Cleaner Waters for Washington at Long Last?

by Catherine O'Neill

August 08, 2016

The Clean Water Act instructs states and tribes to revisit their water quality standards every three years, updating them as necessary to reflect newer science and to ensure progress in cleaning up the nation's waters – to the point where people can safely catch and eat fish. Last Monday, Washington State's Department of Ecology unveiled its long-awaited update, revising standards that had been developed back in 1992. The state's rulemaking process has been marked by controversy and delay, which I have criticized several times in the past (see here and here and here and here). Do the new standards finally mean progress? 

Ecology's director, Maia Bellon, characterized the new standards as "protective and achievable." While Washington's standards are indeed likely to be attainable – as Special Assistant to the Director Kelly Susewind candidly told The Tacoma Daily News, "Ecology doesn't expect the new rules to have any immediate or near-term impact on permitted entities" – it is difficult to see how Ecology can claim they are "protective."  

To the contrary, for many of the contaminants that matter for human health, Ecology's final rule either does nothing to improve the protectiveness of its standards or, worse, it actually decreases their protectiveness. Methylmercury? Ecology's rule does nothing. PCBs? Nothing. Dioxins, arsenic, and five of the seven carcinogenic polycyclic aromatic hydrocarbons (PAHs)? Ecology's rule makes things worse, instating more lenient standards than those previously in force in the state. 

Yet Ecology had long ago conceded that its previous standards were grossly underprotective, given that they had been set to permit people to safely eat just 6.5 grams of fish per day – about one fish meal per month. And the agency is well aware that methylmercury and PCBs are responsible for the vast majority of the fish consumption advisories that currently blanket the state. Ecology also knows that the other contaminants listed, about which it does nothing or worse, join methylmercury and PCBs among the toxic substances of greatest concern for the Puget Sound – in fact, Ecology conducted the study on these contaminants

How, then, can the agency characterize this rule as progress – a characterization that is being echoed in the press, which has described the new standards as "tougher"  and "stricter"? 

Ecology's new rule does, in fact, reflect a step forward with respect to one of the assumptions used to calculate the standards: the fish consumption rate (FCR). Faced with ample scientific evidence that people affected by Washington's standards consume fish at rates considerably greater than the agency had previously assumed, the state was persuaded that it could not defensibly use an FCR of less than 175 grams per day. Ecology's new rule also continues to embrace the state's longstanding judgment that people should not be subjected to an increased cancer risk greater than one in 1 million (a relief, given that the agency had attempted to sanction a tenfold greater cancer risk level in a previous iteration of its rule).  

That is, Ecology's new rule reflects these relatively more protective inputs generally.  

But if one reads on, one learns that Ecology has singled out four contaminants for special treatment: methylmercury, PCBs, dioxins, and arsenic. The agency enlists an array of techniques to arrive at its nothing-or-worse bottom line for these four contaminants. And, if one keeps digging and calculating, one learns that Ecology has been selective about the other inputs to its standards – opting for more recent numbers (e.g., for assumptions about human body weight) when these result in more lenient standards, but eschewing more recent numbers (e.g., for calculating the degree to which contaminants bioaccumulate in fish tissue) when these would result in more protective standards. 

What this means is that while Ecology has finally increased the headline-making fish consumption rate, it has found many subtle ways to undermine the impact this increase would have. The press – and, crucially, the public – is to be forgiven for believing the rule makes real progress toward lifting fish advisories and ensuring that "Washingtonians will one day be able to eat more fish without worrying about increasing their risk of cancer from toxic substances." 

One would need a good deal of time and the guidance of expert toxicologists (I am indebted to several, including Bill Beckley) to determine that the rule's apparent progress is just that. While the apparent FCR is now 175 grams per day, the actual rate of fish intake protected by Ecology's new rule is still only 6.5 grams per day (one fish meal per month) where methylmercury or PCB contamination is the concern, as it often is in the real world. Like the glistening waters of the Puget Sound, the agency's rule looks good on the surface. 

The end result: the rule does not move Washington's waters much closer to being "fishable" – it does not meaningfully improve people's ability to safely put fish on their family tables. 

Moreover, Ecology's claim to have produced a rule that is "protective" rings hollow when one compares it to the standards recently proposed for Washington by the federal Environmental Protection Agency (EPA) or to the standards enacted by neighboring states and tribes. EPA's proposed PCB standard is roughly 23 times more protective than Washington's; EPA's proposed arsenic standard is approximately 1,500 times more protective; and EPA's proposed standards for six of the seven carcinogenic PAHs are about 88 times more protective. Oregon's current standard for dioxins is over 110 times more protective that Washington's. In a few instances – e.g., for bis(2-ethylhexyl)phthalate – Ecology's new standard improves upon the previous one, but this is the exception for the contaminants that matter, and even here, EPA's proposed standards would be even more (about five times more) protective than Washington's.  

Ecology's claim to have promulgated a "protective" rule is, at bottom, disingenuous. It fails all those people who would consume healthy amounts of fish – without thereby being subjected to the risk of cancer and other serious harms (e.g., exposure to methylmercury in utero or during childhood can lead to irreversible neurological damage).  

The agency's rule is particularly troubling for the fishing tribes, whose members consume among the highest amounts of fish from waters affected by the rule. As the Northwest Indian Fisheries Commission emphasized to Ecology, "[c]ontamination of fisheries resources precludes tribal citizens from the exercise of treaty-reserved rights to harvest and consume fish, and creates disproportionate loss to tribal communities that are excluded from the nutritional, cultural, and economic uses of these resources." The agency's rule would leave this contamination largely unaddressed, necessitating ongoing warnings against eating fish – abhorrent advice that urges tribal people to alter the very lifeways that define them as fishing peoples. 

Fortunately, Ecology's rule is not the last word on the subject. The EPA is a federal trustee, with a duty to uphold tribes' treaty-secured and other rights; EPA also has its own obligations as custodian of the Clean Water Act. While the act looks first to the states and tribes to set standards for their respective waters, it nonetheless recognizes that political and other pressures may hamper states' attempts to do so. Thus, under the law, the EPA is authorized to either approve or disapprove state standards, and the agency must step in and set water quality standards for states "in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements" of the Clean Water Act, among which is the attainment of the basic goal of fishable waters. 

EPA has already recognized the potential need to step in and issue water quality standards for Washington State. Having found that the state's previous standards were not protective of the applicable designated "uses," which include fishing and shellfish harvesting, EPA has proposed its own standards, as alluded to above. Importantly, in doing so, EPA acknowledged the relevance of tribal rights to this undertaking

In determining whether [water quality standards] comply with the CWA and EPA's regulations, when setting criteria to support the most sensitive use in Washington, it is necessary to consider other applicable laws, including federal treaties. In Washington, many tribes hold reserved rights to take fish for subsistence, ceremonial, religious, and commercial purposes, including treaty reserved rights to fish at all usual and accustomed fishing grounds and stations in waters under state jurisdiction, which cover the majority of waters in the state. Such rights include not only a right to take those fish, but necessarily include an attendant right to not be exposed to unacceptable health risks by consuming those fish. 

Although EPA proposed its standards for Washington in September 2015, it has taken no further action since, prompting environmental groups to sue. Last Wednesday, federal district court judge Barbara Rothstein found that EPA's failure amounted to "agency dereliction" and held that, in view of the state's issuance of its own rule in the meantime, EPA is to act – approving or rejecting the state's rule or finalizing its own standards for Washington – by November 15, 2016. 

It is now up to EPA. EPA needs to act in a manner that honors tribes' rights, furthers the goals of the Clean Water Act, and ensures that there is actual – not merely superficial – progress toward allowing people once again to eat fish without worrying about toxic contamination.

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Catherine A. O'Neill is a Habitat Policy Analyst for the Northwest Indian Fisheries Commission, and a former Professor of Law at Seattle University School of Law.

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