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Groups File Lawsuit Over Washington’s Fish Consumption Rate, Water Quality Standards
Posted on Friday, October 18, 2013 (PST)

A coalition of clean water advocates and commercial fishing industry groups on Oct. 11 filed a legal challenge to what they say are U.S. Environmental Protection Agency water pollution rules in Washington that are inadequate to protect public health.

The lawsuit seeks an end to what the coalition says are years of agency delay in the face of robust evidence of health risk. The complaint, filed with the U.S., District Court for the Western District of Washington at Seattle, is posted at

Earthjustice attorneys Janette Brimmer and Matt Baca are representing the members of Waterkeepers Washington in the lawsuit. Washington Waterkeepers is a coalition of licensed Waterkeeper organizations in the state of Washington including Spokane Riverkeeper, Columbia Riverkeeper, Puget Soundkeeper Alliance, and North Sound Baykeeper. Also involved in the coalition along with the Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources.

According to coalition members, EPA is violating federal law by continuing to allow Washington’s Department of Ecology to grossly underestimate the state’s fish consumption rate used to set water quality standards necessary to protect human health. Consequently, water pollution limits fail to protect people who eat fish, the lawsuit says.

People who consume the most fish -- for example members of native Washington tribes, sport and commercial fishermen, and members of some immigrant communities such as Asian and Pacific-Islander -- face greater risk due to Washington’s inadequate standards.

“EPA’s inaction continues to allow polluters to discharge mercury, PCBs, lead and other toxins at levels that contaminate fish, pollute our waters, and threaten public health,” said Janette Brimmer, an Earthjustice attorney representing the coalition of groups. “We have a water pollution problem that needs to be fixed now, and it is EPA’s responsibility under the law to act when states fail to do so.

Everyone, including EPA and the state, agrees Washington’s fish consumption rate and human health standards need amendment.

In September 2012, the Washington State Department of Ecology began formal rule-making to adopt new human health criteria in the Water Quality Standards for Surface Waters of the State of Washington. The state's water quality standards guide how the state regulates water pollution. The human health criteria are intended help keep Washington's waters healthy for fish and shellfish and to protect people who eat them.

For more information on the state process go to:

Human health criteria are standards set on toxic substances to protect people who consume water, fish, and shellfish from Washington’s water bodies. They include substances such as metals, pesticides, and other organic compounds.

Washington’s water quality standards now lack human health criteria and have instead relied on criteria established in the federal 1992 National Toxics Rule that is mandated by the EPA.

“These federal criteria are out-of-date and EPA is requesting that states use new science and information to adopt updated human health criteria into their own state water quality standards,” according to the WDOE.

The state is now amidst a “very extensive public process” to amend its water quality rules, said the WDOE’s Sandy Howard. A draft update of the water quality rules, including fish consumption standards, is scheduled for release early in 2014, she said. The goal is a new set of rules that both protect human health and allow for necessary economic activity.

“There’s a lot of public process ahead,” Howard said. “We think we’re moving ahead in a smart way.”

The coalition of fishing and conservation groups, the Oct. 11 complaint, say there is an urgency.

“The problem is that the process has been going on for years,” said Earthjustice attorney Matt Baca. Levels of toxins in, as an example, the Columbia River are worrisome. The state of Oregon early this month issued a warning against eating resident fish such as bass that are caught in the proximity of the Columbia’s Bonneville Dam. Fish tested there have shown high levels of PCBs.

Exaggerating the problem is the fact that Washingtonians on average eat more fish than the residents of most other states, and the federal consumption rate that has long prevailed at the health standard is now “tied for the lowest in the country,” Baca said. Oregon, on the other hand, boosted its consumption standard to make it “the nation’s most protective rate,” Baca said.

“The current under-protective standard allows too much toxic water pollution,” said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen’s Associations. “This hurts the livelihoods of fish-dependent families, communities, and industries. A fish consumption standard that reflects reality not only makes good sense but would better protect fishing jobs and public health.”

During the summer, Waterkeepers Washington, a coalition of statewide clean water advocates, along with the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources, put the EPA on notice it could be sued under the federal Clean Water Act for failing to protect Washingtonians from toxic pollution entering Puget Sound, the Columbia River, the Spokane River and other waterways.

“Parents should be able to feed their families fish without fear of toxic exposure,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper. “Health experts are clear that the people most susceptible to health effects from toxics in fish are babies, children, and pregnant women. Despite the compelling evidence on the harm from toxics in fish, Washington state and EPA have sat on their hands for far too long. We’ve had enough.”

The state agency has for years used a fish consumption of 6.5 grams (less than a quarter ounce) of fish or shellfish a day -- a morsel that would fit on a snack cracker -- a rate the fishing and conservation groups say is universally recognized as inadequate. Such a standard says that eating that much locally caught fish, or less, does not present a health risk.

The monthly estimate is slightly less than 8 ounces, which amounts to a modest serving of fillet.

"The one-fillet-a-month estimate is ludicrous,” said Chris Wilke, executive cirector of Puget Soundkeeper Alliance. “A large number of local sport fishers, Native Americans, Asian Americans and others eat fish each week, if not each day. Fish and seafood play a significant dietary role for many Washingtonians, not to mention the cultural importance of local seafood for many of us. The current fish consumption rate set by the state does not reflect this and fails to protect fishing as a designated use of our waters.”

EPA has long advised states that they should not rely on that old, inaccurate estimate. Instead, states must set fish consumption standards using the best available data including surveys of actual consumption in local populations.

“It is long past time for EPA and Washington Ecology to actually do what federal law has long required -- step up to the plate and adopt a fish consumption rate that is based upon what people in Washington actually eat and that will improve water quality and protect public health,” said Wendy Steffensen of North Sound Baykeeper.

EPA has said that the local information must include populations that traditionally consume high amounts of fish for cultural, religious, or social reasons. That means in Washington, commercial and sport fishermen, tribes, and communities such as the Pacific-Asian community must be considered..

Surveys of local Native American tribes and Asian and Pacific Islander communities in Washington, dating back to the 1990s, show consumption rates greatly and regularly exceeding the one-fillet-a-month estimate -- even with severely reduced stocks and contamination of salmon, shellfish, and other fish relied upon by these communities.

"Each year EPA fails to fix Washington’s inadequate water pollution rules, it guarantees that dangerous levels of toxic contaminants will continue to flow into our waterways,” said Bart Mihailovich of Spokane Riverkeeper. “This in action endangers our citizens. It endangers wildlife. It threatens our economy. It’s hard to believe there is delay in the face of this kind of evidence.”

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