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EPA May Have Tipped Hand on Weakening Washington Water Rule

April 12, 2019, 11:12 PM

The Environmental Protection Agency erroneously published a proposal that would make changes to Washington state’s clean water rule, raising the alarm of the state’s top environmental official and several conservation groups.

The agency recently issued—and this week retracted—a request to make changes to how it classifies water quality in the state.

Specifically, it announced an effort to change a standard set during the Obama administration of the state’s human health criteria for water, often referred to as the “fish consumption rule” since it is designed to result in water quality so healthy people can safely eat locally caught fish.

The request authorized the posting of documents to be open for public comment from April 8 to May 8, according to a memorandum posted on the Regulations.gov web site that Bloomberg Environment downloaded before it was removed.

“Today, the Washington Department of Ecology is notifying the public that it appears the U.S. Environmental Protection Agency (EPA) is proposing to reverse the clean water rule in Washington state,” the state announced in a statement April 10. “EPA’s 30-day comment period began April 8, 2019, without notification to Ecology, tribes, or the public.”

Then, on April 11, the EPA memo was replaced with another stating the authorization to publish it was given erroneously. The EPA has not published any documents for public comment, the site said, and the docket under “Revision of Certain Federal Water Quality Criteria Applicable to Washington” should not have been opened.

An EPA official in Washington, D.C., confirmed April 12 the docket should not have been opened and is now closed.

Still Deliberating

The EPA is still deliberating on Washington state’s water quality standards and hasn’t made a decision on their fate yet, the official told Bloomberg Environment. The official would not say whether the agency plans to propose changes to Washington’s water quality standards in the near future.

But state officials and environmentalists said they were concerned the memo accidentally released could portend that the Trump administration is trying to dismantle standards that ensure clean water and public health.

“If this is something they are going to do, the department is very concerned,” said Ty Keltner, spokesman for the Washington Department of Ecology.

In November 2016, the EPA under President Barack Obama issued water quality standards for Washington state to address multiple toxics, including mercury, arsenic, polychlorinated biphenyls (PCBs), lead, and various industrial chemicals, including known carcinogens. The standards are based on exposure of people to toxic chemicals through consumption of locally caught fish and include an assumed fish consumption rate of 175 grams per day and a cancer risk rate of one in 1,000,000, according to Earthjustice and five other environmental groups.

Old Data

Before that time, Washington standards were based on 40-year-old data, and the state’s criteria for water quality were among the weakest in the country, the groups said.

Maia Bellon, director of the Department of Ecology, issued a statement April 10 saying that any action EPA takes to reverse the current clean water rule will result in costly litigation.

“It is unnecessary and counterproductive to create this atmosphere of regulatory uncertainty—we already have a path forward that will lead to protective and practical clean water permits,” she said.

The agency’s erroneous posting of the memorandum reveals “the agency is not following its internal processes, or the law,” said Chris Wilke, executive director of the environmental group Puget Soundkeeper.

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Susan Bruninga at sbruninga@bloombergenvironment.com

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