(April 23, 2019) – The US Environmental Protection Agency (EPA) announced in a letter dated April 4, 2019, that it was approving Idaho’s new and revised human health criteria, which is essentially a complete reversal from the position taken by the last administration.
During the last few years of the Obama Administration, several states encountered resistance from EPA as they worked to develop water quality criteria for the protection of human health. While the Clean Water Act (CWA) authority to set criteria rests solely with the states, EPA was pressing the states to change key aspects of their human health criteria to be more consistent with federal policy preferences.
Despite EPA guidance that allowed states some flexibility in areas such as establishing fish consumption rates and selection of an acceptable incremental cancer risk level, the Obama EPA pointed to tribal treaty rights in an effort to push the states to establish more protective standards.
In Idaho, EPA had indicated in January 2017, just before the Trump Administration took office, that what the state had proposed for its revised human health criteria would ultimately not be approved by EPA. As it had done previously in Washington State, EPA was hoping that an early signal of disapproval would convince the state to back down on its proposal.
NACWA weighed in on the Idaho proposal, as well as earlier efforts in Washington, underscoring that Idaho had “done its homework to consider the current science and EPA guidance and has made the tough policy and risk decisions to develop a rule that it believes protects human health for the citizens of the state and Native American tribes within the state—responsibilities that lie squarely within Idaho’s purview.”
In performing its CWA-required review function—whether during the rule development process or during its official standards review—NACWA believes EPA must not overstep its authority and substitute its policy preferences over legitimate state policy decisions that are “consistent with the applicable requirements” of the CWA. The Agency’s April 4 letter approving Idaho’s standards reaffirms the state’s lead role, and includes language that will help in other states where this issue has arisen.
One such state is Washington, where recent developments suggest that EPA may also be moving toward backing away from its federal promulgation of standards for that state. EPA opened a public comment period on April 8 on a proposal to reverse its 2016 decision on the state’s standards that led to the federal promulgation, but then posted a letter saying that no approval to open a docket on the issue had been given.
Industry groups have petitioned EPA to reconsider its federal promulgation and the positions taken in Idaho would certainly indicate that EPA may back away from its rule in Washington. But Washington state officials are now signaling that they do not support a reconsideration of the rule, even though it would allow them to proceed as they had originally intended, so it is unclear what lies ahead for that state.
The Idaho decision may also be helpful in Maine and a handful of other states where these human health criteria issues have been front and center. NACWA is continuing to track the issue and will provide updates when available. Members with questions can contact Chris Hornback, NACWA’s Deputy CEO.