Long delays in updating state water-quality standards to protect orcas, fish and other aquatic species appear to have finally caught up with the Washington Department of Ecology and its federal counterpart, the Environmental Protection Agency.

In a court ruling this week, U.S. District Judge Marsha Pechman of Seattle found that Ecology has “abdicated its duties” to update certain water-quality standards, as required by the federal Clean Water Act. Meanwhile, she said, EPA has failed to meet its legal oversight obligations to ensure that adequate water-quality standards are protective of aquatic creatures.

The lawsuit, brought by Northwest Environmental Advocates, followed a petition filed by the group in 2013 seeking to get EPA to revise Washington’s water quality standards for aquatic species. The petition followed years of delay by the state. The standards, including numeric aquatic life criteria, place limits on toxic chemicals found in the state’s waterways. It took four years, but EPA eventually denied the petition, refusing to make a determination about whether or not the state’s existing water quality standards were consistent with the Clean Water Act.

In its denial and later court pleadings, EPA stressed its desire to support Ecology’s efforts to update aquatic life criteria. Ecology had discussed the update and even proposed it as part of the agency’s 2015-2020 strategic plan, but the work was never started. EPA admitted that Washington’s aquatic life criteria had not been updated for most chemicals since 1992, even though formal reviews and updates are required every three years, noted Judge Pechman in her ruling.

The judge’s order, issued Wednesday, requires EPA to determine within 180 days if the state’s current water quality standards are consistent with the Clean Water Act or if they need to be revised. If they are determined to be inadequate, the act itself requires EPA to promptly promulgate new regulations — unless the state adopts acceptable standards in the meantime.

Ecology officials acknowledge that the agency has been slow to adopt new aquatic life criteria. In fact, the required three-year “triennial review” has not been conducted since 2010. Ecology currently is going through a new triennial review, and the agency’s draft work plan lists the update to aquatic life criteria as a priority over the next four years.

“We have not conducted a triennial review since 2010 because we were in continual rulemaking efforts for the water quality standards,” states the introduction to the draft work plan (PDF 494 kb).

No doubt Ecology dedicated a lot of time and effort to other water-quality rules the past decade. Much public attention — including a legislative battle — was focused on human exposures to toxic chemicals, as Ecology worked through the long development of new human health criteria. The discussions largely revolved around fish-consumption rates for people who eat a lot of fish, along with what was considered an allowable cancer risk.

In a controversial move after Ecology completed its work, EPA refused to accept some of the state’s human health criteria, imposing stronger restrictions than Ecology proposed. The criteria were later reversed by President Trump’s EPA. Even today, the issue is not yet resolved, with a revised rule in the works from EPA in the midst of a lawsuit. (See Ecology’s timeline along with other background.) I have been following these issues since their inception in 2010, including a 2015 article in the Kitsap Sun newspaper.

Some of the rule-making that Ecology says contributed to delays:

• Recreational use criteria
• Total dissolved gas
• Salmon spawning habitat, and
• Chelan River use attainability analysis

Since EPA is in charge of enforcing the provisions of the Clean Water Act, Judge Pechman focused her attention on EPA’s failure to take charge of the situation, other than to encourage Ecology to get moving on the aquatic life criteria:

“The CWA (Clean Water Act) operates on a principle of cooperative federalism where states take the lead in setting WQS (water quality standards) with the goal of eliminating pollutant discharge into navigable waters to protect and enhance human and aquatic life,” the judge wrote in her order (PDF 228 kb). “States must create WQS specific to aquatic life and review them every three years to determine whether new or revised standards are necessary.

“But while states play a lead role in setting WQS, EPA serves as a backstop,” she continued. “Not only does EPA have to review state-adopted WQS, but it must also ‘promptly prepare and publish’ new WQS for a state ‘in any case where the administrator determines that a revised or new standard is necessary to meet the requirements of this chapter.’…

“So while EPA wanted to ‘work in partnership to efficiently and effectively allocate resources to address pollution and accelerate state adoption of new and revised criteria,’ nothing in the record showed that Washington was a willing partner. And certainly nothing in the record supports EPA’s belief that inaction would be an efficient or effective way of ensuring adequate WQS or complying with the goals and requirements of the CWA.”

The judge calls out specific criteria that EPA has recommended for updates, based on scientific studies, including aquatic life criteria for ammonia and copper. She did not accept EPA’s excuse that Ecology may have higher priorities or that EPA lacks the resources to undertake the rulemaking.

“This wait-and-see approach appears particularly ill-conceived in light of EPA’s recognition that copper pollution has an ‘adverse impact on salmonids,’ whose health impacts ‘critically important and endangered species throughout the Pacific Northwest,’” she stated.

Pechman noted that the letter denying the petition for rule-making contains no explanation about how EPA was “marshaling its limited resources to protect Washington’s waters or why simply waiting for Washington to act would be reasonable to meet the CWA’s goals. This undermines EPA’s position.”

The judge also rejected EPA’s argument that the update to Washington’s human health criteria — a related set of standards — would protect aquatic life. She cited EPA’s own recommendations for copper, which are 1,200 micrograms per liter for humans but a maximum of 4.8 micrograms per liter for aquatic life. Under those recommendations, what is considered safe for humans is 250 times higher than what is considered safe for protecting salmon from acute toxicity. (Chronic levels are considered even lower for aquatic life.)

Further, the judge points out, EPA should not assume that its national recommendations would be adequate for the unique species of Washington state — “such as Puget Sound’s Southern Resident orcas who are some of the most contaminated marine mammals in the world due to bioaccumulation through the food stock, particularly through Chinook salmon.”

The judge ordered EPA to make a determination on the adequacy of the state’s aquatic life criteria within 180 days, but she agreed to allow additional time if EPA can provide “specific, detailed explanations of why additional time is necessary and what tasks remain to be performed.”

How that will mesh with Ecology’s time schedule is yet to be seen. Most relevant staffers with Ecology as well as EPA were out this week for the holiday. I will invite them to contribute comments, concerns and additional context when they return.

Ecology’s draft work plan covering the next four years does not lay out a specific timetable for adopting aquatic life criteria. The agency has taken comments on four possible approaches to adopting new water quality standards:

• Option 1: Stagger three rule-making by group (metals, organics, non-priority)
• Option 2: Stagger two rule-making by group (all metals, all organics)
• Option 3: Rule-makings for different groups of chemicals based on highest priority
• Option 4: Review and update all necessary criteria in one rule-making

In bringing its lawsuit, Northwest Environmental Advocates said Washington state has revised aquatic life criteria for some toxic chemicals since 1992, but many remain less protective than EPA’s recommended levels. For 14 chemicals, Washington has no aquatic life criteria at all, whereas EPA has established maximum levels in freshwater to avoid acute or chronic toxicity, according to NWEA. In saltwater, Washington has no criteria for 11 chemicals for which EPA provides recommended standards, the group says.

Under the Endangered Species Act, the U.S. Fish and Wildlife Service and NOAA’s National Marine Fisheries Service have reviewed the adequacy of aquatic life criteria for the states of California, Oregon and Idaho. (USFWS covers freshwater species, while NMFS covers saltwater species.) For a number of chemicals, the agencies have found that criteria adopted by the states and approved by EPA are likely to jeopardize the continued existence of a threatened or endangered species, the so-called “jeopardy” finding.

To show that Washington’s standards are outdated, NWEA listed more than two dozen chemicals for which the state uses numeric criteria that are either higher or close to the levels found to be in violation of the Endangered Species Act.

“Levels of these and other toxic pollutants are among the reasons that EPA has long been concerned about the health of one of Washington’s most important waterbodies, Puget Sound,” states the legal complaint (PDF 490 kb). “EPA features the toxic contamination of Southern Resident killer whales, Pacific herring and harbor seals in Puget Sound on its website as evidence of its ongoing concerns about toxic pollution of Washington’s waters.”