Water Quality Assessment for freshwater. We eagerly took Owen up on the offer because this work by Ecology has the potential to impact a number of dischargers throughout Washington State and fits well into Science Law and the Environment’s editorial goal of analyzing the intersection of science, law, and policy.

-Doug Steding

The Washington State Department of Ecology (“Ecology”) recently proposed updates to Washington’s Water Quality Assessment for freshwater, as required by sections 303(d) and 305(b) of the Clean Water Act. This list is important because it identifies which waters require water cleanup plans and could result in additional requirements for NPDES permit holders discharging to waters identified as impaired.

Ecology is seeking public comment until May 15, and is currently hosting a series of listening sessions to introduce the proposed changes in the Water Quality Assessment. The remaining sessions are: April 15 in Yakima, and April 16 in Spokane Valley. I attended the first session in Edmonds on April 7. This article summarizes my key takeaways from the presentations, with particular attention to potential effects to NPDES permittees.
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