WSR 19-11-032

PREPROPOSAL STATEMENT OF INQUIRY

DEPARTMENT OF ECOLOGY

[Order 19-02—Filed May 7, 2019, 4:53 p.m.]

Subject of Possible Rule Making: The department of ecology (ecology) is beginning a rule making for multiple revisions to chapter 173-201A WAC, Water quality standards for surface waters of the state of Washington. This rule making would consider:

Amending the numeric criteria for total dissolved gas in the Snake and Columbia rivers: WAC 173-201A-200 (1)(f)(ii).

Amending specific sections of the rule to meet legal obligations in a 2018 stipulated order (see discussion below): WAC 173-201A-200 (1)(c)(ii)(B), 173-201A-210 (1)(c)(ii)(B), and 173-201A-240(5) Table 240 footnote dd.

Aligning the rule with the Washington state department of health (DOH) shellfish harvesting program: WAC 173-201A-210 (2)(b).

Revising and clarifying the descriptions of marine water aquatic life use designations: WAC 173-201A-210 (1)(a) and 173-201A-610 Table 610.

Other sections of chapter 173-201A WAC may be amended, as necessary, to support any revisions to the sections noted above.

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 90.48.035 provides clear and direct authority to ecology to revise the surface water quality standards (SWQS). Additionally, 40 C.F.R. 131.20 requires states and tribes with Federal Clean Water Act authority to periodically review and update the SWQS.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: We are considering multiple revisions to chapter 173-201A WAC, Water quality standards for surface waters of the state of Washington, which include: (Revision A) modifying total dissolved gas (TDG) criteria, (Revision B) meeting legal obligations, (Revision C) aligning shellfish criteria, and (Revision D) clarifying definitions.

(Revision A) Amending the numeric criteria for TDG in the Snake and Columbia rivers: The goal of this rule making is to improve fish passage for salmon and steelhead migrating downstream in the Snake and Columbia rivers. Dams release water through spillways over the dam and fish using the spillway have a better chance for survival compared to those that pass through the dams' turbines. However, spilling water also increases TDG that can negatively impact aquatic life. This rule making would aim to amend the TDG limit to allow for greater water flow through spillways for improved salmon migration, while ensuring that TDG limits minimize negative impacts to aquatic life through sufficient biological monitoring.

These revisions would:


•	Provide a new adjusted TDG criteria that could be applied at dams that operate increased spills for the purpose of improving downstream juvenile salmon and steelhead migration in the Snake and Columbia rivers.
•	Establish biological thresholds that must be met to apply an adjusted criteria up to one hundred twenty-five percent TDG.

(Revision B) Meeting obligations made in a 2018 United States District Court Stipulated Order of Dismissal between Northwest Environmental Advocates (NWEA), the United States Environmental Protection Agency (EPA), and ecology: We are considering revisions to sections of the SWQS as agreed to in a 2018 United States District Court stipulated order of dismissal (order) between NWEA, EPA, and ecology. In the order, ecology agreed to take action on several sections of the surface water quality standards by October 2021, including the following two revisions:


i.	Remove two subsections in the fresh and marine water temperature criteria related to an incremental temperature allowance from nonpoint source activities.


•	Although these provisions for nonpoint temperature increases have been in the standards for decades, they have not been applied in ecology's nonpoint protection program. The provisions may also conflict with our current antidegradation requirements that already prescribe a different temperature allowance when water is cooler than the assigned numeric criterion. For these reasons, ecology agreed to remove these subsections of temperature criteria and is including the revision in this rule making to be compliant with the order.

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Although these provisions for nonpoint temperature increases have been in the standards for decades, they have not been applied in ecology's nonpoint protection program. The provisions may also conflict with our current antidegradation requirements that already prescribe a different temperature allowance when water is cooler than the assigned numeric criterion. For these reasons, ecology agreed to remove these subsections of temperature criteria and is including the revision in this rule making to be compliant with the order.


ii.	Amend footnote "dd" in Table 240 to clarify that an adjustment of metals criteria (water effects ratio) pursuant to this footnote requires EPA approval pursuant to 33 U.S.C. § 1313(c).


•	Ecology agreed to amend the footnote in Table 240 to clarify that adjustments to metals criteria require EPA approval. EPA previously indicated to ecology that any efforts to revise metals criteria by developing water effects ratios would need to go through a separate rule making, which ecology agreed to. This amendment would codify the agreed-upon intent of this footnote and would not change how the footnote is currently implemented.

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Ecology agreed to amend the footnote in Table 240 to clarify that adjustments to metals criteria require EPA approval. EPA previously indicated to ecology that any efforts to revise metals criteria by developing water effects ratios would need to go through a separate rule making, which ecology agreed to. This amendment would codify the agreed-upon intent of this footnote and would not change how the footnote is currently implemented.

(Revision C) Aligning the rule with DOH shellfish harvesting program: We are considering a revision to portions of the shellfish harvesting use criteria to come into alignment with the DOH shellfish harvesting program and the associated Federal Food and Drug Administration's (FDA) National Shellfish Sanitation program. Ecology would adopt the same bacteria data averaging and duration periods as these programs.

DOH requested ecology to align this section of the surface water quality standards with state and federal shellfish harvesting program requirements. Due to changes that occurred as a result of ecology's January 2019 rule adoption for recreational use criteria (RUC), recreation and shellfish harvesting are now protected using different bacteria indicators. The DOH formal request was submitted during the comment period of the RUC rule making. Now that shellfish harvesting use criteria is "decoupled" from recreational use criteria, ecology has the opportunity to meet the DOH request.

This action to revise averaging and duration portions of the shellfish harvesting use criteria would simplify compliance goals by making FDA and Clean Water Act compliance requirements the same. This would minimize confusion between the two state agency programs that implement these federal programs to ensure that consumers and the public are protected.

(Revision D) Clarifying the descriptions of marine water aquatic life use designations: We intend to revise the aquatic life use designation descriptions for marine waters. In a 2003 rule making to update Washington's water quality standards, the restructuring of aquatic life use designations descriptions resulted in an unintentional change that applied these use designations to cold water fisheries. This error was recently discovered when the city of Everett petitioned ecology to revise dissolved oxygen criteria for marine waters. The city pointed out the discrepancies in the marine use designation descriptions, and upon review, ecology agreed that this was an unintended error and that the agency would correct [it] in a future rule making. This clarification would return the descriptions to their original intent and improve the ability for the public to apply SWQS appropriately.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: We will work with tribes, EPA, DOH, and other federal and state agencies that also coordinate implementation of SWQS to discuss, and seek input on, rule making activities and language development.

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 Chad Brown, Water Quality Program, P.O. Box 47600, Olympia, WA 98504-7600, phone 360-407-6128, people with speech disability may call TTY at 877-833-6341, people with impaired hearing may call Washington relay service at 711, email swqs@ecy.wa.gov, web site https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC173-201A-revisions, http://listserv.ecology.wa.gov/scripts/wa-ECOLOGY.exe?SUBED1=ECOLOGY-WATER-QUALITY-INFO&A=1.

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.

May 7, 2019

Heather R. Bartlett

Water Quality Program Manager