On February 26, in a reprise of its partially successful assault on Oregon water quality standards, Northwest Environmental Advocates sent a Notice of Intent to Sue EPA for alleged violations of the Clean Water Act and Endangered Species Act. The alleged violations relate to EPA approval or inaction on water quality standards promulgated by the Washington Department of Ecology, and EPA’s alleged failure to properly consult with the National Marine Fisheries Service and U. S. Fish and Wildlife Service.
NEA brought a similar action against EPA and the fisheries Services, which I reported on in a blog post a year ago. In that case, a federal judge upheld Oregon’s numeric water quality standards, refusing to second guess EPA’s technical judgment that they are protective of aquatic life, despite evidence presented by NEA to the contrary. The judge, however, struck down Oregon narrative standards. The court found that the narrative Natural Conditions Criteria in particular “supplanted” numeric standards by providing an exemption when water temperatures naturally exceed the standard. The court found that Oregon had substituted current conditions, which reflect many thermal influences, for natural conditions. The judge also found the fisheries Services’ analysis wanting and required them to reexamine the effect of the Oregon standards on fisheries.
The current NEA challenge lists a number of deficiencies. EPA allegedly failed to take action on Washington water quality standards relating to allowable temperature increases from non-point sources; exemptions from turbidity criteria; allowance of short-term modifications; exemptions based on shellfish harvest determinations; averaging periods for bacteria; mixing zones and thermal plumes; temporary and permanent loss of existing uses; allowance of compliance schedules for dams; water quality offsets; and elements of the antidegradation policy. EPA is also alleged to have failed in its consulting obligations with the federal fisheries Services.
Some of the standards under attack include narrative standards. Such standards are widely used by state environmental protection agencies to account for real world conditions when crafting discharge permits or taking enforcement action. Oregon still has not fully determined the effect that losing its narrative standards will have on its regulatory program. No doubt Washington has similar concerns.
