The federal Environmental Protection Agency (EPA) Administer Andrew Wheeler last week signed a proposed rule repealing its water quality standards and restoring less stringent standards adopted in 2016 by the Washington Department of Ecology. The announcement kicks off a 60-day public comment period before the decision is finalized. However, the federal agency’s actions have already triggered a lawsuit filed by Washington Attorney General Bob Ferguson, and another could follow once EPA readopts Ecology’s rule.
While Ferguson and other state officials say the reversal by EPA is illegal, others argue that there is legal precedent. Yet, even if the courts were to ultimately side with EPA on the matter and allow Ecology’s original rule to stand, other lawsuits could be filed by tribes or environmental groups if the state agency allows variances for the National Pollutant Discharge Elimination System (NPDES) permit needed by industry as well as local and county governments that have wastewater treatment facilities.
For groups like the Northwest Pulp and Paper Association (NWPPA), the latest decision represents another step in the right direction since 2016, when EPA overrode Ecology’s rule despite pressure at the time by Governor Jay Inslee’s Office and Ecology Director Maia Bellon. NPPA was among those who petitioned the EPA to reconsider its rule and restore Ecology’s standards, both of which the federal agency has agreed to.
Yet, a long legal struggle may be in store. The fly in the ointment is that both rules impose harsher standards than those previously adopted in 1992. Not only could they induce enormous costs to upgrade facilities, but current technology is not capable of meeting some of the maximum allowable levels of chemicals.
Either way, state residents are still likely to get higher utility bills, says NWPPA Executive Director Chris McCabe. “This affects local governments and ratepayers just like it does the private taxpayer. Everybody’s got the same permit and everybody who has wastewater discharge has to meet the same unattainable federal standards.”
Ferguson claims that EPA’s decision violated two sections of the federal Clean Water Act. McCabe says the lawsuit’s basis is “pretty thin,” citing EPA’s reconsideration in 2016 of Idaho’s water quality standard for arsenic.
“There’s instances in other states where EPA has done an about-face,” he said. “The real story is why is the attorney general fighting to uphold the federal rule? Why isn’t the attorney general defending state law?”
Regardless, the controversy could continue even if Ecology’s rule stands. Ecology Spokesperson Colleen Keltz told Lens that the department is for now operating under EPA’s rule and are considering requests by five applicants with permits to discharge wastewater into Spokane River for variances regarding PCBs, a legacy chemical. Keltz said they plan several public workshops on the matter in the Spokane area this fall. A draft rule is expected to be released next spring; EPA’s approval is ultimately required for each variance.
However, a recent Ninth Circuit Court decision could have enormous implications for any approved variances. In 2016, the Upper Missouri Waterkeeper sued the state of Montana after it and EPA granted 20-year variances regarding nitrogen and phosphorus, citing “widespread economic and social impact” of full compliance. In a March 2019 decision, a federal judge ruled that EPA could consider economic impacts when issuing variances, but it lacked a clear path to comply.
Keltz said Ecology is aware of the court decision and its potential impact to any variances they create. “We think the circumstances of the variance is much different than we envision doing it. Our end goal is to have people meeting the current water quality standards – that is where we would be looking to go with our variance, and we think that may be a key difference.”
McCabe believes having standards that require variances to begin with makes litigation inevitable. “It puts everything at risk in the hands of a court, and that’s just not a good way to have a permitting system. Business can’t tolerate not knowing whether they’re going to get their permit in five years or not.”