On a clear autumn day, the blue waters of Budd Inlet reflect the distant snow-capped Olympic Mountains. From the water’s surface, nobody can tell if low-oxygen conditions might be lurking below, as they often do, creating a stressful or even deadly environment for sea life.
The fact that beauty can disguise the harsh reality of water quality applies to low-oxygen conditions in numerous bays throughout Puget Sound, from Budd Inlet in South Puget Sound to Penn Cove in Central Puget Sound to Bellingham Bay in North Puget Sound, along with the southern end of a 68-mile-long fjord we call Hood Canal.
To address the low-oxygen problems, the Washington Department of Ecology, along with many others, has conducted numerous studies of actual conditions, developed computer models to identify possible solutions, and started the process of regulation. The agency is now nearing completion of an action plan designed to improve the health of Puget Sound. Along the way, we’ve seen scientific debates and legal battles, as various interests assert wide-ranging opinions about what should be done.
As for Budd Inlet, excess nitrogen, plankton blooms and occasional fish kills are part of the waterway’s history. Studies during the 1980s concluded that Budd Inlet’s low-oxygen waters were the result of a complex combination of watershed conditions, nitrogen sources and circulation patterns that make Budd Inlet an unusual case study.
Low-oxygen waters were coming into the inlet from freshwater sources — including Olympia’s Capitol Lake and nearby streams. Also, before a major system upgrade in 1994, a sewage-treatment plant serving the region was a significant source of nitrogen, known to contribute to oxygen deficits. In addition, according to studies, a significant amount of nitrogen flowed southward into the bay from sewage-treatment plants as far away as Tacoma and Seattle — although the extent of that external nitrogen supply was not known until a modeling effort in 2014. Further complicating the situation throughout Puget Sound is the large, natural supply of nitrogen-rich waters coming in, along the bottom, from the Pacific Ocean.
As described in the previous blog post, federal and state regulations during the 1980s led to upgrades of sewage-treatment plants throughout Puget Sound to meet “secondary treatment” standards for organic wastes. Among them was the regional treatment plant serving Lacey, Olympia, Tumwater and portions of Thurston County, named LOTT. The cooperative venture upgraded the system from primary to secondary in 1982. But even before that, experts realized that much more would be needed to solve the low-oxygen problem.
In 1994, LOTT became the first sewage-treatment system (PDF) on Puget Sound to add nitrogen-removal equipment, known as tertiary treatment, to the treatment process. And, in 2023, LOTT completed construction of a more efficient “second-generation” upgrade to its nitrogen-removal process.
Today, LOTT remains one of the few treatment systems on Puget Sound to institute nitrogen removal, despite ongoing pressure — including lawsuits — from environment groups trying to force upgrades at other treatment plants.
“Known, available, reasonable”
Since 1945, Washington’s water pollution laws seem to be calling for the cleanest water possible, within reason. Through the years, in one form or another, the law has maintained language requiring that wastewater dischargers use “all known, available and reasonable technology” to control pollution — the so-called AKART requirement.
In 2018, Northwest Environmental Advocates, an environmental group, petitioned the Department of Ecology to update its AKART standard to tertiary treatment and require all treatment plants to upgrade their systems to reduce nitrogen levels in effluent to no more than 3 milligrams per liter. After all, said NWEA in the petition, this type of treatment has proven successful in many places across the nation and should be a minimum requirement for keeping up with technology.
“Put simply, it’s well past time for Ecology to make Puget Sound sewage treatment plants switch from the 100-year-old treatment technology most of them are using,” the group said on its website.
Ecology denied the petition, saying tertiary treatment to remove nitrogen did not meet the definition of “reasonable,” as required by law, because such a higher level of treatment is “neither affordable nor necessary for all wastewater treatment plants.”
In a 2019 letter of denial (PDF), Ecology Director Maia Bellon acknowledged that nutrient pollution was a significant problem. She said Ecology is committed to limiting nitrogen from sewage treatment plants to current levels and requiring operators to plan for reductions. Ecology’s goal, she said, is to develop a plan that limits nitrogen levels in Puget Sound by considering where reductions from various sources would have the greatest effect on improving water quality.
NWEA appealed to Thurston County Superior Court and then to the State Court of Appeals. Both deferred to Ecology’s findings that requiring tertiary treatment for all plants in Puget Sound would not be “reasonable.” One study cited by Ecology estimated the cost of upgrading all treatment plants at roughly $4.5 billion, or specifically somewhere between $2.24 billion and $8.96 billion.
The appeals court ruled that AKART does not require Ecology to mandate any treatment system across the board or even impose universal water quality standards. “Rather,” says the written opinion from June 2021, “the statute mandates that Ecology comply with AKART when issuing permits.”
The court concluded that when Ecology applies the required AKART standard to individual permits for each plant, local water conditions — as well as available technology — must be considered.
Another environmental group, Puget Soundkeeper Alliance, brought the AKART issue back to a basic level by appealing a permit issued by Ecology for Seattle’s West Point Wastewater Treatment Plant, the largest discharger of sewage effluent in the Puget Sound region. In its appeal to the Pollution Control Hearings Board in May 2024, the group contended that nitrogen and phosphorus are known pollutants and must be controlled with specific effluent limits under both state and federal laws. (Phosphorus is primarily an issue for lakes.)
“State statutes require that permits include and apply ‘all known, available, and reasonable technology’ or ‘AKART’ to control pollutants in wastewater or other discharges authorized by … permits,” the appeal document (PDF) says.
At the time the appeal was filed, Ecology was working under an approved “nutrient general permit,” which prohibited certain treatment plants from increasing current levels of nitrogen in their effluent. Since then, the Pollution Control Hearings Board has invalidated the general permit for facilities that already have an individual permit, such as the West Point plant. Ecology has asked the hearings board to delay proceedings on the West Point appeal until it can issue a new “voluntary” general permit or else place nitrogen restrictions on the facility’s individual permit. A decision on the request for delay is expected at any time.
Impaired waters and cleanup plans
One lawsuit currently moving through the courts could force the state Department of Ecology or the federal Environmental Protection Agency to complete a cleanup plan for nitrogen throughout Puget Sound without further delay. That lawsuit, based on requirements of the 1972 Clean Water Act, was first filed by Northwest Environmental Advocates against the EPA in late 2021. Parties went into negotiations but could not reach agreement on how to proceed, so the case became active again last year.
“After years of inaction, it’s clear that nothing short of a court order will force EPA and Washington’s Department of Ecology to clean up Puget Sound,” asserted Nina Bell, NWEA’s executive director, in a December 2021 press release about the proposed plan to set nitrogen limits for Puget Sound.
Under the Clean Water Act, states are called on to decide if segments of streams, lakes and marine waters are clean or polluted. The question is: Do the waters meet water-quality standards set by Ecology and approved by the EPA? Standards may include numeric criteria, such as the concentration of dissolved oxygen, or they may be based on natural conditions — theoretical levels that would exist without human influence. (See Encyclopedia of Puget Sound.)
Under the law, water bodies that fail to meet water-quality standards are declared “impaired,” and Ecology must undertake a cleanup plan to restore the water body to a healthy condition. The plan involves a determination of the maximum level of pollutants, such as nitrogen, that could be allowed without violating water-quality standards. The document is called a TMDL, for total maximum daily load. The goal of the TMDL process is to reduce various sources of pollution until the total amount is at a safe level, as defined by the calculated TMDL number.
According to Ecology’s own estimates at the time, based on modeling, about 20 percent of Puget Sound’s marine waters failed to meet water-quality standards for dissolved oxygen, states a legal complaint (PDF) filed by NWEA.
“For over three decades, the marine waters of Puget Sound have been known to be impaired by dangerously low levels of dissolved oxygen, caused by nitrogen pollution…,” the document asserts. “Along with oxygen depletion, nitrogen pollution fuels extensive algal blooms in Puget Sound, some toxic to people, some toxic to shellfish, and some that are upending the food chain that supports imperiled Chinook salmon and orca whales.”
Ecology’s approach, sanctioned by the EPA, is to develop a “TMDL alternative” — a nutrient-reduction plan. The effect of that approach has been to avoid regulatory actions required by the Clean Water Act, according to the lawsuit. Citing a 1996 case in Idaho, the complaint says that Congress in 1972 intended that TMDLs be developed “in months and a few years, not decades.” In 2019, the EPA approved Ecology’s idea of creating a nutrient-reduction plan without a TMDL.
According to the lawsuit, failure by Ecology to submit TMDLs to improve water quality in Puget Sound effectively signals a lack of intent to do so and triggers a requirement that EPA take over development of TMDLs to reduce nitrogen and improve oxygen levels.
In response to NWEA’s lawsuit, attorneys for the EPA insist that neither Ecology nor the EPA have abandoned their efforts to clean up Puget Sound, including the need to address sources of nitrogen, so NWEA’s demands are not justified.
“When this case reaches the summary judgment stage, EPA will argue that Washington has not abandoned efforts to control dissolved oxygen impairments in the Sound; it has made the Sound the center of a robust, multi-pronged monitoring and regulatory effort,” states a response brief (PDF) from EPA filed in February. “And while Washington is currently prioritizing direct controls on nutrient pollution through permitting, its cleanup plans also include developing a TMDL to address any remaining dissolved oxygen impairments in Puget Sound.”
U.S. District Judge Barbara Rothstein, who is presiding in the case, has asked that legal motions, briefs and documentation be submitted on a schedule starting July 25 and ending Dec. 5 of this year, with her order to follow.
Long-term cleanup schedules
Another lawsuit involving pollution-cleanup plans was first filed by NWEA against the EPA in 1991. Even after 34 years, many issues in the stop-and-go case are still quite alive, because Ecology has been unable to keep pace with an agreed schedule for completing TMDLs. EPA needs to step in as a matter of federal law, according to NWEA.
The 1991 lawsuit was filed when Ecology completed about 20 water-quality-improvement plans over 19 years under the 1972 Clean Water Act, a number that NWEA considered grossly inadequate.
The case was settled out of court in 1992 but reactivated in 1994. In 1998, the parties reached an out-of-court settlement with Ecology agreeing to a long-term aggressive schedule. Under the agreement, Ecology would complete 59 TMDLs statewide the first year and the rest — some 1,566 at the time — over 15 years.
In 2019, some 27 years after the agreement was signed, NWEA reactivated the lawsuit again, saying Ecology had completed less than 900 TMDLs — well short of the 1,566 that were scheduled to be done by 2013. Over the 15 years, Ecology completed an average 58 TMDLs per year but added an annual average of 222 additional “impaired-water” segments that require TMDLs.
“In other words,” the complaint (PDF) says, “Washington identifies impaired waters for which TMDLs are needed at a rate four times the pace at which it completes TMDLs for impaired waters.”
After the 15-year period was up, the pace of TMDL development by Ecology slowed considerably, according to the lawsuit, adding that the agency also failed to submit a prioritized schedule of future TMDL efforts.
Eventually, the lawsuit led to another settlement in 2023. This time, the parties agreed to allow EPA to hire a consultant to carefully examine the TMDL program and make recommendations for improvement. In response to questions, EPA officials said the consultant’s report, expected by the end of this year, will describe Ecology’s TMDL program, identify challenges to timely completion and offer recommendations on how to complete TMDLs faster.
“This report will be a neutral analysis of Ecology’s program so that they can look at the recommendations and decide which options to pursue,” according to a statement from the EPA.
Ecology officials say cleanup plans have become more complex and more comprehensive through the years. Now, a single plan may cover entire watersheds, not just specific segments of streams or marine waters. Newer plans also consider multiple water-quality parameters, not just one, in each TMDL. Officials deny committing any violations of federal law, but say they look forward to the third-party evaluation.
“Though we regularly self-assess to consider opportunities for improvement, this external review is structured to provide new insights and recommendations for ways we can continue to improve while efficiently using our resources for all stages of developing and implementing water quality cleanup plans,” Ecology says in a blog post about TMDLs.
“The goal is to reach an agreement on the number of water quality cleanup plans we complete, while ensuring they are effective, support implementation, and clean up Washington’s waters.”
Budd Inlet TMDL
Efforts to improve oxygen conditions throughout Puget Sound include a special focus on Budd Inlet, where an approved water-quality cleanup plan, or TMDL, uniquely connects to a larger nitrogen-reduction plan for all of Puget Sound. The plan, completed in 2022, identifies the major sources of low oxygen and spells out actions to bring Budd Inlet back into compliance with water quality standards.
Based on years of study and computer modeling, with a consideration of water conditions in every portion of Budd Inlet, experts learned that the “critical period” for low oxygen typically begins in August and runs through September. This seasonality became a clear factor in deciding how and where restoration efforts should take place.
It turns out that the greatest factor in oxygen depletion is Capitol Lake, a man-made lake created in 1951 by damming the Deschutes River where it flows into the upper end of Budd Inlet. The lake stimulates the growth of freshwater algae and aquatic plants, which die and wash into Budd Inlet, where their decay consumes available oxygen. Scientists estimate that Capitol Lake accounts for 62 percent of Budd Inlet’s oxygen depletion.
An environmental impact statement, completed in 2021, provided alternatives for addressing the environmental problems created by the dam, including the effects of dam removal and estuary restoration. In 2023, the Legislature approved funding to move ahead with planning and designs needed to remove the dam and restore 260 acres of estuarine and salt marsh habitat. If things go smoothly, the restoration project could begin within three years.
The second-greatest source of oxygen depletion, representing 20 percent of the problem, is a flow of nitrogen into Budd Inlet from the rest of Puget Sound. While waters flow both in and out of inlet — and the net flow is outward — the incoming waters, mostly along the bottom, are much higher in nitrogen.
Unlike most TMDLs, which prescribe actions to reduce various sources of pollution in prescribed amounts, the Budd Inlet cleanup plan calls for a 61 percent reduction in oxygen depletion caused by these incoming waters from Puget Sound. How to accomplish this reduction, known as a “bubble allocation,” will be determined by the larger planning effort being conducted throughout Puget Sound, called the Puget Sound Nutrient Source Reduction Project. Meeting water quality standards in Budd Inlet will depend on the success of actions outside as well as inside, the waterway.
Other sources of oxygen depletion in Budd Inlet include upstream areas of the Deschutes River watershed (15 percent of the problem) and sewage treatment plants (3 percent). Various actions are proposed for each of these sources to reduce their contributions to the problem.
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This article was funded in part by King County in conjunction with a series of online workshops exploring Puget Sound water quality. Its content does not necessarily represent the views of King County or its employees.
The series
Part 1: The debate over oxygen in Puget Sound
Part 2: Water-cleanup plans and the search for ‘reasonable’ actions
Part 3: Computer models spell out the extent of the water-quality problem.
Part 4: Many actions may be needed to improve Puget Sound waters