PUBLIC
INTEREST FACT SHEET
Department
of Ecology's
Proposed
Water Quality Standards
- January
28, 2003
Introduction
The
Department of Ecology proposes to amend Washington's water
quality standards, which are set forth in Chapter 173-201A
of the Washington Administrative Code. These standards are
the foundation of water quality protection for Washington's
rivers, wetlands and marine waters, providing baseline
criteria for water quality permits (such as NPDES permits
and 401 Certifications) and clean-up plans (such as TMDLs
and Superfund cleanups). The proposed amendments will
significantly lessen the protections afforded to
Washington's rivers and streams. This fact sheet explains
the proposed changes in general terms.
The
Department of Ecology will hold eight workshop/hearings
around the state between January 27 and February 6, 2003.
Written comments must be submitted by March 7, 2003. More
information can be found on the web at
www.ecy.wa.gov/programs/wq/swqs or by calling
360-407-6414.
1.
The Change from a Class-Based to Use-Based
System
Under
the existing water quality standards, Washington's surface
waters are protected through a system that classifies every
river and stream as Class AA, A, B, or C. Depending on the
classification, each river is protected for different uses.
For example, the Class AA category requires that water
quality in all Class AA rivers and streams "markedly and
uniformly" exceed the requirements for all protected uses,
which include:
- Domestic
and other water supply
- Salmonid
and other fish migration, rearing, spawning and
harvesting
- Wildlife
habitat
- Recreation
(e.g., swimming, boating, fishing and aesthetic
enjoyment)
- Commerce
and navigation
Under
the proposed amendments, the classification system is
abolished and replaced with a use-based system. Under these
standards, rivers would be protected depending on what they
are actually used for. This might include:
Salmon,
steelhead and trout spawning and rearing (the amendments
assume that if water quality is adequate for salmonids, then
it will be adequate for all other fish species and life
stages).
- Primary
human water contact
- Domestic,
industrial and agricultural water supply
- Wildlife,
commerce & navigation, and fish
harvesting
As
discussed below, the change from a classification system to
use designations is not simply a matter of semantics. The
proposed standards would eliminate general protections
afforded by the classification system. The proposed
standards would also eliminate protection for the specific
categories of recreation and salmon migration.
2.
What is Gained, What is Lost
A.
Loss of the "narrative" system
The
existing water quality standards provide two types of
protection for Washington's water bodies: (1) specific
numeric criteria relating to physical and chemical
parameters and (2) general narrative protections relating to
their classification. While the proposed rules retain the
numeric criteria, they eliminate the more general narrative
protections afforded under the existing rules.
With
respect to numeric criteria, the existing and proposed
versions both contain standards that govern specific
physical and chemical parameters, such as temperature, pH,
and allowable concentrations of toxic metals. Whether any
given criterion increases or decreases under the proposed
rule depends on (1) the amendments to that specific
criterion and (2) the uses made of the water body in
question. For example, under the existing temperature
standard, all Class AA waters may not exceed 16°C.
Under the proposed standards, temperature may range from
13°C to 20°C, depending on what kind of fish
inhabit the stream in question. This fact sheet does not
address the implications of these technical
changes.
The
greater and more certain loss of protection occurs in the
elimination of the narrative classification system. As an
example, under the existing rules, salmon are protected in
general and through the numeric criteria for temperature,
metals, etc. Under the proposed rule, the general protection
is eliminated.
In
the last decade, state and federal courts have held that the
narrative classification system affords strong environmental
protections to Washington's rivers. Of particular
importance, the courts have held that water quantity and
water quality are linked, and that the water quality
standards require that enough water be flowing in our rivers
to support the general uses set forth in the classification
system. This critical protection would be severely
undermined by the proposed rules.
In
sum, under the proposed amendments, if a water quality
problem falls outside the numeric criteria, then it is not
covered under the proposed regulations. The general
narrative requirement that water quality be adequate to
support each classification would be eliminated.
B.
Elimination of recreation & salmon migration as
protected uses.
A
second problem involves the proposed elimination of two
specifically protected categories: salmon migration and
recreational use (i.e., boating, fishing and aesthetic
enjoyment). Recreational use is partially addressed by the
proposed "primary water contact" standard. But the general
narrative requirement that water quality be adequate to
support boating, sport fishing and aesthetic enjoyment would
be eliminated.
Not
surprisingly, the elimination of these two specific
categories would aid in elimination of the state's duty to
protect instream flows. Recreational use of rivers is often
dependent upon adequate flows. Similarly, salmon need
adequate flow to facilitate adult migration to spawning
grounds and out-migration of juvenile fish to the
ocean.
C.
The significance of the amendments
Rivers
throughout Washington are suffering because they do not have
enough water in them. This harms the ability of Washington's
citizens and visitors to use public waters for recreational
purposes. It also affects the ability of our rivers to
support migrating salmon. Thus, the protections afforded by
the general narrative criteria, and the recreation and
salmon migration classifications in particular, are
important for overall water quality protection.
3.
The Anti-Degradation Standard
A
second major amendment would alter the anti-degradation
standard. As presently written, anti-degradation means that
"existing uses shall be maintained and protected and no
further degradation which would interfere with or become
injurious to existing uses shall be allowed." In other
words, if water quality in a stream is better than what the
current standards require, it cannot be degraded to the
"lowest common denominator." The anti-degradation standard
provides the single strongest protection of Washington's
waters, and has been pivotal in court decisions that link
water quantity and water quality.
The
proposed anti-degradation standard creates three categories
of waters: Tier I, Tier II, and Tier III (also called
"Outstanding Resource Waters" (ORW)). This new system raises
at least two major implementation issues. First, designation
of Tier III/ORW waters is initially based on objective
factors, but then requires local public support prior to
designation. It will be very easy for would-be water
polluters to politicize the process and block ORW
designation.
Second,
Tier II waters, which are in better condition than what the
standards require, can be degraded if it is in the
"overriding public interest" to allow such. This "overriding
public interest" exception is but one of a suite of new
procedures by which a polluter can obtain a variance from
the standards (see "Loopholes" section below).
4.
Loopholes
The
proposed amendments set forth five new or expanded methods
by which a polluter may obtain exemptions from the
standards. It can be expected that polluters, particularly
large polluters, will focus on obtaining one or more of
these exemptions rather than undertake efforts to reduce
their pollution and comply with the standards.
- Overriding
public interest allows high-level water quality to be
measurably reduced based on economic factors. The
proposed rules explicitly make this exception available
for pollution discharge permits and 401 water quality
certifications that govern federal projects
- Short-term
modifications allow temporary reduction of water quality
conditions for "long-term operations" up to 5 years (and
renewable)
- Variances
allow a 5-year hiatus (renewable) from the standards if
"reasonable progress" is being made towards
compliance.
- Site-specific
criteria allow suspension of the standards when the
stream cannot attain them due in whole or part to "human
changes."
- Use
attainability analysis allows a polluter to petition to
eliminate one or more of the already-limited uses of
streams
5.
On a Positive Note
- All
nonpoint source runoff (irrigated agriculture,
stormwater) must be controlled by BMPs or other treatment
technology. If a polluter uses BMPs, they must still
comply with the standards. As always, implementation will
be key.
- Water
Quality Offsets &endash; a pollution trading program with
fairly strict requirements (the offsets must be targeted,
documented, account for uncertainty, include a margin of
safety, and result in "net environmental benefit"). On
the downside, offsets may be used to override the water
quality criteria.
- The
temperature standard improves for streams inhabited by
bull trout.
6.
Conclusion
In
sum, the proposed changes to Washington's water quality
standards, Ch. 173-201A WAC, would result in lesser
protection for fisheries and recreational uses of
Washington's rivers and streams. They would also result in
creation of a variety of exemptions and loopholes through
which polluters could avoid compliance with the standards
altogether.
|