OLYMPIA — Attorney General Bob Ferguson filed a lawsuit June 7, 2019 in U.S. District Court for the Western District of Washington challenging the Environmental Protection Agency’s decision to revise Washington’s water quality standards. These standards, which apply specifically to Washington, are used to determine how clean the state’s waters must be in order to protect human health.
Revising the standards now, the lawsuit argues, would create confusion and disrupt the work Washington has already completed to meet the standards. The revision is a violation of the Clean Water Act, which only allows the EPA to revise an existing standard if the standard is not stringent enough — which is not the case with Washington’s existing standards.
“Clean water is essential to our quality of life,” Ferguson said. “Trump’s EPA cannot change important water quality protections at the whim of industry interests. It’s not only disruptive to Washington’s environmental efforts over the past two years, it’s a clear violation of the Clean Water Act. We keep beating the Trump Administration in court, and we haven’t lost yet. I don’t plan on starting now.”
“The Clean Water Act is crystal clear on when it’s appropriate to change water quality standards in a state, and how it must be done,” said Washington Department of Ecology Director Maia Bellon. “The Environmental Protection Agency has blatantly ignored this federal law. We won’t sit back while EPA unilaterally acts on short-sighted industry desires, completely cutting out the state regulator, Washington’s tribes and our communities.”
In 2016, the Washington Department of Ecology proposed updates to a portion of state water quality standards that establish limits on a range of nearly 200 pollutants dangerous to human health, such as arsenic, asbestos, mercury and lead. The Environmental Protection Agency revised the proposal, and Washington began the labor-intensive process of implementing the standards.
These standards are intended to minimize the risk of cancer caused by consuming fish, shellfish and untreated water from state waterways. The pollutant limits are calculated with an equation that factors in, among other things, how much fish or untreated water a Washingtonian might consume from state waters.
In February 2017, an industry group sent a “petition” requesting the EPA reconsider the rule. The industry group did not file a challenge in court, the proper way to challenge federal agency decisions. In May of this year, more than two years later, EPA announced its decision to grant the industry group’s request and revise Washington’s water quality standards without any evidence that the existing standards are insufficient.
Despite a meticulous revision process outlined in the Clean Water Act, the EPA claimed in its decision it has “inherent authority” to make unilateral changes to its decisions. Ferguson's lawsuit argues that there is no legal basis for the change. The reversal violates the Clean Water Act, which requires the federal government to follow legally required procedures and find that the change is more stringent than existing standards.
Both Ferguson and Bellon wrote letters to the EPA opposing the revision. The federal government did not respond to these letters, nor did the EPA consult with Bellon, Ferguson or tribal governments regarding the changes. The federal government also decided not to seek public comment.
Since the adoption of the current standards, Ecology has worked with businesses and municipalities to implement the new standards. Reversing course on the standards now would cause unnecessary confusion for businesses and government agencies, and invalidate an implementation process that is already two and a half years down the road.
For example, reconsidering the rule creates uncertainty in Ecology’s permitting process. Any entity that releases pollutants into state waters, from municipal wastewater treatment facilities to industrial plants, must receive a permit from Ecology. These permits help ensure that governments and businesses are complying with the standards. Many permit applications are currently pending. Without predictability and certainty, Washington’s businesses and the state are left in limbo.
Ferguson’s lawsuit asks the court to block the EPA from revising the standards.
Senior Counsel Ron Lavigne and Senior Assistant Attorney General Laura Watson with the Ecology Division are leading the case.
Ferguson has now filed 39 lawsuits against the Trump Administration and has not lost a case. Ferguson has 22 legal victories against the federal government since President Trump assumed office. Twelve of those cases are finished and cannot be appealed. The Trump Administration has appealed or may appeal the other 10, which include lawsuits involving Dreamers and 3D-printed guns. Of the 22 victories, 13 are related to the environment and six are from cases that specifically challenge actions by President Trump’s EPA.