Numbers, science and fairness behind Idaho discharger challenge to DO TMDL
July 27, 2010
Forum Staff
In May, 12 years of often contentious regulatory action and negotiation culminated in EPA approving Washington Department of Ecology’s (Ecology) Dissolved Oxygen (DO) TMDL (also called a Water Quality Improvement Plan) for the Spokane River. Two months later, Idaho dischargers (Post Falls, Hayden Lake Sewer Board and Coeur d’Alene) are suing EPA in an effort to declare the TMDL void.
In a flurry of activity, agencies and conservation groups on both sides of the border are trying to explain and otherwise gear up for what has again become an uncertain future.
What’s At Stake
Further delay in implementing the DO TMDL (cleanup plan) will postpone meaningful water quality improvement in the Spokane River.
Beyond environmental considerations, the most effected stakeholder is Spokane County. Without a DO TMDL, the county can not request a permit to discharge effluent into the Spokane River. The County is relying on over sixty million dollars of capital loan funding from Washington State to complete construction of the plant. When receiving 16.2 million dollars of loan funding in June, the state noted that “Ecology will not sign a funding agreement with Spokane County for the $64,900,000 [remainder of funds needed for construction] without a final Ecology approved facilities plan.” Unless the county does not discharge to the river, such a plan can not be provided if the court void’s the DO TMDL. A moratorium on development in the County becomes a possible outcome.
Upgrades to other treatment plants would likely be placed on hold, resulting in improvements to Spokane River water quality again being delayed. From a discharger perspective, investing millions of dollars to upgrade facilities must be done with certainty that they will meet regulatory standards.
Why A DO TMDL?
The essential goal of the DO TMDL is to reduce oxygen-demanding phosphorus, ammonia and other materials being discharged into the Spokane River. The net effect of these reductions is to improved oxygen levels in Lake Spokane. Such an outcome will reduce the presence of aquatic plant growth (including occasional outbreaks of toxic algae blooms) and support of a native fishery appropriate to the area.
Point and Counterpoint to the Idaho Complaint
The Idaho suit is based on their long standing concerns regarding a combination of fairness, numbers, science and regulatory issues. Attached is the suit filed by Idaho dischargers in United States District Court for The District of Idaho.
The Forum has worked with experts to summarize both Idaho concerns and some counterpoints to those concerns. Counterpoints do not represent all perspectives nor should they be ascribed to all stakeholders. They are provided to give the reader a sense of differing viewpoints that underlie a very complex set of circumstances.
Fairness:
Point: Population growth projections by 2027 factor into determining phosphorus reduction requirements. Figures used for Idaho underestimate growth, further exacerbating requirements that Idaho discharges consider too stringent.
Counterpoint: Idaho utilities supplied the figures used. A late request from Post Falls and Hayden to change their figures was refused. The figures were refused because they use growth projections well above the historic norm and are not consistent with projections used in Kootenai County’s comprehensive plan. If the projections are incorrect, they can be adjusted in the mandated 10 year assessment.
Point: The TMDL gives Washington dischargers the option of eventually using “trading” and the latest research concerning bioavailability (the amount of phosphorus that can support plant growth) to meet standards for removing phosphorus and other contributors to dissolved oxygen. Idaho is not given this assurance.
Counterpoint: EPA and Ecology have held discussions and publicly invited Idaho to consider development of a joint trading program. How trading or bioavailability factors may be made available for Idaho dischargers would be defined when EPA issues draft permits for public comment. A lawsuit may delay this critical discussion, further confusing available options.
Science:
Point: Modeling results overestimate Idaho’s share of dissolved oxygen responsibility.
Counterpoint: Modeling used the most up to date science, with transparency assuring regular input from all stakeholders. The modeling isolated Idaho dischargers impact on DO in Lake Spokane and found that it took half of the allowed deficit in the reservoir.
Point: River flow projections used to model allocations for dischargers are not accurate.
Counterpoint: River flow projections intentionally use a “low-flow water year” to assure that a worst case scenario for water flow is protective of water quality standards. For the TMDL, 2001 was chosen as the low flow year. Changes to Post Fall Dam operations by Avista that increase flows in the river give added assurance that water quality standards will be met in Lake Spokane.
Point: Allocations for discharge of ammonia, another contributor to dissolved oxygen, are set at levels above what scientific evidence supports.
Counterpoint: Idaho dischargers’ ammonia targets are 3-4 times less stringent than counterparts in Washington. The allocation used is based on modeling results.
Numbers:
Point: Idaho dischargers are being asked to remove more phosphorus from their water treatment plants effluent (what is discharged into the river) than Washington dischargers.
Counterpoint: Except for Kaiser (which has a lower limit), all dischargers have the same phosphorus limits based on a monthly average of 50 ug/L. What looks like Idaho being given a higher standard is based on using a seasonal vs. monthly statistical average. Idaho dischargers requested a seasonal average, thus lowering the limit to 36 ug/L. Sampling frequency and fluctuation in effluent quality causes the required seasonal average to be lower than the monthly average. EPA has stated that Idaho dischargers can return to using a monthly average.
Point: The allocation for phosphorus removal is too high because Washington dischargers (not Idaho) should not be given credit for removing septic tanks to meet their phosphorus limits, which are regulated point sources.
Counterpoint: Septic tanks are not regulated as NPDES point sources in Washington State, but are regulated by regional health districts. The Shoreline Master Plan provisions currently being considered for Spokane County are specifically intended to protect surface waters from nutrient loading such as nitrogen and phosphorus. The Spokane County health district has, and perhaps should, use its authority to adopt stricter regulations to control potential phosphorus loading from septic tanks into the Spokane River and its tributaries.
Point: The margin of safety (the part of the regulation that assures standards can be met during peak discharge of phosphorus) is set too high.
Counterpoint: The margin of safety is consistent with regulatory standards that are based on a low flow year and assumptions that all phosphorus will be utilized (bioavailable) by algae and plant growth.
Regulatory Overreach:
Point: While EPA has the authority to issue necessary permits to Idaho dischargers, EPA does not have the authority to use modeling and load allocations developed in a Washington TMDL as the basis for permit development.
Counterpoint: Idaho dischargers and agencies fully participated in modeling that simulated dissolved oxygen impacts for the entire river reach in question (both Idaho and Washington). Both the Washington TMDL and EPA permits are based on this unified exercise.
Point: The wrong water quality standard for Lake Spokane is being used. The “natural condition” of the lake is one in which Long Lake Dam does not exist. Because of the dam, water temperatures to stratify when the weather grows hot and water stored to maximize power generation stratifies (three layers of temperature occur with denser, colder water sinking toward the bottom). Without the dam, stratification exceeding dissolved oxygen standards would not occur. Given the condition caused by the dam, the water quality standard should be based on “beneficial uses.” Specifically, the water quality standard should be for fisheries that can survive in this type of environment. The water quality standard Ecology uses is for salmonids, which is inconsistent with this type of water body.
Counterpoint: Ecology issued a memo explaining its use of the water quality standard for Lake Spokane. Ecology uses a standard that is protective of fish during the period when the lake stratifies, causing plant growth and fisheries losing oxygen at lower depths to be impaired. Ecology agrees that Long Dam contributes to this condition and therefore Avista also bears responsibility for meeting the standard. Development of the phosphorus assessment enables Ecology to define Avista’s responsibility. Had Ecology not established Avista’s responsibility, standards for all dischargers would be significantly more stringent and more difficult to meet. Regarding beneficial uses and the fishery, there are salmonids in Lake Spokane that would benefit from better dissolved oxygen conditions.
Adding it all up
In summary, Idaho dischargers contend that EPA has approved a TMDL that does not conform with standards set by the Clean Water Act. The result, they contend, are standards that are “unachievable,” and “… will severely restrict growth in the communities served …”
Other stakeholders believe that after 12 years of effort, the approved DO TMDL includes features of significant concern to several entities. That said there is support to move forward because, as a whole, the DO TMDL addresses water quality standards set forth by the Clean Water Act. Put differently, “Don’t let the perfect become the enemy of the good.”
Further, pilot results from the City of Spokane show strong promise that technologies can be employed to meet standards, and other tools are available if technology alone does not suffice. During implementation, adaptive management will be relied on to adjust permits and implementation requirements as necessary.
Additional background materials regarding the DO TMDL can be found at www.spokaneriver.net/dotmdl.