Northwest Environmental Advocates

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Ecology, EPA now under the gun to adopt new water quality criteria for aquatic creatures

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:

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.”

Understanding the cold-water needs of salmon and helping them to survive

Salmon need cold water. This general statement is something I’ve been hearing since I first began reporting on these amazing migrating fish years ago. Cold water is a fact of life for salmon, known for their long travels up and down streams, out to saltwater and back. But colder is not always better.
Questions about why salmon need cold water and how their habitat might grow too warm or too cold led me into an in-depth reporting project. I ended up talking to some of the leading experts on the subject of stream temperature. Thanks to their fascinating research, I learned that temperature and food supply go hand-in-hand to dictate salmon metabolism, growth and survival. You can read my report, “Taking the Temperature of Salmon,” in the Encyclopedia of Puget Sound.

Middle Fork of the Snoqualmie River, near Mount Si trailhead
Photo: Christopher Dunagan

Later in this blog post, I will touch on some new developments regarding temperature and stream conditions — including Gov. Jay Inslee’s latest initiative to help salmon by proposing new laws and regulations along with $187 million in next year’s budget request.
In the Northwest, we almost never need to worry that salmon streams will get too cold. Logging, farming and development have removed large amounts of streamside vegetation, allowing the sun to warm the waters, often to excessive degrees. While sunlight can increase the growth of tiny organisms and boost the food web, higher temperatures also accelerate metabolic rates, increase stress hormones and alter behavioral responses, as I described in my story.
When a section of a stream grows too warm, fish will seek out cooler water, often by swimming upstream to areas cooled by springs or snowmelt. As a change in temperature alters metabolism and behavior, the result can be problems with finding food and with increased threats of predation.
“Anybody who does stream work soon learns that fish are amazing,” Jonny Armstrong, a University of Oregon researcher, told me. “They don’t just accept the habitat they are given; they do all kinds of things to game the system.”
Jonny’s work in Alaska documented how a run of coho salmon moved into cool water to feed on sockeye salmon eggs. After getting their fill, the fish returned to warmer water to digest the food and grow faster.
I’m especially indebted to Aimee Fullerton, who helped me understand a multitude of biological processes related to temperature, as I searched for ways to explain the complex findings. Aimee is a research fishery biologist with NOAA’s Northwest Fisheries Science Center. She has been working in the Snoqualmie River, where temperatures grow warm enough at times to impair the growth and development of salmon and sometimes kill them if they cannot escape into cooler waters.
The prospects of climate change raise concerns about even higher temperatures in the future. Careful temperature measurements, combined with computer modeling, have helped researchers predict future temperature changes. Other experts are developing new strategies for maintaining cooler temperatures to protect salmon, as I outlined in the story.
Just last week, Washington Gov. Jay Inslee announced a new initiative that he will take to the Legislature next year. He hopes to boost salmon populations by improving stream habitat, replacing culverts and other impediments, and cleaning up polluted waters. Inslee also intends to address harvest, hatcheries and hydropower along with critical issues of predation and food availability.
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“There is no time to waste,” the governor said in a news release. “We have a choice between a future with salmon or a future without them. Salmon need immediate and urgent action to ensure their survival. That’s why, for the 2022 legislative session, salmon recovery is a top priority and have both policy and funding to help protect them.”
One of the key ideas that the governor mentioned during his news conference on Tuesday is to build and/or protect streamside corridors based on the height of trees, which provide shade to cool streams. (See video, embedded on this page, at 11:03-14:30.) The riparian corridor is also important in reducing toxic pollutants, bacteria and fine sediments that enter a stream.
The so-called Governor’s Salmon Strategy Update (PDF 1.4 mb) includes provisions for riparian buffers on agricultural lands, which has been a concern of Indian tribes throughout the region. Details have yet to be proposed, but a combination of regulations and financial support are likely.
The latest initiative grew out of the 2019 Centennial Accord meeting between state agencies and tribal salmon experts led by the Northwest Indian Fisheries Commission.
“This is the first time we have seen legislation that would require landowners to protect riparian habitat,” said Dave Herrera, NWIFC commissioner and Skokomish Tribe policy representative who was quoted in a news release. “It is also groundbreaking because it includes incentives for landowners to create and maintain riparian zones, as well as regulatory backstops when compliance isn’t voluntary.”

Next year’s salmon-recovery legislation will be called the Lorraine Loomis Act, named for the late chairwoman of the Northwest Indian Fisheries Commission who promoted cooperative efforts to save salmon. Budget details are included in a policy brief (PDF 1.4 mb) released by the Governor’s Office.
“We know the status quo isn’t working when it comes to salmon recovery,” Lorraine wrote in a column last year. “We know what the science says needs to be done, and we know that we must move forward together.”
On the regulatory front, the federal Clean Water Act calls for standards that protect aquatic life, such as salmon. Where temperatures are not maintained within an approved range, the waters are considered “impaired” — just as they are when bacteria become too numerous or oxygen levels drop too low for the aquatic species of concern.
Although I did not address regulatory issues in my story about temperature, it is worth noting that numerous federal and state clean-water regulations are undergoing changes. Some changes are the result of lawsuits; some follow statutory requirements; and some stem from the coming and going of the Trump administration’s efforts to reduce environmental rules.
For example, the Environmental Protection Agency recently withdrew its approval (PDF 402 kb) for how the Washington Department of Ecology handles high temperatures in certain stream segments that grow naturally warm. The basic idea is that regulatory agencies need not seek out mitigation measures to cool such waters — even in areas too warm for salmon — if it can be shown that high temperatures represent the natural condition of the streams and that humans are not to blame.
The group Northwest Environmental Advocates first brought a lawsuit over such “natural conditions criteria” in Oregon, where NWEA contended that the state was allowing streams to remain dangerously hot by discounting the effects of humans. In this way, the group argued, Oregon was establishing new and higher temperature standards than allowed by existing regulations without going through a public review process. The higher temperatures should be subject to public review and federal oversight, including effects on endangered species, the group said. Federal courts agreed with that reasoning.
Although the Washington Department of Ecology rarely invokes natural conditions criteria for temperature, it must now review its practices and undergo federal oversight where experts believe that the natural condition of a water body would exceed established water-quality standards. Besides temperature, the review will cover criteria for dissolved oxygen. In some areas of Puget Sound, Ecology has determined that numerical water-quality standards would not be met even if no humans were around.
The methods of determining what the water temperature or oxygen level would be in the absence of human activity can become an elaborate exercise involving computer modeling. But Nina Bell, executive director of NWEA, argues that the process is important and should be open to public scrutiny. After all, she said, the outcome can determine whether unhealthy temperatures or oxygen levels persist or are reduced through mitigation efforts.
Other ongoing water-quality matters:

Settlement agreement tackles water pollution caused by farming practices

As part of a legal settlement, state officials have agreed to develop “best management practices” for agricultural operations, while encouraging Washington farmers to take actions to improve water quality in streams and bays.
The agreement, which includes provisions for stream buffers, was approved by the Washington Department of Ecology and the federal Environmental Protection Agency. Signed by a judge, the agreement effectively ends a four-year lawsuit brought by Northwest Environmental Advocates, which accused the agencies of violating the federal Clean Water Act and Endangered Species Act.
The lawsuit alleged that the EPA improperly approved the Department of Ecology’s 2015 plan for reducing nonpoint pollution (PDF 4mb) from ubiquitous sources. Because nonpoint pollution does not flow through regulated discharge pipes, cleanup actions involve reducing contaminants that wash off forests, farms and developed areas. Nonpoint pollution is one of the great challenges for Puget Sound recovery, according to experts.
Under the agreement, Ecology must develop a new plan by the end of next year that describes actions for reducing nonpoint pollution not included in the 2015 plan. The new plan, which was already in the works, will include “best management practices” (BMPs) for agriculture, providing assurance that a farm will generally meet state water-quality standards if specific voluntary actions are taken.
Among the ideas are methods of managing livestock wastes, along with maintaining or increasing vegetative buffers along streams that pass through forests and farms.
“The order in this case includes a combination of commitments by federal and state agencies to ensure that Washington identifies how wide and how tall streamside buffers must be to protect salmon from extinction,” said Nina Bell, executive director for NWEA.
The agreement requires Ecology to complete the first five chapters of a guidance document called “Voluntary Clean Water Guidance for Agriculture,” including a section on buffers, in the 2022 plan. The remaining eight chapters must be finished by the end of 2025.
Ben Rau, supervisor for watershed planning at Ecology, said the BMP guidance is being developed with help from an advisory group that has completed the first chapter on tillage and related crop issues. Go to the guidance website for details.
The section on buffers will be based on scientific studies that show how certain buffer widths and specific vegetation types can reduce sediment going into nearby streams and otherwise maintain healthy water conditions, Rau said. Buffers are just one measure among a “suite” of actions that together will help protect salmon and other aquatic species from harmful activities involving agriculture.
The BMPs will be promoted as a good way for farmers to protect water quality, Rau said. Eventually, the new buffers will become a minimal requirement for farm owners seeking government grants to improve water quality and make their property more salmon-friendly. Current buffer requirements for grants are based on an analysis outlined in a 2012 matrix and a 2013 letter from the National Marine Fisheries Service.
Agricultural BMPs may also come into play as part of an enforcement action by state or local water-quality inspectors. For example, based on stream surveys or citizen complaints, authorities might identify an area of a stream with high levels of bacteria. As part of the cleanup effort, it could be presumed that a farm owner would not need to take further corrective actions if the farm complied with approved BMPs, according to Rau.
The legal agreement also calls for agricultural BMPs to be incorporated into formal watershed-cleanup plans where a watershed includes farming areas. Such plans identify sources of pollution as well as specific measures designed to bring a waterbody into compliance with state water-quality standards. Such plans are often called TMDLs because they establish pollution limits known as “total maximum daily loads.”
The pace of cleanup for Washington’s waterways using TMDLs has been an issue of contention for more than 30 years. A legal action related to watershed cleanups was launched by NWEA in 1991 and renewed in 2019. The lawsuit (PDF 312 kb), which involves Ecology and the EPA, demands that polluted waters in Washington be formally identified and that Ecology increase its efforts to clean up polluted waters through TMDL planning. Beyond planning, there is a recognized need to find ways to get parties identified in the plan to carry out the actions needed to improve water quality.
The recent settlement related to agricultural BMPs raised concerns from the Washington Cattlemen’s Association and the Washington State Farm Bureau Federation, which were allowed to join the case. See their joint comment letter.
The settlement, they argue, could result in requirements for farmers to install nonpoint controls that are “more costly and possibly technically or economically infeasible.” Another problem, they say, has been the failure of the state and federal governments to include the groups in a conversation over BMPs that could affect their very existence.
“At this time, the associations do not intend to formally object to the settlement, if adopted,” their letter states. “However, the associations remain very concerned about implementation of the agreement and whether the water-quality standards to be further developed pursuant to the agreement will be based on sound science and include meaningful consideration to agriculture and the benefits of agriculture to society.”
In one section of its 2015 plan, the Department of Ecology acknowledges its unique statutory limitations when enforcing water-quality laws with respect to certain farming practices that fall under the authority of the Washington Department of Agriculture.
Those limitations plus a perceived reluctance to force farmers to improve water quality in agricultural regions has led to ongoing frustrations by some Native American tribes and environmental groups in Washington state. Check out “Agricultural Pollution in Puget Sound: Inspiration to Change Washington’s Reliance on Voluntary Incentive Programs to Save Salmon” (PDF 3.3 mb) by the Western Environmental Law Center.
While agriculture is a major focus of the recent legal settlement, the updated state plan must address all forms of nonpoint pollution, including that from forests, septic systems and developed areas.
Commercial forestlands, for example, are deemed to meet water-quality standards for the most part, provided that landowners comply with regulations under the state’s Forest Practices Act, Rau said. For years, forestland owners have cooperated in ongoing studies and negotiated with state and federal agencies, tribes and environmental groups to develop rules to protect salmon and water quality.
Through the years, a process of “adaptive management” has identified a need for rule changes, he noted. For example, areas where forest buffers may need to be increased in size are along smaller streams not likely to be used by salmon. With current buffers of minimal width, researchers have found an increase in water temperature due to a lack of shade. Those higher temperatures can affect salmon in downstream waters suitable for spawning.
For a discussion of nonpoint issues in our forests, review Ecology’s page on Forestry runoff, including the 2009 Clean Water Act Assurances Review by Ecology as well as the two-year extension granted in 2019 (PDF 583 KB).
After the next nonpoint plan is completed, the settlement agreement requires the EPA to submit the document to other federal agencies for review to make sure the result is protective of threatened and endangered species. For salmon and marine species, the National Marine Fisheries Service is in charge, while freshwater species are under the authority of the U.S. Fish and Wildlife Service.
Ecology planners have been working steadily to complete the next nonpoint plan under self-imposed deadlines, but Rau acknowledges that the settlement agreement provides legally based time limits. Barring unforeseen circumstances, the next plan must be done by the end of 2022, followed by another update in 2025.
Editor’s note: This article was produced with funds provided by a grant from the Environmental Protection Agency.