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Clean Water Act Assurances Under Attack

December 22, 2022

Overview

Earthrise Serves EPA with Notice of Intent to Sue, Challenging Washington’s Forest Practices Rules

Nearly 20 years ago, the Washington Forest Practices Board adopted forest practices rules intended to address water quality impacts from nonpoint sources of pollution affecting Endangered Species Act (ESA)-listed species of salmon.[1] The forest practices rules addressed the need to develop total maximum daily loads (TMDLs) for 303(d)-listed waterbodies affected by forest practices so that Washington’s Department of Ecology (Ecology) could use its resources to address activities far more detrimental to salmon recovery than timber management.[2] Both Ecology and the U.S. Environmental Protection Agency (EPA) agreed that Ecology’s approach was adequate to improve water quality in the applicable, impaired waterbodies. This agreement is commonly known as “Clean Water Act Assurances.”

On October 31, 2022, Earthrise Law Center (Earthrise) sent EPA a notice of intent to sue (NOI) for violation of its duties under Clean Water Act (CWA) section 303(d)(2).[3] In sum, the NOI letter alleges that EPA has failed to act in response to Ecology’s decision not to submit TMDLs for impaired waterbodies and that the Clean Water Act Assurances do not comply with 33 U.S.C. 1313(d)(2).   

On January 1, 2023, Earthrise will likely commence a lawsuit with the allegations consistent in the NOI. If successful, the litigation could significantly disrupt operations under the current forest practices rules in Washington and create precedent to challenge similar Clean Water Assurances in other states.

CWA Background

Section 303(d) of the CWA requires the EPA administrator to prepare a list of waters identified as impaired waters.[4] Impaired waters are waters for which the effluent limitations imposed on point source discharges are not stringent enough to satisfy any water quality standard for such waters, and thus they are known as “impaired.”[5] States list waters that are impaired and then submit the list to EPA with a proposed TMDL for those pollutants contributing to the impairment of the water, which EPA must approve or disapprove.[6]

Washington’s Forest Practices Act and CWA Assurances

In 1999, the Washington Legislature, after input from various interest groups, passed the Forest Practices Salmon Recovery Act.[7] The Act directed the Washington Forest Practices Board to adopt new forest practices rules in line with recommendations in their Forests and Fish Report.[8] The Forests and Fish Report was a negotiated, adaptive management-based approach that sought to provide regulatory certainty in forest practices while also supporting salmon recovery.[9] The State of Washington then worked with the U.S. National Marine Fisheries Service and the U.S. Fish and Wildlife Service to develop Washington’s Forest Practices Habitat Conservation Plan (FPHCP), which accompanied the State’s application for incidental take permits from each agency based on its adoption of its new forest practices rules.[10] Part of the FPHCP includes Clean Water Act Section 303 Assurances (Assurances).[11]

The Assurances state that,

EPA Region 10 and Ecology are co-stewards of the Clean Water Act.

* * *

EPA and Ecology have confidence that the [Forests and Fish] Report, when signed and implemented, provides the quickest and most efficient means for achieving environmental goals and State of Washington water quality standards. Accordingly, TMDLs for waters impaired by sediment, habitat degradation, flow, turbidity or temperature caused by forest practices covered in the Report and recommendations (private and state lands subject to Board regulation) affecting a current or future 303(d) listed water body, become a lower priority for EPA and Ecology.[12]

The strategy aimed to implement forest practices rules as best management practices to address nonpoint sources of pollution that result from forest practices.[13] The Assurances promised that implementation of the forest practices rules would be the quickest and most efficient means to achieve Washington’s water quality standards.[14] The Assurances were initially intended to expire in 2009, but have been extended and are still in effect.[15]

Earthrise’s Notice of Intent to Sue EPA

Earthrise’s NOI to sue argues that the EPA Administrator has an obligation to approve or disapprove a state-submitted TMDL and that EPA has a non-discretionary duty to develop TMDLs where a state has decided not to submit any TMDLs. Under this “constructive submission” theory, Earthrise argues that CWA section 303(d)(2) requires EPA to develop TMDLs itself where a state has decided not to submit any TMDLs. Earthrise’s threatened litigation would raise the question of whether Ecology’s and EPA’s agreement to implement the forest practice rules to address nonpoint sources of pollution that result from forest practices is in fact a decision not to submit any TMDLs, or is instead a commitment to continuing to implement best management practices on forest lands as an alternative approach to improving water quality.

Earthrise’s NOI claims that forest practices cause temperature pollution in non-fish-bearing (Type N) streams, thereby violating water quality standards for these streams. If Earthrise files suit, it will seek to compel EPA to establish TMDLs for impaired waters receiving stormwater from prime timber lands. The effluent limitations necessary to achieve the TMDLs will likely be far more restrictive on forest practices than the current best management practices in the forest practices rules.

If EPA is ordered to adopt TMDLs on Washington waterbodies that are near forest operations, the TMDLs will establish pollution reductions for such waters. Such pollution reductions would almost certainly require nonpoint sources, such as forestry operations, to employ additional or different management practices to comply with the TMDL on a given waterbody. After over 20 years of certainty regarding standard best management practices that can be employed to protect water quality, this NOI to sue threatens to change the regulatory landscape significantly in Washington and beyond.

Those parties affected by significant changes to forest practices in Washington and other states relying on Clean Water Act Assurances should monitor this litigation and any subsequent rulemaking closely to understand the impact it will have on their operations. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for ‎your situation, you should contact an attorney.

[1] RCW 77.85.180(2) and 77.85.190(1).

[2] Schedule M-2, Clean Water Act Section 303 Assurances, p. 2 (1999) available in Appendix B of the FPHCP https://www.dnr.wa.gov/programs-and-services/forest-practices/forest-practices-habitat-conservation-plan.

[3] A copy of the Notice of Intent to Sue is an Appendix to this Article.

[4] 33 U.S.C. § 1313(d)(2).

[5] 33 U.S.C. § 1313(d)(1)(A).

[6] 33 U.S.C. § 1313(d)(1)(C); see also 40 C.F.R. § 130.7(c)-(d).

[7] Engrossed House Bill 2091(1999) available at https://www.dnr.wa.gov/publications/fp_hcp_deis_appendix_c.pdf.

[8] Id.

[9] Id.

[10] Forest Practices Habitat Conservation Plan, Ch. 1 (Dec. 2005) available at https://www.dnr.wa.gov/programs-and-services/forest-practices/forest-practices-habitat-conservation-plan (hereafter, “FPHCP”).

[11] FPHCP, Appx. B, Schedule M-2.

[12] Id. at 4.

[13] FHCP Ch. 1, p. 3.

[14] Id. at 4.

[15] Id.

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