Court Asked to Reopen Decades Old Lawsuit

NWEA Asks Federal Court to Reopen Decades Old Lawsuit to Clean Up Washington’s Polluted Waters

Nearly three decades after first suing the U.S. Environmental Protection Agency (EPA) over its failure to clean up Washington’s polluted waters, Northwest Environmental Advocates has returned to federal court to enforce the Clean Water Act.  Over the last 28 years, NWEA has acted in a good faith to resolve this case and restore the quality to Washington’s rivers, streams, and Puget Sound.  Unfortunately the same cannot be said of the state and federal agencies.  Given their continuing foot-dragging, the decline of waters such as Puget Sound, and the fate of the endangered Chinook salmon and orca whales, NWEA needed to act.

NWEA first filed this lawsuit in 1991, based on Washington’s failure—and EPA’s failure to step in— to develop Total Maximum Daily Loads (TMDL), the science-based clean-up plans for waters identified as violating water quality standards.  That suit was settled, then amended  in 1994, and eventually settled again in 1998 with three documents—a consent decree, a settlement agreement, and a memorandum of understanding (MOU) between EPA and the Washington Department of Ecology.

In the 1998 agreement, EPA and Ecology agreed to complete all the TMDLs needed for waters listed as impaired on the state’s 1996 list over a 15-year period, approximately 1,600 TMDLs by mid-2013.  Although progress was made, TMDL development has come to a standstill, with zero completed in the last nearly four years.  At the rate that Ecology has completed TMDLs, it will take Washington over 190 years to complete plans for just the waters that are currently listed.  And the list keeps growing; the number of TMDLs needed now stands at 4,548.  The list of over-polluted waters has been growing at a rate that is three times the pace of TMDL development.

The Clean Water Act requires states—and EPA if states fail—to develop the TMDL clean-up plans that function as a kind of “pollution diet” that determines the level of wastewater treatment needed by the sources causing the pollution.  Once a TMDL has been completed, water pollution discharge permits must conform to the restrictions set out in a TMDL.  Ecology and EPA’s failure to complete TMDLs is directly tied to the failures of the state’s water pollution discharge permits to clean up the unsafe levels of pollution in Washington’s waters.

In addition, Ecology asserts that it relies on its TMDL program to control polluted runoff from nonpoint sources such as farming, logging, septic systems and the like.  That has proven to be a disaster.

Society is faced with many challenges these days.  If we are to succeed in addressing any societal ills, be it saving the orcas in Puget Sound or the Pacific Northwest salmon, we citizens need to hold our state and federal agencies—and our elected public officials—accountable.

NWEA is represented in this case by James Saul of the Earthrise Law Center at Lewis & Clark Law School and Andrew Hawley of the Western Environmental Law Center.

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