The State of Washington Sues EPA to Challenge EPA’s Approval of Washington’s Own Human Health Criteria

On June 6, the State of Washington sued EPA in federal court to stop EPA from approving Washington’s own water quality standards.  This is the latest installment in a multiyear battle over whether Washington’s water quality criteria for the protection of human health are sufficiently protective, particularly of groups who are at higher risk because they consume larger amounts of fish than the general population.

The federal Clean Water Act requires states to adopt and obtain EPA approval of water quality standards for surface waters, including water quality criteria for toxic pollutants to protect human consumption of water and fish.  After years of debate, the Washington Department of Ecology in 2016 adopted new and revised water quality criteria for the protection of human health.  EPA, however, disapproved many of those criteria in the waning days of the Obama Administration because EPA determined that they were insufficiently protective.  At the same time, EPA adopted by rule more stringent federal criteria to supersede Washington’s disapproved criteria.

Soon after the Trump Administration took office, industry groups in Washington, including the Northwest Pulp & Paper Association, Association of Washington Business, and Washington Farm Bureau, petitioned EPA to reconsider its disapproval of Ecology’s human health criteria and to repeal the more stringent criteria that EPA had adopted.  In response, and citing its inherent authority to reconsider its decisions, EPA in May 2019 reversed itself and approved all the state criteria that it had previously disapproved, with the exception of two criteria for arsenic.  EPA also stated that it would initiate a rulemaking process to withdraw EPA’s more stringent human health criteria for Washington.  This action is in line with EPA’s new policy, issued on June 3, 2019, to give more deference to states and tribes when reviewing their water quality standards and other submissions for approval under the Clean Water Act.  (The new policy is available here.)

The State’s lawsuit argues that EPA lacks authority, inherent or otherwise, to approve Washington’s human health criteria now, more than two years after EPA disapproved them.  The State asserts that it is “successfully implementing” the more stringent federal criteria and that changing the criteria would “only create regulatory uncertainty and confusion.”  The lawsuit, however, puts the State in the awkward position of opposing EPA’s approval of criteria that Ecology itself adopted in 2016—and has not repealed—while supporting EPA’s criteria. In addition, there is some chance that the court could dismiss the lawsuit as premature because EPA, although it has approved Ecology’s less stringent criteria, has not yet adopted a rule repealing EPA’s more stringent criteria.  Until and unless EPA does that, the more stringent federal criteria will remain the legally effective criteria in Washington for all Clean Water Act purposes, including wastewater discharge permits issued to municipalities and industries under the Act.

If you have questions, please contact Veronica Keithley or Michael Campbell.