Under the 1972 federal Clean Water Act, Congress specifically reserved that state and tribal governments have the authority to protect water quality in their respective jurisdictions. This key reservation of state and tribal rights is detailed in Section 401 of the Act, which requires any applicant seeking a federal license or permit that could result in a discharge to U.S. waters first obtain water quality certification from the state or tribal government where the discharge originates.
Under the Section 401 certification process, states and tribal governments evaluate proposals for compliance with state and tribal water quality requirements, and may add conditions or deny applications based on those requirements. Any conditions from a state or tribal water quality certification become conditions in the federal permit.
In this way, Congress ensured states and tribes could continue to protect their waters, including by applying standards more stringent than federal standards, even when the federal government is the permitting and/or licensing authority.
Ecology’s concerns
The new Section 401 rule limits what types of pollution discharges a state can review under the Clean Water Act. It also limits the amount of information a state can request from an applicant, dramatically shortens the amount of review time states have to act on an application, and limits the conditions that states can put into 401 certifications to protect state waters from pollution.
More information
Status
June 1, 2020 - EPA announces final rule
Legal actions
History
The 1972 federal Clean Water Act affords protections to “waters of the United States," governs water pollution, outlines state and tribal government authority, and helps protect Washington water.
Ecology’s concerns
A new rule strips federal protections from tens of thousands of wetlands and streams. Although Washington law still protects these waters, the changes leave the state without an established process for authorizing impacts and setting mitigation requirements for streams and wetlands protected under state, but not federal, law. The federal retreat is creating uncertainty by putting private and public developers at risk of violating state water quality protections.
More information
Status
April 21, 2020 – EPA publishes final rule to revise Waters of the United States definition.
Legal actions
- Dec. 20, 2019 – Washington joined 14 other states and New York City to challenge EPA’s repeal of the 2015 WOTUS Rule and replacement of that rule with prior agency guidance. (The states and city moved to voluntarily dismiss this case, filed in U.S. District Court for the Southern District of New York, after EPA finalized the 2020 WOTUS Rule on April 21, 2020).
- May 1, 2020 – Washington joined 17 other states, the District of Columbia, and New Yok City to challenge the 2020 WOTUS Rule in the U.S. District Court for the Northern District of California.
History
The Human Health Criteria are a set of water quality standards used to determine how clean the state’s waters must be in order to protect human health. The criteria are sometimes called the “fish consumption” standards, because the level of toxics in fish is one of the tools used to set allowable levels. The criteria set maximum levels for toxics such as PCBs in these waters.
Ecology’s concerns
EPA adopted changes to our proposed water quality standards in 2016. Ecology accepted those changes and has been working in good faith with local governments and industry to implement those standards. Rolling back the standards now casts that regulatory process into uncertainty, and goes against the wishes of Ecology, tribes, and many groups with vital interests in the 2016 standards.
More information
Status
May 13, 2020 – EPA adopted final rule revising water quality standards for Washington state
Legal actions
- June 6, 2019 – Lawsuit filed in U.S. District Court, Western District of Washington, after EPA made its decision to revise Washington’s existing rule.
- April 14, 2020 – Motion for Summary Judgement filed in case, asking judge to rule EPA’s action a violation of the federal Clean Water Act.
History