Water Quality Standards for Surface Waters of the State of Washington - Changes in existing rules proposed by state Department of Ecology; public hearings in progress

Items in blue are quoted from WA State Department of Ecology documents.


by Sue Forde, Citizen Review Online

The Washington State Department of Ecology (DOE) is in the process of holding public hearings for changes it wants to make in water quality rules and regulations. A hearing is set for Port Angeles on Feb. 5th (see information at the end of this article or Hearing Dates Set). A couple of the changes to be made include moving from the current class-based system to a use-based system for designating beneficial uses of waters ; and making changes to criteria (for example temperature and bacteria) for designated uses of the waters. You can read the proposed rules and the other documents regarding them here: Water Quality Standards for Surface Waters of the State of Washington

The reason given by DOE for supporting the rule changes are "… to incorporate new science, provide more detail and clarity on implementing the regulations, and better tailor the criteria assigned to our waters to the characteristic uses that actually exist in those waters."

The rules will affect everyone in the state, as the "waters of the state", according to the definitions given, include ALL surface waters. "Surface waters of the state" includes lakes, rivers, ponds, streams, inland waters, saltwaters, wetlands and all other surface waters and water courses within the jurisdiction of the state of Washington.

The proposed amendments to Chapter 173-201A WAC change the water quality standards for all of the surface waters in Washington. (Small Bus. Econ. Impact Statement, DOE, 12/19/02)

The proposed rules go beyond the requirements of the federal government.

WA's proposal is stricter than 2002 EPA Draft Revision of the Federal Guidance on Bacteria (Small Bus. Econ. Impact Statement, DOE, 12/19/02)

The plan must ensure compliance with all applicable water quality criteria, as well as any other requirements established by the department (such as through a total maximum daily load, or TMDL, analysis). (pg. 57)

The TMDL rule is being revoked by the EPA. According to an EPA press release in Dec. 2002, the 2000 rule was determined to be unworkable based on reasons described by thousands of comments and was challenged in court by some two dozen parties.

In a statement before the Senate on March 1, 2000, Montana Governor Marc Racicot stated the problem with the EPA rules. He said, "…the rules create a presumption that a state's entire TMDL [Total Maximum Daily Load] program, including its process and methodology of identifying impaired waters, prioritizing those waters, developing TMDLs for those waters, and addressing nonpoint sources in its TMDL process, are all subject to EPA's approval.

Modeling used

Compliance shall be determined by monitoring data or calibrated models approved by the department utilizing representative dilution ratios. (pg 46) - When evaluating compliance with the plan, the department will allow the use of models and engineering estimates to approximate design success in meeting the standards. (pg. 57)

Modeling is considered by many scientists as an "unscientific" method of arriving at conclusions. University of Auckland climate scientist Chris de Freitas, stated that global warming results are…" pure speculation - a result based on computer modelling, and they are not proof of anything."

Modeling. Many try to use computer-based mathematical modeling to predict how systems will react under various conditions. Depending on the complexity of the system, modeling may work to some degree. The problem, however, is that some modelers think they can model anything, regardless of complexity. The best ongoing example of modeling gone awry is global climate change. Systems like global climate, ecosystems and higher-order living organisms (like humans) are probably too complex to be represented by mathematical equations.

In a newspaper report of 4/7/02, a consultant for Pacific County, WA, discovered the computer model Ecology used to create the draft inflated salinity in Willapa Bay by a factor of 1,000. While the bay does have pollution problems, they're not as bad as Ecology first estimated.

Ecology officials revised the model and started a new draft report, work that continues today. They thought the problem had been neatly solved.

Human activities seem to be the focus of the harsher rules. The Department of Ecology has the power to determine when or whether human activities or human land use is creating problems. No consideration is given to wild animals, birds - particularly ducks - weather, adverse effects on salmon by sea lions, or tribal net-fishing. The goal seems to be to return the "watershed" to pre-human condition.

"Actions" refers broadly to any human projects or activities. (pg 3)

"Natural conditions" or "natural background levels" means surface water quality that was present before any human-caused pollution. When estimating natural conditions in the headwaters of a disturbed watershed it may be necessary to use the less disturbed conditions of a neighboring or similar watershed as a reference condition. (See also WAC 173-201A-260(2)) (pg 6)

"New or expanded actions" mean human actions that occur for the first time, or human actions that are modified after July 1, 2003, for the purpose of applying the antidegradation section in WAC 173-201A-320. (pg. 6)

Salmon, Steelhead, and Trout Rearing-Only pH shall be within the range of 6.5 to 8.5 with a
human-caused variation within the above range of less than 0.5 units.
(pg. 22)

(c) Runoff from nonpoint sources (such as from animal and human wastes or soil erosion from land-use activities) are not allowed to drain or be discharged into surface waterbodies of the state, except when controlled with best management practices or treated with waste treatment technology, as approved by the department.

"The purpose of the antidegradation policy is to:… (3) Apply to human activities that are likely to have an impact on the water quality of a surface water; (4) Assure that human activities that are likely to contribute to a lowering of water quality, at a minimum, apply all known, available, and reasonable methods of prevention, control, and treatment (AKART)…"

"Where water quality criteria are not met due to natural conditions, human actions are not allowed to further lower the water quality, except where explicitly allowed in this chapter." (pg. 39)

To be eligible for designation as an outstanding resource water in Washington, one or more of the following must apply:… The water is in a relatively pristine condition (largely absent human sources of degradation) or possesses exceptional water quality, and also occurs in federal and state parks, monuments, preserves, wildlife refuges, wilderness areas, marine sanctuaries, estuarine research reserves, or wild and scenic rivers; (pg. 43)

Temperature shall not exceed 20.0°C due to human activities. This covers rivers, WRIAs, and other water bodies. (pg 81)

Nonpoint source pollution pointed out as the source of unknown pollutions. It "must" come primarily from humans, according to the tone of the wording.

"Nonpoint source" means pollution that enters any waters of the state from any dispersed landbased or water-based activities, including but not limited to atmospheric deposition, surface water runoff from agricultural lands, urban areas, or forest lands, subsurface or underground sources, or discharges from boats or marine vessels not otherwise regulated under the National Pollutant Discharge Elimination System program.

"Pollution" means such contamination, or other alteration of the physical, chemical, or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to the public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

The alternative: Set aside your lands with buffers, use government programs.

Irrigation Ditches are of special interest. "Irrigation ditch" means that portion of a designed and constructed conveyance system that serves the purpose of transporting irrigation water from its supply source to its place of use; this may include natural water courses or channels incorporated in the system design, but does not include the area adjacent to the water course or channel.

Effects on Agriculture

Timber and agricultural activities may affect stream temperature by removing cover. However, the practices that currently protect for water temperature and therefore dissolved oxygen should be so similar under the two versions of the rule that there would not be a measurable difference. (from http://slc.leg.wa.gov/wsr/2003/01/03-01-124.htm)
Agricultural water supplies [173-201A-200(3)(b)]: The proposed rules would set standards to protect the quality of water diverted for agriculture. This would mean additional criteria would be applied to all water bodies where agricultural water supply is a beneficial use. Since use of waters for irrigated agriculture is widespread, the proposed criteria will be broadly applied to rivers, lakes, and reservoirs throughout the state. . (Small Bus. Econ. Impact Statement, DOE, 12/19/02)

According to the Washington Farm Bureau, the proposed rule goes against the recommendations contained in the Competitiveness Council's report, which was to streamline regulations, and was not a recommendation to add more onerous environmental regulations. "Agriculture has a $5.6 billion farmgate value in Washington that translates into more than $28 billion in economic impact. The proposed rules change the emphasis "use-based", which places fish ahead of farmers….Washington farmers and ranchers cannot withstand one more regulatory hit and be able to stay competitive nationally or internationally. It I time for the state to stop promulgating rules that are beyond the federal standard, that are not based on best available science, and do not follow the Regulatory Fairness Act." (from WA Farm Bureau comments on proposed Water Quality Standands for Washington State, 1/31/03)

(The Farm Bureau has issued comments on the proposed changes. Click here. )

The entire rule is impacted by this amendment due to reorganization and clarification with the rule. The rule is now organized into parts to assist the user in finding information more easily. Further, the standards are proposed to be implemented by a use based system rather than a class system. Changes are being proposed to existing criteria for temperature, dissolved oxygen, bacteria, and ammonia, as well as new criteria for agricultural water supplies. The antidegradation section, designed to prevent degradation of water quality, was expanded and clarified. A tools part was added to the rule to provide users with a variety of "tools" that can be used to comply with this regulation. (Proposed rulemaking document CR-102)

Stormwater Management Plans

Stormwater management plans have been incorporated by reference into the rule changes. The changes incorporate stormwater management manuals for "best practices". "Best management practices" are those approved by the DOE.

"Storm water" means that portion of precipitation that does not naturally percolate into the ground or evaporate, but flows via overland flow, interflow, pipes, and other features of a storm water drainage system into a defined surface water body, or a constructed infiltration facility.

The DOE's stormwater management manual model is not presently required to be implemented in county or city's ordinances. In fact, a number of cities, including Port Angeles, have determined they do not want the 1,033-page rulebook to apply to them; and DOE has assured that it is not "required" to implement it. These proposed rules point to an "out" of rigid compliance provided the entities are already in a stormwater management plan.

From http://slc.leg.wa.gov/wsr/2003/01/03-01-124.htm - "The mechanism used to meet the permit limit is chosen by business and not prescribed by ecology. Ecology can not predict the options a business might choose. The determination that there will be a disproportionate impact is therefore based on a worst case analysis. Because of the uncertainties described above, ecology estimated costs based on the most expensive management practices to meet the criteria changes and has assumed these activities are occurring on waterbodies that do not have additional assimilative capacity. It is not possible to know the average impact of the rule. Ecology modeled worst case impacts for permitted facilities. The modeled impact was disproportionate.

Ecology does not expect that nonpoint best management practices will be affected by the change in the standards. Business related stormwater may affect water quality. However, ecology's expectation is that the proposed changes to the standard will not require any substantive changes in currently accepted stormwater practices because current practices represent the best available methods for managing urban stormwater. (The DOE's 'model stormwater management plan, consisting of 1,033 pages of rules and regulations.)

"AKART" is an acronym for "all known, available, and reasonable methods of prevention, control, and treatment." AKART shall represent the most current methodology that can be reasonably required for preventing, controlling, or abating the pollutants associated with a discharge. The concept of AKART applies to both point and nonpoint sources of pollution. The term "best management practices," typically applied to nonpoint source pollution controls is considered a subset of the AKART requirement. "The Stormwater Management Manual for the Puget Sound Basin" (1992), Stormwater management manuals may be used as a guideline, to the extent appropriate, for developing best management practices to apply AKART for storm water discharges.

The Economic Effect

The majority of businesses will not be affected because activities under the current standards would be sufficient to comply with the proposed revisions. However, for any waterbody reaches affected by the proposed changes, and for which no variance, flexibility, or offset is possible, the proposed amendments would have a disproportionate impact on small business. Cost minimizing features have been provided in the rule.

The proposed amendments to the Water Quality Standards for Surface Waters have been reviewed, based on a worst case scenario (greatest potential economic impact). Based on this approach, the proposal will have a disproportionate impact on affected small businesses.

In the "worst case" scenario as set forth by DOE, the cost per employee for a small business would be $40,000 over 15 years; for a large business, it would cost $9,600 for the same period. (For a small business, that $2,666.66 per year per employee additional cost - or $222.22 per month!) This does not take into consideration the cost of extra paperwork, fines for noncompliance, or the cost of capital improvements which may be necessary to comply.

Unfunded mandates.

In essence, the 303(d) rules are an "unfunded" mandate by a federal agency that may have exceeded its authority as granted by Congress. The same often holds true with the Washington State Department of Ecology, as several newspaper articles have noted. [13]

The next hearings are set for:

Port Angeles Wed., Feb. 5, 2003
Vern Burton Center
308 East St.

Vancouver, Thurs., Feb. 6, 2003
Water Resources Center
4600 SE Columbia

Additional reading:
For more about Stormwater, click here

For more about 'junk science', click here


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