The Riverkeeper and his lawyer take a good rip at a proposed new bill that attempts “to legislate out” provisions of the federal Clean Water Act.
(January 25th update) Since we posted this story on January 22nd, we’ve learned of Kelly Susewind’s testimony before the House Agriculture and Natural Resources Committee the same day. Susewind is the program manager for the Washington Department of Ecology’s Water Quality Program. His frank testimony in opposing HB 2559 made several of the points that Rick & Mike’s letter made. After informing the committee that he was a strong proponent of water pollution trading in general, and that he was anxious to see it put in practice to meet the Spokane River’s dissolved oxygen problems, he had this to say:
“Given my enthusiasm for trading, you’re probably wondering why we’re opposed to the bill. We’re primarily opposed to the bill because we feel it is inconsistent with the Clean Water Act and the state Water Pollution Control Act.
“For water quality trading to work you need to have it be pollutant specific, or at least address pollutants that effect the same water quality end point. It needs to be in a specific water body, and it needs to be addressed in a similar timeframe. It’s intended to fix a specific problem. You can’t trade one pollutant for another. The bill, as we read it, will allow for this sort of out of kind trading. It would allow trading one pollutant for another, trading pollutants for technology requirements that are otherwise required under the Clean Water Act and state law. Or even, in this bill, trading pollutant reductions for administrative requirements under the permits. We don’t think those are sound policy, or legal under current federal law.”
You can watch Susewind’s testimony, among others, at this link to the TVW video of the hearing. –tjc
For the second time in as many sessions, Spokane Riverkeeper Rick Eichstaedt is helping to lead a fight against Washington state legislation that would weaken the state’s commitment to compliance with the federal Clean Water Act.
This time he has some help, close to home, in Mike Chappell, the attorney who heads up the Gonzaga Law School’s environmental law clinic and who represents the Spokane Riverkeeper in legal actions aimed at protecting Spokane River water quality.
The nemesis this year is House Bill 2559 introduced earlier this month by three west side legislators, Rep. Deb Eddy (Redmond, Kirkland, etc.), Rep. Dave Upthegrove (Sea-Tac, Des Moines), and Rep. Dan Roach (Bonny Lake). Eddy and Upthegrove are Democrats, and Roach is a Republican.
While the main purpose of the bill is to instruct the state to put in place a “watershed-based” pollution trading and banking system by the end of next year, it contains language whose plain meaning would compel the state to try to override federally mandated water quality standards in order to help polluters come into compliance with state and federal clean water requirements. The bill is primarily oriented to addressing water bodies like the Spokane River which are out of compliance because of nutrient pollution leading to low dissolved oxygen.
“If passed,” Eichstaedt and Chappell warn, “HB 2559 would be preempted by federal law because it directly conflicts with the Clean Water Act (CWA). Because federal law preempts state law, the state may only legally implement standards that will be more stringent than federal standards; not less stringent, and there is no scientific evidence that nutrient trading or banking is more stringent than existing Clean Water Act requirements.”
Eichstaedt and Chappell sent their critique, Thursday, to Rep. Timm Ormsby (D, Spokane) who sits on the committee (Agriculture & Natural Resources) where the bill will first be examined and debated.
On a purely practical level, the two point out that there’s very little evidence to suggest pollution trading schemes, such as the one proposed, are effective. They note, for example, that efforts to use pollution trading and banking in the Chesapeake Bay watershed have failed woefully in meeting targets for nutrient reductions set by the U.S. Environmental Protection Agency (EPA).
But the main problem they underscore is how the bill’s language conflicts with settled federal law, including a landmark 2007 Ninth Circuit opinion (Friends of Pinto Creek v. U.S. EPA) where the court emphatically barred new discharges of polluted water into streams that were already impaired by pollutants. Under a pollution trading plan, point dischargers could initiate or continue pollution discharges into polluted waterways if they could be credited with accomplishing pollution reductions elsewhere in the watershed, directly or by purchase.
“Washington law does not allow for nutrient offsets for existing dischargers,” the two note in their letter to Ormsby, “and federal law prohibits offsets for new dischargers, therefore any trading scheme developed by the state could not be used under any circumstance for a new source or discharge, such as the proposed Spokane County [wastewater treatment] plant.”
Eichstaedt and Chappell reserve their most pointed criticism for language in the bill that literally states that pollution trading be pursued “in lieu of other technology or water quality-based requirements.”
It’s pretty simple, they point out: “The Clean Water Act prohibits the issuance of permits where the resultant discharge will cause or contribute to the violation of water quality standards.”
–CFJ
No comments yet.