Federal judge orders EPA to finalize fish consumption rule

SEATTLE – A federal judge on Wednesday set a timeline for the U.S. Environmental Protection Agency to finalize water-quality rules designed to protect human health in Washington state.

U.S. District Judge Barbara Rothstein found “agency dereliction” occurred when EPA proposed clean-water rules for the state in September but didn’t finalize those rules within 90 days as required by the Clean Water Act.

The state submitted a plan Tuesday, so the order by the judge means EPA must approve it or finalize its own plan for the state by Nov. 15.

EPA spokesman Mark MacIntyre said Wednesday the agency is still reviewing the ruling.

Environmental, tribal and other groups want EPA to reject the state’s plan and approve its own rule for Washington, saying the federal rules are more protective.

EPA has “already proposed a rule that they think it scientifically supported and we think is protective,” said Janette Brimmer, an attorney with Earthjustice representing Puget Soundkeeper Alliance, Pacific Coast Federation of Fishermen’s Association and others. Those groups sued the EPA in February to force quicker action.

“It’s got to decide thumbs up or thumbs down, we’re saying it has to be thumbs down because even EPA has criticized (the state plan),” she said.

Washington state has been working on the so-called fish consumption rule since 2010 and missed many of its own deadlines. In September, the EPA stepped in and proposed rules for Washington in case the state did not come up with its own in a timely manner.

In submitting a plan to EPA Tuesday, state Ecology Director Maia Bellon called the standards “protective and achievable” and said it could be approved by federal regulators.

Federal law requires rivers and other water bodies to be clean enough so people can safely swim and eat fish from those waters. The rule limits how much pollutants may be present in a body of water before there’s a threat to human health.

The state’s rules dramatically raise the current fish-consumption rate to 175 grams a day, which would protect people who eat about a serving of fish a day. It leaves the standard for mercury and PCBs as is.

Critics say the state’s plan fails to protect fish consumers from PCBs and mercury, and provides too many loopholes. Some facilities would have years if not decades to comply with the new rules.

Gov. Jay Inslee has said dischargers can’t be held accountable for chemical levels beyond their control, and that he also wanted to give businesses and others more time and flexibility to meet the standards.

“How can the EPA approve a lesser plan when their own plan has identified the need for a higher standard?” asked Chris Wilke, executive director of Puget Soundkeeper Alliance.