WSR 22-14-001

PREPROPOSAL STATEMENT OF INQUIRY

DEPARTMENT OF ECOLOGY

[Order 22-04—Filed June 22, 2022, 12:16 p.m.]

Subject of Possible Rule Making: The Washington state department of ecology is considering revising chapter 173-201A WAC, Water quality standards for surface waters of the state of Washington. We are considering the following revisions in this rule making:

We may amend other sections of chapter 173-201A WAC as necessary to support any revisions to the sections noted above.

We are considering revisions to aquatic life toxics criteria to provide additional water quality protection for organisms that live in water. We will:

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 90.48.035 Water pollution control, rule-making authority; and 40 C.F.R. 131.20 Water quality standards, State review and revision of water quality standards, requires states and tribes (with primacy for clean water actions) to periodically review and update the water quality standards.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: A. History of Aquatic Life Toxics Criteria: Under Clean Water Act (CWA) regulations, any revisions to states' surface water quality standards must be approved by EPA and may be subject to review of potential impacts to endangered species. The last major update to Washington's aquatic life toxics criteria was in 1992 in response to impending federal promulgation, called the National Toxics Rule, for states that had insufficient protections for certain toxic substances. Ecology opted to adopt the majority of aquatic life toxics criteria that were recommended by EPA prior to this promulgation, and EPA approved updates to some of Washington's aquatic life toxics criteria in 1993. The majority of Washington's aquatic life toxics criteria have not been updated since 1992 or prior. Since the National Toxics Rule of 1992, EPA has added additional toxic substances to their list of recommended criteria and provided several updates to previously established criteria. In this rule making, we are prepared to evaluate the current science for each of Washington's aquatic life toxic criteria and any new aquatic life criteria for toxic substances in this rule making.

B. Litigation: On December 29, 2021, the United States District Court ruled that EPA would be required to determine within 180 days if Washington's current aquatic life toxics criteria are consistent with CWA or if they need to be revised (NWEA vs. EPA, 2021, Case No. C20-1362 MJP). If they are determined to be inadequate, CWA requires EPA to promulgate new regulations for Washington, unless the state adopts them in the meantime.

Although litigation between EPA and Northwest Environmental Advocates (NWEA) continues, we are proceeding with the original plan to update the aquatic life toxics criteria after completing the human health toxics criteria updates and the recently completed salmon spawning habitat protection rule. Our preference is to do a state-specific evaluation of EPA's aquatic life toxics criteria recommendations and avoid federal promulgation of these criteria for Washington.

C. Triennial Review: During the last public review of ecology's draft workplan in 2021, we received overwhelming support from commenters for updating rules for aquatic life toxics criteria based on new information and approaches to aquatic life protection. We considered and received feedback on several approaches to rule making during our 2021 triennial review process. The different approaches to revising the aquatic life toxics criteria include:

We received public support for updates to aquatic life toxics in a single rule making and a strategy that involves two rule makings based on different chemical classes.

D. Approach to this Rule Making: We have decided to proceed with updating all necessary aquatic life toxics criteria in a single rule making. This decision is influenced in part by ongoing litigation for EPA to evaluate and potentially promulgate aquatic life toxics criteria. We anticipate that a single rule making of all aquatic life toxics criteria will be more efficient than multiple rule makings. Stakeholders, tribes, and other interested parties will be able to engage in the full scope of aquatic life toxic criteria considerations within one rule making, without ecology placing one toxic substance or group of substances at a higher priority than others.

In this rule making, we will compare EPA's nationally recommended aquatic life toxics criteria against Washington's current criteria to determine if updates are needed. We will also consider any draft EPA criteria that may not be finalized before the rule proposal phase of this rule making. Furthermore, we will evaluate previous Endangered Species Act (ESA) consultations and associated National Oceanic and Atmospheric Administration and United States Fish and Wildlife Service biological opinions from other Pacific Northwest states (such as Idaho and Oregon) to anticipate whether EPA national recommendations will meet ESA protection requirements.

Previous ESA consultation reports for criteria in other states have indicated that EPA's recommendations for some aquatic life toxics may not adequately protect ESA listed species. If particular toxics are not deemed "approvable" through ESA consultation, we will evaluate new scientific data, alternative methods to calculate criteria, and the new modeling tools as remedies to providing full protection to aquatic life species, including endangered species.

E. Rule-Making Scope: We have identified several aquatic life toxics criteria that should be reviewed based on EPA's updates to nationally recommended criteria. For several toxic substances, EPA recommended 304(a) criteria are more stringent than ecology's aquatic life toxics criteria. We will need to evaluate EPA recommendations and make a decision on whether to adopt them or conduct a state-specific modification of the criteria.

Table 1 shown below lists Washington's aquatic life toxic criteria and those criteria that should be evaluated based on more recent EPA updates. Table 2 below lists potential criteria that are not included in Washington's water quality standards for aquatic life toxics but are recommended by EPA. Ecology may choose to update criteria regardless of EPA recommendations based on new data and/or the need to adopt more protective values for endangered species.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: We will work with tribes to discuss, and seek input on, rule-making activities. Other coordinating federal and state agencies include EPA, National Oceanic and Atmospheric Administration, United States Fish and Wildlife Service, and Washington department of fish and wildlife.

Process for Developing New Rule: Ecology will follow the standard process for the adoption of rules under the Administrative Procedure Act (chapter 34.05 RCW).

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Marla Koberstein, Department of Ecology, Water Quality Program, P.O. Box 47600, Olympia, WA 98504-7600, phone 360-628-6376, for Washington relay service or TTY call 711 or 877-833-6341, email marla.koberstein@ecy.wa.gov, website Ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-201A-Aquatic-Life-Toxics-Criteria. Sign up to receive email notices https://public.govdelivery.com/accounts/WAECY/subscriber/new?topic_id=WAECY_61.

Additional comments: Interested parties can stay informed about the rule making and public involvement opportunities as described above. Ecology will extend an offer for government-to-government consultation with tribal governments during each phase of rule development.

June 22, 2022

Vincent G. McGowan, PE

Water Quality Program Manager