Does Washington’s slow pace of cleaning polluted waterways violate the Clean Water Act?

Oct. 6--Two decades ago, a small environmental group reached a lawsuit settlement with the federal Environmental Protection Agency that launched a major new effort to tackle water pollution in Washington state.

Under the 1998 agreement, the state Department of Ecology had to develop cleanup plans for nearly 1,600 bodies of water, from the Puget Sound to the Palouse River that winds through the state's wheat country, with the EPA overseeing work called for by the federal Clean Water Act.

The group -- Northwest Environmental Advocates -- is now back in U.S. District Court, alleging that federal and state officials have moved too slowly, and that they violated federal law by failing to get the plans done by a 2013 deadline.

The high-stakes move is intended to quicken the pace of cleanups that have often been contentious, in part, because of the cost of reducing discharges. Northwest Environmental Advocates' action agenda includes tougher regulation of discharges from municipal sewage-treatment plants into Puget Sound, which could add billions of dollars in costs. Just in King County, the costs of such regulation to remove nutrients, such as nitrogen, that can cause excessive algae growth, could run $3 billion over 20 years for the West Point and South plants, according to a 2010 estimate.

The return to court comes in a year when state Attorney General Bob Ferguson has repeatedly filed lawsuits challenging the Trump administration's attempts to weaken environmental regulation. It offers a different perspective on what's gone wrong with the cleanup of Washington waterways -- alleging a joint failure over many years by the EPA and the state Ecology Department to comply with federal law.

"You've got a lot of foot-dragging. They push a lot of paper ... but when it comes down to doing anything about pollution controls, they (Ecology) slow walk it," said Nina Bell, executive director of Northwest Environmental Advocates. "And the EPA is unwilling to step in when the state fails. That is why we turn to the federal courts."

Mark McIntyre, an EPA spokesman based in Seattle, declined to comment on the Northwest Environmental Advocates' court filings.

State Ecology officials say they remain in compliance with the federal Clean Water Act, and continue to work hard on reducing water pollution. They say that, in recent years, they have tried new approaches approved by the EPA to get the job done more quickly.

'The end game is the same. How we get there is different,' said Heather Bartlett, water-quality manager for the Ecology department.

Late plans, cost questions

The 1998 settlement was a turning point for how Washington state would handle its responsibilities under the federal Clean Water Act. Once it was in place, the Legislature increased state Department of Ecology funding to develop cleanup plans across the state.

"Absolutely, this got the work started," said Mindy Roberts, a former Ecology enviromental engineer now with the Washington Environmental Council.

The plans cover lakes, creeks, rivers and portions of Puget Sound, assessing different types of pollution and the reductions needed to meet water-quality standards. They can be used by state regulators to set limits in discharge permits the state issues to operations such as food-processing plants, pulp mills and shipyards.

The Northwest Environmental Advocates' motion filed Sept. 24 in U.S. District Court in Seattle calls out the EPA and the state Ecology Department for not completing enough of the work: Plans for more than 540 water bodies were supposed to be done by 2013 but are still incomplete. The group then filed a separate lawsuit to force the EPA to set a timetable for completing cleanup plans for some 4,000 other stretches of state waters identified as polluted.

Bell said such plans are needed so state regulators have the leverage to get polluters to reduce pollution. But state officials say the plans may not always be the best way to get a cleanup done, and in recent years they have tried other approaches.

The problems they have encountered include the time it takes to complete plans for waterways with complex pollution problems, and lawsuits that put them in limbo for years.

"They can be very contentious. They work great when you only have just a point (pollution) source or two. When you have many, it's expensive ... and may not get implemented," said Ecology's Bartlett.

Roberts, the former Ecology official, said the 1998 settlement sometimes prompted a focus on easy-to-identify sources of pollution -- and postponement of harder -- yet important -- work to identify and reduce other pollutants such as toxic discharges.

Sewage plants: a major target

In the clash between Northwest Environmental Advocates and the state, one big point of contention has been the regulation of sewage-treatment plants that discharge nutrients into Puget Sound.

Just last year, the group petitioned the state to increase regulation of these discharges, but the effort was rejected by the Ecology Department and Gov. Jay Inslee. The new round of federal regulation -- if successful -- could step up pressure on Ecology to more quickly reduce the nutrient flows from the nearly 70 wastewater-treatment plants that discharge into Puget Sound.

These Puget Sound plants account for at least half of the human-caused releases of nitrogen, a pollutant that promotes the growth of algae, especially in the summer. As the algae dies, it can create shortages of dissolved oxygen, which can stress fish and other marine life.

The cost of cutting this pollution is uncertain, and could vary greatly from plant to plant. It also would depend on what technology is used, the scope of reductions and how many months of the year it's needed. The $3 billion estimate for the two King County plants reflected capital, operating and maintenance costs that would be required to cut the nutrient discharges.

So far, the Ecology department regulators have put a nitrogen-reduction requirement in the permit of just one Olympia sewage-treatment plant.

"What's missing in Washington state is the political will to do something more constructive than continuing studies and having meetings," Bell said.

State officials say it has taken sophisticated modeling to better understand the pollution impacts of nutrients from sewage-treatment plants. They needed that information to make the case that additional regulation was justified, and they are now moving ahead.

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Earlier this year, the Ecology Department proposed crafting a single overarching general permit to regulate nitrogen and other nutrients released by the wastewater treatment plants that discharge into Puget Sound. It would first cap nutrient discharges at current levels, and later call for further restrictions. This would happen with -- or possibly without -- the completion of overall cleanup plans.

State officials note that a general permit has been used elsewhere, such as in Virginia, where sewage-treatment plants have cut nitrogen discharges into Chesapeake Bay.

"What we are trying to do is get out ahead of the curve, and get on-the-ground action more quickly," said Ecology's Bartlett.

Bell has been a critic of that approach. She notes that Virginia already had a law to reduce nitrogen in Chesapeake Bay; Washington does not have a similar law relating to Puget Sound.

And Virginia cut pollution on a quicker timetable than one proposed by Ecology, which would not begin to reduce nitrogen discharges at some plants for at least another 15 years.

"This is very wishy-washy," Bell said.

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