1. INTRODUCTION

The objective of the Clean Water Act is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Its goals are eliminating the discharge of pollutants into the navigable waters of the United States, wherever possible the attainment of water quality which provides for the protection and propagation of fish, shellfish and wildlife, and recreation, and prohibiting the discharge of toxic pollutants in toxic amounts. 33 U.S.C. § 1251(a)(1), (2) and (3). Those are lofty goals. Congress said the goals should be met through control of both point and non-point sources of pollution. 33 U.S.C. § 1251(a)(7). But, while it created federal control of point sources, it left control of non-point sources to the states.

To achieve those goals, the Clean Water Act has a legal structure that the Ninth Circuit Court of Appeals describes as "replete with multiple listing and planning requirements applicable to the same waterways (quite confusingly so, indeed)." Pronsolinov. Nastri, 291 F.3d 1123, 1138 (9th Cir. 2002). As is so often the case, stating the goal and achieving it are two different things. With the Clean Water Act it often seems that the more problems get solved, the more new problems are revealed and the harder and more complicated solving them turns out to be.

The conundrum of how the regulatory maze of the Act can lead to accomplishing its goals comes at least in part from the fact that achieving the goals has been and remains a process – a journey. The first version of the Clean Water Act was adopted in 1948. Originally the concept was that the goals could be achieved through encouraging state planning and federal funding of water quality projects. By 1972, when the major amendments to the Clean Water Act that today provide most of its structure and teeth were adopted, the Cuyahoga River was repeatedly catching fire and Love Canal was still six years in the future. Clearly the original approach was not working.

There are only so many resources that can be devoted to water quality and first things had to come first. In 1972 Congress directed that EPA focus first on effluent limitation and restricting point sources of pollution, and only later turn its attention to water quality standards. See,e.g., Senate Report of Committee of Conference on S. 2770 in Lib. Of Cong., A Leg. Hist. of the Water Pollution Control Act Amendment of 1972, 93d Cong. 1st Sess. 171 (1973) ("The Administrator should assign secondary priority to [§ 303] to the extent limited manpower and funding may require a choice between a water quality standards process and early and effective implementation of the effluent limitation-permit program." (statement of Sen. Muskie, principal author of the CWA and the Chair of the Senate's Public Works Committee)); see also, Environmental Def. Fund, Inc. v. Costle, 657 F.2d 275, 279 (D.C.Cir. 1981) (The 1972 CWA "assigned secondary priority to the [water quality] standards and placed primary emphasis upon both a point source discharge permit program and federal technology-based effluent limitations...") Until the early 1990s, the EPA focused its attention almost entirely on new point source technological controls, to the exclusion of the identification of water bodies not meeting water quality standards and the establishments of maximum pollutant loads. Pronsolino, 291 F.3d at 1134.

Today, however, most "end of pipe" pollution sources have been brought under control. As that has happened, EPA's attention has turned to state water quality standards. Somewhat like peeling away layers of an onion, as direct discharges from point sources have been largely resolved, the role of non-point sources of pollution has become increasingly apparent. As we no longer need to worry about rivers catching fire or dead zones downstream from discharge pipes, EPA and the states have focused more on whether water quality standards are resulting in fish that are safe to eat, and keeping fish populations healthy.

In urban areas, that new focus is leading to startling and expensive new demands to clean up storm water and failing septic systems. Unlike point-source discharges from industrial facilities, where there was a comparatively deep pocket to bear the cost of reducing the discharge, the public at large and individual homeowners will bear the cost of addressing urban non-point pollution. It will cost hundreds of millions of dollars to remedy the pollution caused by stormwater systems in urban areas. And no one has figured out how to find all the failing septic systems; nor is it clear that there is political will to impose new costs on thousands of homeowners.

In rural areas, agriculture and forestry are significant sources of non-point pollution. There are hundreds of streams listed for exceedance of temperature criteria, where forestry or agriculture are the major cause of the elevated temperature. There are also streams that exceed current standards for agricultural chemicals, including chemicals currently important to the agricultural economy, and DDT and PCBs, which were banned decades ago but remain as persistent pollutants in agricultural runoff. Agriculture can contribute to pollution through crop production and pasture land, as well as feedlots, animal holding and management areas, manure lagoons and aquaculture. Animal feedlots and manure management have been treated as point sources, and the rules applicable to the mare fairly well established. But crop production and grazing are non-point sources of pollution and there is no "technological control" that can rectify the pollution they can cause. The most common strategy is to create natural buffers between agriculture or forestry and water bodies. That strategy often removes rich land from commodity production.[1]

The process of achieving the goals of the Act now require a balance between the strict requirements of insuring that water is safe to drink, fish populations are maintained and the fish is safe to eat, and keeping agriculture and forestry viable.

EPA recently approved new water quality standards and implementation processes for Oregon that were intended to set workable standards for temperature and provide protection for agriculture and forestry operating under state best management practices, only to have the federal court overturn critical parts of those standards.

Washington State is in the midst of reviewing its water quality standards and its implementation processes. The proposed new water quality standards could reduce by an order of magnitude the amount of carcinogens such as DDT and PCBs that would be permissible in Washington's waters. Although it was banned in 1972, DDT remains a persistent pollutant in sediment runoff in agricultural areas. Production of PCBs was banned in the late 1970s, but it is also a persistent pollutant. The consequence of amending the water quality standards may well be that many water bodies that were previously considered clean will be put onto the list of waters that do not meet the requirements of the Act. As a balance to those potential new restrictions, Washington's Department of Ecology also proposed new implementation rules that would extend the time for achieving water quality standards to as much as 30 years. But Ecology started, then stopped, then started that rule-making again.

This paper will provide a brief outline of the Clean Water Act, then discuss what happened and is happening in Oregon, the proposals in Washington to the extent they can be predicted at this time, and the potential impacts on the agricultural communities of eastern Washington from the proposed revisions to the rules.

  1. AN OVERVIEW OF THE CLEAN WATER ACT

The Clean Water Act recognizes two categories of pollutants – point sources and non-point sources.[2] The federal government in the first instance regulates point sources, although it can delegate that permitting responsibility to the states. The Act leaves the regulation of non-point sources to the states, although the federal government has a variety of "carrots" to assist and encourage states, and "sticks" that it can apply if states choose not to implement best management practices for non-point pollution or don't meet federal standards in doing so.

  1. Point Sources

"Point sources" are direct discharges of a pollutant – classically from the discharge pipe of an industrial facility or a "publicly owned water treatment" facility ("POTW," aka "sewage treatment plant").[3] The Act created a "national pollutant discharge elimination system" ("NPDES permit system"), under which any direct discharge of pollutants from a point source is required to have a permit. 33 U.S.C. § 1342. The standard to be applied to NPDES permits increased over time, but for any discharges that originated after 1976, the standard is that the discharge must be the least discharge achievable through "application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants." 33 U.S.C. § 1316(a). NPDES permits must be renewed every five years. Because the "best available technology" is always changing, that has caused the amount of pollutants that can be discharged to go down over time.[4]

EPA can delegate the NPDES permitting system to the states, subject to the federal government's right to disapprove any permit and take back the permitting program if the state does not meet the federal standards. 33 U.S.C. § 1342(b), (c). Washington's Department of Ecology ("Ecology") administers the NPDES permit system in Washington. Oregon's Department of Environmental Quality ("DEQ") administers the program in Oregon.

  1. Non-Point Sources

The Act left the regulation of non-point pollution to the states, through adoption of best management practices. Because that is inherently not prescriptive by the federal government, the Act's mechanism for achieving reduction in non-point sources of pollution is intentionally more convoluted. Agriculture and forestry can have point-source pollution, but the majority of pollution coming from agriculture and forestry is non-point pollution.[5]

In Washington, Forest Practices Rules that affect water quality are co-adopted by the Forest Practices Board and Ecology. WAC222-12-010. The Washington Forest Practices HCP, coming out of the Forest & Fish Report, was intended to both satisfy the requirements of the Endangered Species Act and the obligations of the Clean Water Act.

There is no similar regulatory structure for agriculture. Large feedlots or dairy operations are considered point sources, and must be managed under an NPDES permit. http://www.ecy.wa.gov/programs/wq/permits/cafo/ DOE enforces the Clean Water Act as to grazing and various crops through various programs of assistance to farmers to encourage best management practices, or where those are ineffective, through enforcement actions.[6]

  1. Water Quality Standards

The process of controlling non-point pollution starts with the requirement that each state adopt water quality standards for each body of water. 33 U.S.C. § 1313. The water quality standards must designate the uses of all waters (i.e., fish rearing, agriculture, industrial uses, fish spawning), and specify the criteria that are needed to achieve those uses. The water quality standards must include criteria for a list of toxic pollutants identified by EPA. 33 U.S.C. § 1313(c)(2).

The states must submit their water quality criteria to EPA, which has 60 days to review and approve – or disapprove – those criteria. 33 U.S.C. § 1313(c)(3). The state must review its water quality standards at least once every three years, and make the results of that review available to EPA. 33 U.S.C. § 1313(c)(1). If the State revises its water quality standards, then once again, EPA has 60 days to review and approve the revised standard. If EPA approves the state as water quality standards, then those become the state's water quality standards. If EPA determines that one or more standards do not comply with the Act, EPA must notify the state what changes it needs to make in the standards. If the state does not adopt the required changes within 90 days after getting EPA's notice, then EPA is required to publish its own water quality standards for the state, and EPA'€™s standard becomes the state'€™s standard. 33 U.S.C. § 1313(c)(3), (4).

That structure does at least two things of note. First, it allows and requires site-specific decisions. Water quality standards typically include maps €"with the uses of streams being spelled out very specifically."[7] Second, it allows at least a degree of regional and political flexibility. If a state chooses in the first instance to limit the designated uses of its waters, that is the state'€™s right. States are required to review their water quality standards every three years, but after the initial mandatory submission of water quality standards back in the 1970s, EPA'€™s review and approval/disapproval authority applies only when a state chooses to amend its water quality standards. This provides the states with some level of local control over the pace at which the process of achieving the Act'€™s goals and objectives occurs. It also accounts for the fact that water quality standards in the Northwest have historically been more stringent than in other parts of the country.

  1. TMDLs

Once the water quality standards are in place, the issue is whether those standards are being achieved, and if not, how they can be achieved. That starts with what is known at the state'€™s "303(d)"€ list. Section 303(d) of the Act, 33 U.S.C. § 1313(d)(1)(A) and (B) provides that states must identify the waters within the states for which the effluent limitations included in the various NPDES permits for discharges into that water body "are not stringent enough to implement any water quality standard applicable to such waters" or where "thermal discharges [allowed] are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish and wildlife."

In short, assuming the only sources of a particular pollutant are point sources, and all the point sources have NPDES permits based on the best available control technology, that still may not be good enough to meet the water quality standards for a water segment. The 303(d) list identifies all those waters where NPDES permits were not enough to meet the water quality standards. Of course many water segments may be on the 303(d) list because of a combination of point source and non-point source pollution. Indeed, some water segments have only non-point source pollution. But regardless of the source of the pollution, the 303(d) list identifies those water bodies that don't meet state water quality standards.

At least in theory, the state is required to submit its 303(d) list every two years.[8]

States must then establish the "total maximum daily load" or "TMDL" for each water body listed on the state's 303(d) list. 33 U.S.C. § 1313(d)(1)(C) and (D). The total maximum daily load for non-thermal pollution must "be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." The total maximum daily thermal load for water bodies exceeding the temperature water quality standards "shall include a calculation of the maximum heat input that can be made into each water body segment and shall include a margin of safety which takes into account any lack of knowledge concerning the development of thermal water quality criteria for such protection and propagation in the identified waters.

In other words, the TMDL in effect says, "forget what the NPDES permits say is 'achievable,' that isn't good enough here. This is the maximum all pollution that all polluters get to have along this water body." The resulting TMDL makes a "waste load allocation" to the various point-sources of pollution affecting the water body, and a "load allocation" to the various non-point sources of pollution. 40 C.F.R. § 130.2(g)-(i)(2000). The TMDL is submitted to EPA for approval, and if it is approved, it must thereafter be incorporated within the state's water quality plans. 33 U.S.C. § 1313(d)(2). Stream segments for which a TMDL has been approved must be included in the plans that the state is required to submit to EPA for approval.

  1. Anti-degradation – the Interplay Between Point Sources, Non-Point Sources and TMDLs.

The question then becomes, "so what?" The most direct consequence is to point source polluters. When an existing point source polluter's NPDES comes up for renewal, there will be a process for determining the options for bringing the discharge down to the party's waste load allocation. An existing point-source polluter which wants or needs to expand its discharge or a new point-source polluter will have a very limited ability to do that, unless they can make a deal with another polluter to in effect buy out that polluter's waste load.

The Clean Water Act has no direct enforcement mechanism for non-point pollution. That is left to the states.[9] States are required to develop area-wide waste management plans to address non-point sources of pollution with respect to waters with a TMDL. Whether the State chooses to implement the plan is technically within the state's control.But there is a carrot to be lost if it chooses not to. "States must implement TMDLs only to the extent that they seek to avoid losing federal grant money; there is no pertinent statutory provision otherwise requiring implementation of § 303 plans or providing for their enforcement." Pronsolino, 291 F.3d at 1140.

A TMDL allocates load to non-point sources of pollution as well as allocating waste load to point sources of pollution. Washington's DOE can and does enforce violations of the Clean Water Act, including where necessary imposing enforcement orders on non-point source polluters. See,Lemirev. DOE, PCHB 09-159 (2010 WL 4390114, Oct. 27,2010)(sustaining an order issued under RCW 90.48.120 requiring a rancher to take a number of actions to prevent cattle from having access to a creek on the 303(d) list for fecal coli form, temperature, pH and dissolved oxygen).[10] Pronsolino, 291 F.3d 1123, affirmed an EPA refusal to approve the State of California's 303(d) list, and EPA's adoption of a TMDL for a river segment for which there were only non-point sources of pollution. The TMDL in that case required a 60% reduction in sediment loads within the river. That in turn caused the state's Regional Water Quality Control Board to limit harvesting on the Plaintiffs' property, at a cost to one landowner of $750,000, to another landowner of $10.6 million, and to a third of $962,000. The Ninth Circuit upheld EPA's imposition of the TMDL on the water body, and essentially disclaimed any federal responsibility for the fact that the state thereafter imposed the cost of bringing the water segment into compliance on non-point source polluters.

  1. OREGON'S ATTEMPT TO AMEND ITS WATER QUALITY STANDARDS TO PROVIDE PROTECTION FOR AGRICULTURE AND FORESTRY

Salmonids require cold water in their spawning, rearing and migration habitat. Oregon is at the southern edge of the range of salmonids, and the further south, the warmer the water. So temperature is a critical issue for salmon in Oregon, and natural conditions tend to press the edge of salmonid tolerance. Forestry and farming, as well as many industrial processes, tend to raise the temperature of streams. That has led to a decade of litigation over Oregon's water quality standards.

The dispute started when in 1996 Oregon adopted a 68º F temperature standard for the lower Willamette River. In 1999, EPA rejected that standard, but thereafter took no steps to adopt a water quality temperature standard for the lower Willamette itself – as required by 33 U.S.C. § 1313(c)(3). In 2001 Northwest Environmental Advocates sued the EPA to compel it to adopt water quality standards and to adopt an anti-degradation implementation plan for Oregon. The claim went far beyond just a review of the temperature standard for the lower Willamette, and the court ultimately ordered EPA to promulgate its own water quality standards and an anti-degradation plan for Oregon's waters. Northwest Environmental Advocatesv. EPA, 268 F. Supp.2d 1255 (D. Ore. 2003)(NWEA I).

In response, in December 2003 Oregon promulgated revised water quality standards for temperature, inter-gravel dissolved oxygen and anti-degradation and submitted them for approval. In March, 2004, EPA approved the new standards.

Those standards provided that forest operations that complied with the Oregon Forest Practices Act would be deemed in compliance with the rules regarding temperature. Similarly the new standards provided that farming or ranching operations that are in compliance with the Agricultural Water Quality Management Act requirements would be deemed to be in compliance with state water quality temperature rules. OAR 340-041-0028 (12)(e), (f). OAR 340-041-0061 (10) and (11) provided protection for forestry and agriculture from violation of other water quality standards – although forest operations may be given a load allocation in a TMDL, and the rules provided an iterative process for area agricultural plans in order to meet water quality standards.

Oregon and EPA contended that EPA did not need to review and approve the rules protecting forestry and agriculture that was in compliance with the best management practices because they were not water quality standards, but instead define what non-point sources must do to comply with Oregon's water quality standards. EPA contended that it had no authority to review the non-point source provisions.

Northwest Environmental Advocates sued again.

In February of 2012, the federal court in Oregon struck down the rules protecting forestry and agriculture. Northwest Environmental Advocates v. EPA, Case No. 3:05-cv-01876-AC (Opinion and Order entered Feb. 28, 2012)(NWEA II). The court ruled that although the provisions regarding non-point pollution are not traditional water quality standards, "it is clear that at least some of the provisions are intrinsically intertwined with the promulgated water quality standards and have the potential to supplant or, at the very least, delay the attainment of those standards. For instance, OAR 340-041-0028(12)(e) provides that forest operations on State and private lands are to comply with water quality standards for temperature by implementing best management practices ("BMPs") already required under the Forest Practices Act...and that forest operations that comply with the BMPs are 'deemed in compliance with' temperature standards. This, and other provisions, essentially exempt various non-point sources of heat pollution from complying the water quality standards so long as they maintain the status quo."

Id at 12. Therefore, the court ruled that EPA was required to review and approve or disapprove Oregon's non-point pollution implementation rules.

To be clear, this court is not holding that the challenged provisions are water quality standards, but simply that they are so bound up with Oregon's water quality standards that the EPA was required to review the effects of those provisions to ensure that they do not supplant, delay the implementation of, or in some other way undermine the application of Oregon's standards to the state's water bodies.

Id at 17.

Northwest Environmental Advocates also challenged a number of Oregon's temperature rules. Applying the standards for judicial deference to agency decisions, the court sustained Oregon's 68º F standard for salmon migration, Id at 19-21, a 64º F standard for salmon and steelhead juvenile rearing and migration, Id at 21-22, a 55º F standard for salmon and steelhead spawning, Id at 22-23, a 54º F standard for bull trout rearing and spawning, and Oregon's use designations, Id at 27-30.

On the other hand, the court invalidated EPA approval of two other water quality standards. The first was the "natural conditions criteria," which recognized that some Oregon streams would have exceeded the water quality standards for temperature prior to any European settlement. In those situations, the rule made the natural thermal temperature the water quality standard for that water body. The court €"in what was arguably exactly the sort of judicial activism that so infuriates people" found the natural determinants criteria to be arbitrary and capricious on two grounds. The first was that in the natural condition water bodies would have had cold water refugia which would have made the warmer waters tolerable for salmonids, while the rule would simply supplant a protective standard with a non-protective standard, with no assurance that cold water refugia remain. The second was that EPA could not presume that a temperature that maintained salmon populations historically would do so today, because of the other changes that have occurred to modern water bodies. While factually, the court may have been right about both of those biologic statements (I don't know; I'm just a lawyer), they are clearly biologic statements that courts do not have expertise to render and EPA does. So the Court was clearly supplanting the agency in its expert judgment on these issues.

The Court also invalidated EPA approval of Oregon's anti-degradation implementation plan. EPA argued that it didn't need to review all of Oregon's anti-degradation implementation plan, because not all of the plan was a "water quality standard." The court disagreed – primarily because in the earlier litigation it had ordered EPA to promulgate an anti-degradation implementation plan for Oregon, thus essentially making the implementation EPA's responsibility whether or not it would otherwise have been.

Finally,the court invalidated the biological opinion of the U.S. Fish & Wildlife Service and NMFS that was prepared as part of Section 7 consultation under the ESA on several grounds and remanded the issue to the Services to be reconsidered.

The ultimate implication of NWEA II for Washington is hard to predict. The parties have been negotiating to try to settle the case ever since. Thus far the primary result has been an agreement to repeal the provisions saying that compliance with the Oregon Forest Practices Act and Oregon's Agricultural Water Quality Management Act would be deemed to place a landowner in compliance with the water quality standards.

On the forestry side, that is unlikely to have significant implications in Washington, because Washington's Forest & Fish Report, which was followed by the Forest Practices Rules Habitat Conservation Plan and the Forest & Fish rules, have resulted in assurances from DOE that establishing TMDLs on Washington waters affected by forestry will be its lowest priority. DOE, EPA, the U.S. Fish & Wildlife service and NOAA Fisheries all seem to be persuaded that Washington's current forest practices rules likely provide the quickest and most effective way to achieve Washington's water quality standards for waters that have been impaired by past forestry. They also recognize that it will take some number of decades to restore conditions that achieve those water quality standards in some instances.

Washington does not have the equivalent of Oregon's Water Quality Management Act, ORS568.900-.933. It accomplishes similar functions through soil conservation districts, but they do not have the same prescriptive power as Oregon's water quality management plans. It is unlikely that Washington would seek to adopt water quality standards that attempted to give the sort of blanket protection to agriculture that Oregon's rule attempted to achieve.

Washington amended its temperature rules, effective in 2011, and EPA approved those rules. WAC 173-201A-200.

Washington also adopted a rule dealing with natural conditions and irreversible conditions that make the water quality standards unattainable, WAC 173-201A-200, which is more nuanced and protective of fisheries than Oregon's rule was. On the other hand, there is no evidence that Washington's rule is practical. It calls for case-by-case determination as to what water quality requirements should be applied to such streams in order to support designated and existing uses. That would resolve the problems the court had with Oregon's natural determinants rule – but there is no evidence that it has been successfully used. Indeed, there is no evidence that DOE is likely to ever have adequate resources and staffing to implement the rule. So, while Oregon's rule was far simpler and more possible to implement, it could not get past judicial scrutiny. On the other hand, Washington's rule may provide no practical assistance to uses on streams where water quality standards are not attainable – but it would pass judicial scrutiny under the NWEA II standard.

  1. WASHINGTON'S CURRENT PROCESS AMENDING ITS WATER QUALITY STANDARDS

33 U.S.C. § 1313(c)(1) requires that states reconsider their water quality standards at least once every three years, and report the results to EPA. Whenever the State does revise its water quality standards, EPA has to decide whether to approve the new standards, and if it disapproves the revised standard, can ultimately promulgate its own water quality standards. 33 U.S.C. § 1313(c)(2) and (3).

Washington is in the midst of reconsidering two aspects of its surface water quality standards – the human health criteria to be used in establishing the level of toxics that can be discharged into state waters, and implementation criteria that would allow more than a decade, and up to 30 years, for water bodies that do not meet water quality standards to come into compliance.

Attached are two DOE focus sheets in which DOE attempts to explain what it is doing, and a copy of former DOE Director Ted Sturdevant's July 16, 2012 letter to interested parties, explaining why DOE was withdrawing its pre-proposal for rule-making and start over – which DOE did on September 13, 2012. Because DOE is in the midst of the process, it is impossible to predict the outcome. But the issues have been framed.

"Toxics" come in two forms. There are some chemicals that humans can consume some amount of with no obvious ill effects – but if they exceed a threshold, adverse health effects happen. Arsenic or mercury are examples of that category of those toxics. Other toxics, primarily carcinogens, have no "safe" level. At any level they increase the risk of people who ingest them getting cancer. DDT and the compounds it breaks down into and PCBs and the compounds it breaks into are examples of the second category.

For the second category – the chemicals for which there is no known "safe" level, the amount of pollution allowed is based on a somewhat gruesome decision – how many people are we willing to allow to get cancer? One person in 100,000? One person in a million? One person in ten thousand?

Toxic chemicals that are discharged into water end up harming people because the chemicals end up in fish and people eat fish. So for any chemical, or either category, and with any risk factor, a key question in calculating how much pollution can be allowed is "how much fish do people eat?"

Washington's current water quality standards are based on a 1992 EPA rule that set the "default assumption" for fish consumption at 6.5 grams per day. That works out to be one quarter pound serving (a size serving only a nutritionist could love; most Americans are used to significantly larger portions) every 17 days. A coalition of Native American groups (whose members frequently eat far more fish than that) and environmentalists (who maybe more motivated by the notion that the toxics aren't good for the fish) have pressed DOE to adopt different fish consumption standards as the basis for Washington's water quality standards. DOE has done surveys to find out how much fish various populations do eat. Those surveys would support higher, perhaps much higher, fish consumption assumptions.

One response to setting higher fish consumption levels could be to set a lower risk factor – to go from a risk factor of 10-6 to 10-5. But it would obviously be politically difficult to make a regulatory decision that more cancer is just the price we need to pay.

The upshot is that it is likely that the water quality standards for toxics will be lowered, and that will mean that a substantial number of water bodies that currently meet state water quality standards will have to be placed on the state's 303(d) list because of toxics. There is a perverse reality about DDT and PCBs – they were banned decades ago, but they were used so heavily before they were banned and they are so persistent in the environment that they, and the chemicals they break into as they degrade, remain among the most frequent chemicals to cause 303(d) listings. Sediment runoff in many areas still contains significant levels of DDT and PCB and their by-products.

That creates the genesis for DOE's proposed modification of its implementation rules. Under current rules, DOE can grant a variance from the water quality criteria for a particular water body for not more than five years, where reasonable progress is being made towards meeting the original criteria. WAC173-201A-420. That assumes that the point and non-point sources along the water body are doing all that is possible to reduce their contribution to the toxic in question. But for most of the toxics, there is no magic bullet. It will take years under the best of circumstances to bring the water body into compliance. Five years is not enough time.

In 2009 the Legislature directed DOE to amend the state water quality standards to authorize compliance schedules in excess of ten years for discharge permits issued for streams with TMDLs. RCW 90.48.605.

If the water quality standards for various toxics are made an order of magnitude or more stringent, that will simply exacerbate the problem. The point of DOE's modification of the implementation rules is to create a process by which DOE can satisfy itself that the sources of the toxic pollution are as controlled as they can be, but then give those controls time to work.

Ultimately the most worrisome thing about the NWEA II case is not that the exact situation there will occur in Oregon, but that the strategy used there could be used in Washington. DOE is correctly considering modification of the water quality standards for toxics as a package with modification of the rules regarding implementation. It is unlikely that a court would overturn a modification of the water quality standards to reduce the level of toxins that can be discharged. But a court might be more likely to overturn a rule providing implementation flexibility. The two must be linked, or the consequences for most of Eastern Washington could be very harsh.