The Clean Water Act (CWA) is a powerful tool for protecting our waters. Puget Soundkeeper’s mission is to protect and preserve the waters of Puget Sound. This includes ensuring that clean water protections are not weakened by national and regional rulemaking processes, as well as holding individual polluters accountable when they violate the CWA.
Everyone has a right to clean water. Yet studies across the country show that our waterways are seriously polluted with nutrients, heavy metals, toxic chemicals, and more. The CWA requires that states set water quality standards to keep these pollutants out of our water and out of our fish. Water quality standards set the bar for protecting our lakes, rivers, and estuaries. Puget Soundkeeper advocates for strong water quality standards in Washington State and works to influence national policy that improves the health of our local waterways. When the State and/or Federal government fails to take the necessary action to protect human health and the environment under the CWA, Puget Soundkeeper reserves the right to take legal action to uphold those standards. The CWA also includes a ‘Citizen Lawsuit’ provision that allows groups such as Puget Soundkeeper to file lawsuits against individual polluters who violate water quality standards.
Advocating for strong standards and taking legal action against polluters are two ways Soundkeeper helps to ensure that laws to protect our waterways remain strong and are enforced.
Waters of the United States (WOTUS)
Passed in 1972, the Clean Water Act compels the Environmental Protection Agency (EPA) and the Army Corps of Engineers to protect the Waters of the United States (WOTUS). This would seem to mean all waters. In fact, it’s clear from the Congressional record – including documents, testimony and recordings of the hearings from the 1970’s – that the U.S. Congress wanted WOTUS to include all waters possible, to afford the public the greatest possible protections for our public resources. However, a reference to “navigable waters” in the language of the Clean Water Act has been used in the past to exempt certain waterways from protections.
In 2006, the United States Supreme Court issued confusing and conflicting opinions attempting to narrow the definition of WOTUS in the case Rapanos vs United States. This decision had ripple effects, impacting clean water efforts to this day.
Clean Water Act protection is often contested as it applies to small streams and wetlands, like the wetland at issue in Rapanos. While those waters were protected for many years as WOTUS, after the Supreme Court’s fractured 2006 Rapanos decision, legal protection of small water bodies and wetlands were and continue to be evaluated on a case-by-case basis. Since then, agencies are reluctant to do the work required to evaluate these waters on a case-by-case basis.
The Dirty Water Rule 2015 – 2020
In February of 2017, President Trump issued an executive order directing the EPA and Army for Civil Works to review the Clean Water Rule and consider withdrawing it and replacing it with a weaker version. In response, the agencies moved forward with several rulemakings, ultimately repealing the Clean Water Rule in late 2019 and replacing it with a much weaker rule that opponents refer to as the “Dirty Water Rule.” These agencies finalized the Dirty Water Rule in May 2020.
The Dirty Water Rule attempts to strip Clean Water Act protections farther than ever before, seeking to exempt entire categories of waters that have always been protected from pollution in the United States. The Dirty Water Rule could strip protections from more than 50% of the Nation’s wetlands, and more than 18% of the country’s streams and rivers. This equates to millions of miles of streams and rivers that would no longer be protected from pollution.
Current Legal Actions
In 2015, the EPA engaged in a rulemaking that revised WOTUS, reducing the number of waterways protected by the Clean Water Act. Advocates refer to that rule as the Clean Water Rule. Industry pressure led to the exclusion of some streams, wetlands and other waterways for the first time, contrary to scientific evidence and the requirements of the Clean Water Act.
In 2020, the Dirty Water Rule was finalized and in response, Earthjustice filed challenges on behalf of Puget Soundkeeper and partners throughout the U.S. – the Quinault Indian Nation of Washington state, Pascua Yaqui Tribe of Arizona, Bad River Band of Lake Superior Chippewa, the Fond du Lac Band of Lake Superior Chippewa of Minnesota, the Menominee Indian Tribe of Wisconsin, the Tohono O’odham Tribe of Arizona, Mi Familia Vota, Idaho Conservation League, and the Sierra Club.
This ligitation is ongoing and Puget Soundkeeper and our partners will continue to fight for the full protection of our nation’s waters as Congress intended.
Water Quality Standards in Washington State
The Clean Water Act requires states to set water quality standards to keep toxic pollutants out of our water and out of our fish. For many years, Washington State standards were among the weakest in the nation. Puget Soundkeeper, in partnership with other regional Waterkeeper organizations and area tribes, advocated for strong water quality standards, pressuring the Washington State Department of Ecology (Ecology) to make necessary improvements.
Toxic pollutants accumulate in fish tissue and can biomagnify up the food chain, which is why fish consumption data is critical for protecting public health. Other pieces of the equation are allowable cancer risk, drinking water intake, and average body weight. Weakening protections for water quality threatens the health of anyone who eats fish from our waters or who fishes for subsistence in Washington State. Communities of color and indigenous communities in our region are known to eat large quantities of fish, making the debate around fish consumption an environmental justice issue.
Water quality standards have been required since the passage of the Clean Water Act in 1972. But, at that time, no accurate regional data was available on fish consumption- an important piece of the equation used to set water quality standards for toxic pollutants. As a result, Washington’s rate was set at 6.5 grams of fish per day, an amount of fish that fits on a small cracker and adds up to only one fish meal per month. Almost everyone in Washington eats more than that, and certain communities like Native American tribes and Asian immigrant and Pacific Islander communities far exceed one serving of fish per month. Ecology’s research on fish consumption in 2012 revealed that many tribal members eat over 700 grams of fish per day, and up to 380,000 Washington adults eat over 250 grams per day. More worrisome, are the statistics for children, who have greater sensitivity to toxins. At least 29,000 Washington children eat over 190 grams of fish per day.
Current Legal Actions
After over 2,000 public comments calling for stronger standards, many years of advocacy, and a lawsuit against the EPA for failing to step in, the EPA finalized a new water quality standard rule for the state in early 2017. This rule included a strong fish consumption rate of 175 grams of fish per day, resulting in greater water quality protections for human health. A coalition of industry groups petitioned EPA to reconsider the rule.
In the fall of 2018, under Trump’s new federal administration, the EPA responded to the industry group’s petition and granted their request and roll back of the stronger water quality protections granted to Washington State in 2017. When the proposed EPA rollback rule became public on August 6, 2019, Puget Soundkeeper took action – rallying Waterkeepers throughout Washington, collecting comment letters for submission to EPA, and culminating in a Pack the Room meeting on September 25, 2019 that gathered nearly 100 supporters who also attended the EPA hearing later in the day. Puget Soundkeeper submitted formal comments opposing this rollback and are poised to challenge any final action by EPA repealing the protective standards in court.
In 2020, the rollback was finalized and in response, Puget Soundkeeper alongside regional tribes, environmental groups, water quality advocates and fishing organizations filed a lawsuit to fight the Trump administration’s latest effort to dismantle laws that protect Washington State’s clean water and public health. This litigation is ongoing and we will continue fighting to protect our communities’ rights to swimmable, fishable, and drinkable waters.
- Puget Soundkeeper and partners send letter to Ecology expressing concern over failure to improve on Washington’s weak water quality standards.
- Puget Soundkeeper and partners send comment letter to Ecology regarding the process of setting new water quality standards.
- Puget Soundkeeper files lawsuit against EPA for not stepping in and setting strong standards in Washington.
- Puget Soundkeeper and other groups send comment letter to Ecology and Governor Inslee asking for strong water quality standards without loopholes for industry.
- Ecology releases draft standards tied to a toxics source control package in the Legislature.
- Toxics package fails in the Legislature.
- Ecology announces they are suspending the state water quality standards process.
- EPA begins their process and releases draft standards for Washington.
- Ecology holds a press conference declaring they will rewrite their draft to preserve state control of the water quality standards.
- Earthjustice submits comment letter on behalf of Waterkeepers Washington urging EPA to finalize their rule.
- Earthjustice, on behalf of Waterkeepers Washington, sends 60-day notice letter to EPA.
- Ecology releases a new draft rule that fails to meet the standard set by the EPA.
- On November 16, 2016, EPA promulgates more protective water quality standards for Washington.
- On February 15, 2017, industry groups petition EPA to rescind the more protective water quality standards it promulgated.
- On August 3, 2018, the EPA, under Trump’s new federal administration, responds positively to the industry petition.
- On May 5, 2019, EPA signals the upcoming rollback of Washington’s water quality standards.
- On May 7, 2019, Ecology Director Maia Bellon sends a letter to EPA objecting to the proposed rollback of Washington’s water quality standards.
- On May 10, 2019, EPA informs Ecology it will roll back Washington’s water quality standards.
- On May 10, 2019, Governor Inslee and Attorney General Bob Ferguson announce a lawsuit by Washington State against EPA for the rollback.
- On June 6, 2019, Washington State files the lawsuit.
- August 6, 2019, EPA opens comments on the rollback through October 7, 2019.
- September 25, 2019, Puget Soundkeeper hosts pre-hearing meeting and Pack the Room event at EPA Hearing in Seattle.
- October 7, 2019, Puget Soundkeeper and partners, represented by Earthjustice, submit technical comments to the EPA opposing the rollback.
- On April 16, 2020, EPA Administer Wheeler signed a final rule to withdraw certain federal Clean Water Act (CWA) human health criteria (HHC) for waters under the State of Washington’s jurisdiction.