In what may be the beginning of the final chapter of a long-running saga over water quality standards in Washington State (Washington), the U.S. Environmental Protection Agency (EPA) has approved the removal of federal human health criteria (HHC) water quality standards applicable to Washington. The agency maintains that there will not be a gap in water quality standards due to its recent approval of standards that Washington submitted to EPA in 2016. Washington contests EPA’s decision to withdraw its 2016 HHC standards and has challenged this decision in federal court. Washington will now need to decide whether to retain its 2016 standards or modify and resubmit standards to EPA for approval.

Water Quality Conflict and Changing Sides

Washington and EPA have been battling for several years, switching sides several times, over the HHC standards applicable to water quality in Washington State under the Clean Water Act.

In 2016, Washington enacted its own HHC and submitted them to EPA for approval. EPA, under the Obama administration, approved some, but rejected the majority of the proposed criteria and enacted a rule implementing its own, stricter standards. The standard for polychlorinated biphenyls (PCBs), found in both wastewater and stormwater, was the most controversial. While the Obama administration EPA insisted upon a more stringent standard, many criticized it as impossible to meet with existing technology. In 2016, EPA defended this standard as based on the best available science. Moreover, Washington had planned built-in flexibility for dischargers that could not meet the standard. 

However, in May of 2019, the Trump administration EPA issued a letter announcing its intention to reverse its rejection of Washington’s proposed 2016 HHC and approve all but two of Washington’s proposed 2016 HHC, and to initiate a rulemaking to formally withdraw the federally promulgated HHC standards. EPA explained its 2019 approval of Washington’s proposed 2016 HHC would take effect once the federally promulgated HHC standards were withdrawn.

The Trump administration EPA proposed formally withdrawing the federally promulgated HHC on July 23, 2019. The agency then held a sixty-day comment period, including two public hearings – one online and one in-person.

In the meantime, Washington filed a lawsuit requesting declaratory and injunctive relief against EPA. The lawsuit argues that EPA cannot simply decide to reconsider its earlier rejection of Washington’s proposed 2016 HHC. Washington argues that reconsideration can only occur where a new or revised HHC is proposed by Washington and approved by EPA, or if EPA determines that a more restrictive HHC is necessary. Washington moved for summary judgment against EPA on April 14, 2020.

EPA Withdrawal of HHC Standards

On April 16, 2020, EPA finalized the withdrawal of its HHC standards based on the agency’s approval of Washington’s 2016 standards. Washington now has the authority to act and adopt water quality standards, including HHC in the State.

While many industry groups and some Washington officials who requested that EPA reconsider its original rejection of Washington’s proposed 2016 HHC standards are happy to see the change, the Washington Department of Ecology (Ecology) has already spoken out against the decision.

Laura Watson, the Director of Ecology, said that this EPA decision “flies in the face” of both state and tribal wishes to maintain the stricter standards. Director Watson also noted that Washington has already challenged this action in court, teeing up a continued fight.

Additionally, Washington objects to this change given that the 2016 EPA HHC standards had been in effect for several years. Ecology, along with local governments, have worked with industry and the tribes in that time to try and implement regulations and to provide flexibility where needed. Washington finds EPA’s change illegal and has already sued on this issue.

Takeaways

Even though EPA’s announcement seems to indicate the matter is closed and that Washington’s proposed 2016 HHC water quality standards will take effect, clarity is elusive. With the Washington v. EPA lawsuit still pending, and Ecology making clear that state and tribal interests object to this change, the fighting will inevitably continue. Until the lawsuit plays out, a question remains over which standards will be enforced and applied within Washington State.

For parties looking to comply and avoid enforcement action, all but two of Washington’s proposed 2016 HHC are now the legally enforceable standards. However, that could change depending on Washington’s action and the outcome of any lawsuit. The safest bet may be to continue to apply the stricter Obama Administration EPA HHC standards until the conflict clears.

Beveridge & Diamond’s Water practice group develops creative, strategically tailored solutions to challenges that arise under the nation’s water laws. The firm’s attorneys have represented clients in a range of industries in project planning as well as in litigation and enforcement proceedings on issues arising from the growing convergence of water supply, use, and quality issues. For more information, please contact the authors.