Ecology’s Nutrient General Permit for Puget Sound
Chapter 5, In Which the Agency Proposes to Knowingly and Intentionally Violate the Clean Water Act
by Nina Bell • April 18, 2020 •
When it comes to agencies’ not doing their jobs, there are two kinds of failures: the sins of omission and the sins of commission. Year after year, EPA and the Washington Department of Ecology give us stunning examples of the failure to take actions to protect and clean up Puget Sound. But today I’m writing about Ecology’s proposal to flat out break the law through taking an action.
The action is Ecology’s proposal to issue a nutrient general permit that will cover all sewage treatment plants discharging to Puget Sound. “Great stuff!” wrote most of the citizen group commenters to Ecology’s open-ended query of “should we do this?” NWEA’s grumbly response: 27 pages explaining why Ecology’s proposal will not meet the requirements of the federal Clean Water Act.
Are we just picking nits? Answer: No, of course not! Ecology has announced repeatedly in recent months that it has no intention of issuing a nutrient general permit that meets legal requirements. These would be the very legal requirements that will result in controlling nutrient pollution in treated sewage discharged to Puget Sound . . . at the earliest possible time . . . to the level necessary to protect orcas, salmon, shellfish, and the food web. Doesn’t sound like nit-picking to me.
What is Ecology planning to do? Let’s start with offering that agency calling card “transparency” with one hand and taking it back with the other. In its December 19th web-based meeting, Ecology emphasized the importance of collaboration and stakeholder engagement, meaning “we’re all going to work together and share information.” Once it got to the Q&A period, however, Ecology switched to answering almost every other question with: “you will have to work with your permit writer to determine that.” In other words, citizens are locked out of that discussion. So much for the promised transparency.
Substantively, Ecology acknowledges that NWEA’s efforts have forced them to act. The agency cites two sets of promises it intends to keep. Ecology announced the first set when it denied a NWEA rulemaking petition in January 2019 saying that newly issued permits would include:
(1) a cap on nutrient loads at current discharge levels;
(2) planning for sewage treatment plant upgrades; and
(3) permit limits on nitrogen for the few sewage plants designed to remove nitrogen.
The second set of promises comes from Ecology’s response to NWEA’s comments on its proposed 401 certification for an EPA-issued permit for Kitsap County’s Suquamish sewage treatment plant:
(1) a cap on nitrogen loads at current discharge levels;
(2) a requirement to “optimize” pollution reductions to comply with the nitrogen cap; and
(3) a plan-for-a-plan for treatment plant upgrades.
OK, that’s not nothing and we’re glad to accept credit for forcing Ecology to this point. But it’s well short of what the law requires, and what Puget Sound needs.
It is Ecology kicking the proverbial can down the road when the Clean Water Act requires action now. The Clean Water Act requires actual pollution limits, not “caps” that reflect the current discharge pollution loads that are currently causing violations of water quality standards. The Clean Water Act requires plans, not plans-for-plans. The Clean Water Act allows for time to come into compliance so long as it is “as soon as possible,” not as soon as Ecology stops dragging its feet.
The bottom line is that—as Ecology admitted in a public meeting—it is planning on breaking the law, waiting for NWEA to take it to court, and then buying an additional two to three years to issue a legal permit. I guess you could say that when it comes to its rather sick strategy of postponing the clean-up of Puget Sound, Ecology was at least transparent about that.
To be continued…
