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Title: Washington Water Quality, Fact Sheet
Author: Rachael Paschal Osborn
Date: January 28,2003 | ID#: 030128
Category: Water Law and Policy
Keywords:Washington Administrative Code, water quality standards, beneficial use, boating, salmon, anti-degradation standard, outstanding resource waters, nonpoint pollution, agricultural runoff

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Department of Ecology's

Proposed Water Quality Standards

January 28, 2003



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.