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Posts Tagged ‘TMDL’

“Take all the acronyms, the scientific formulas, the political agendas at cross purposes and the bitter cross-state line disputes. Flush it all down the toilet.”

Or so the ever-helpful CDA Press editorialized this past Sunday.  The paper is evidently calling for some sort of misguided citizen uprising against yet-to-be-determined sewage rate increases caused by yet-to-be-permitted sewage treatment upgrades. Wildly missing the mark though, the CDA Press does the region no favors.

In fact, some 13 years into an impossibly complicated process, the polluted Spokane River and particularly he green-slimed and oxygen-starved Long Lake finally have a reasonable cleanup plan that requires significant pollution reductions to all the dischargers on the River, including Idaho’s. Despite the editorial’s unfounded and hyperbolic claims, Idaho municipalities discharging onto the River are already committed and are hard at work designing and testing improved sewage treatment technologies.

Indeed, the reality ignored by the CDA Press is that there is no circumstance under which any of the dischargers in the Spokane River will be avoiding additional levels of sewage treatment. These improvements to wastewater infrastructure are being implemented on both sides of the state line. The actual discharge limit that will be written into Idaho permits is still a hard-fought and complicated question, but there is universal agreement that whatever the limit is, it will be much much lower than it is now.

In fact, the Washington Department of Ecology has been open to innovative ways to accommodate polluters on both sides of the border. Enabling concepts like bubble permits, seasonal averaging, pollution and pollutant trading, and bioavailability adjustments, the regulators are bending over backwards for pollution dischargers.

Most significantly, the sewer rates aren’t set yet. In fact, the City of Coeur d’Alene has appointed an advisory committee to review how the sewer rates and necessary infrastructure investments will be phased and financed. Rates will certainly be going up, but how much and how fast are still very much open questions.

These investments are certainly not easy. And they are unquestionably going to be expensive. But it’s the right thing to do for our river if we are going to continue to use it to dispose of our sewage. The hyperbole and nonsense being spewed by the CDA Press is not helpful.

 

 

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We got word over the weekend that the Spokane Riverkeeper is intervening in the pending TMDL lawsuit brought by Idaho polluter-plaintiffs Post Falls, Coeur d’Alene, and the Hayden Area Regional Sewer Board.  Recall that the Idaho dischargers filed a complaint in federal district court challenging the dissolved oxygen total maximum daily load (TMDL) issued for the Spokane River.

The litigation, which has cost North Idaho ratepayers and taxpayers more than $800,000 in legal and consulting fees, mostly asks that North Idaho dischargers be subject to the same standards as Washington’s.  This is arguably the case already. But regardless of the outcome, the Idaho plaintiffs will still need to install the very same pollution control equipment.  Notably, the Idaho dischargers are also participating in discussions of pollution trading — to be premised on the very TMDL they are challenging in Court.

We hear that settlement discussions are scheduled between EPA and the Idaho plaintiffs, and the many other lawyers which are necessarily now involved. The formal intervention will allow the Riverkeeper to participate in the settlement discussions that may – or may not – allow the Idaho dischargers to end their quixotic quest to modify the TMDL to their liking. Then, hopefully, we can get on with the cleanup of the river.

 

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As required by the Clean Water Act, the Department of Environmental Quality has just issued its draft “Integrated Report” on the state of water quality in the State of Idaho.  The utter failure of Idaho to do necessary water quality monitoring is probably the most glaring finding.

According to the draft report, of  5747 distinct waterways in Idaho, 2108 have insufficient data to determine the threshhold question of whether Clean Water Act standards are being met. That corresponds to 33,523 miles of rivers and 186,677 acres of freshwater lakes that have insufficient monitoring data or any other information on which to determine what measures, if any, are needed to protect those waterways.  The new report seems to show no improvement whatsoever from the 2008 report in which 37% of state waterways had not been assessed. Meanwhile, some 900 waterways — another 16,659 miles of rivers and 208,102 acres of freshwater lakes — are impaired but do not yet have a cleanup plan.

To put it more plainly, more than half of Idaho’s waterways are suffering from Idaho DEQ’s failure to properly administer the Clean Water Act.

But that’s not all. What about the other half? The report indicates that 1,242 waterways are, in fact, impaired and need cleanup actions to restore water quality.  In this category, there are 20,004 miles of rivers and 148,257 acres of freshwater lakes that have an approved TMDL cleanup plan.  But very little in the way of TMDL implementation is evident.

We know that Idahoans care deeply about water quality. The failure of DEQ to accomplish the very basic minimum requirements of the Clean Water Act should be unacceptable. The legislature, which has zeroed the water monitoring budget for two consecutive years, needs to provide the resources to DEQ to do its work before the U.S. EPA, or a federal court, is forced to step in.

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Admittedly, it is difficult trying to explain to laypersons why the Spokane River TMDL is reasonably fair even though it seems a little tilted toward Washington’s polluters. But then we read an outstanding overview of the issues on the Spokane River Forum’s very informative website. With an issue-by-issue summary, in a point/counterpoint format, the Forum describes the issues raised by the Idaho polluters in their lawsuit, and what each side says about them. The whole article is well worth reading, even if still a bit technical. But on the fairness issue, it’s worth highlighting the discussion on a couple of points we hear raised over and over again:

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: 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.

We’ll say it again. This just doesn’t seem worth litigating.

UPDATE 8/5: The Coeur d’Alene Press reports that the municipalities have spent a stunning $800,000 fighting the TMDL so far. And they’ve just gone to Court.

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 The City of Post Falls and the Hayden Area Sewer Board followed through on their promise to file a lawsuit in federal court challenging the legitimacy of the 12-year effort to establish a cleanup plan for the Spokane River. The City of Coeur d’Alene just decided it will be joining in as well.

 The Idaho polluters’ lawsuit is drawing high-powered opposition. The U.S. EPA and Washington’s Department of Ecology will certainly defend the cleanup plan, but  Spokane County has also lawyered up and can be expected to vigorously defend their interests. Other big guns like Avista and Inland Paper are likely to send lawyers as well.

 In a previously-scheduled, get-to-know-you meeting with environmental groups in Spokane yesterday, relatively new Washington Department of Ecology Director Ted Sturdevant and regional Ecology director Grant Pfeiffer reiterated their support for the TMDL plan, and said that they would be defending it in court. Pfeiffer indicated that after 12 years of study and negotiation, the foundation for the TMDL has largely solidified, and that he was confident that it would hold up under legal scrutiny.

 KEA has obtained a copy of the 53-page Post Falls complaint and we are currently reviewing our own legal options. But the Idaho dischargers have picked a legal battle that will be very expensive to fight and very difficult to win. And, as we’ve said before, no matter the outcome of this legal tussle, the Idaho polluters have very expensive upgrades to make to their pollution control equipment. Our prediction is that, win or lose, all the spending on lawyers now will not make a dime’s difference later.

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Spokane River through downtown Post Falls

 At last night’s City Council meeting, and without any public debate whatsoever, the Post Falls City Council voted unanimously to file a lawsuit over the Spokane River cleanup plan. The long-awaited and controversial TMDL (total maximum daily load) setting a pollution budget for phosphorous was set by the Washington Department of Ecology some months ago, and pollution permits for Idaho dischargers into the Spokane River were expected to be issued by EPA later this summer.

 What happens ultimately is anyone’s guess, but with Post Falls heading to the courtroom, what likely happens next is that everyone else will head to the courtroom too.

 A fundamental characteristic of a TMDL is that there is a sort of zero-sum nature to it. If more pollution is allowed from one pollution source, then the other sources of pollution will need to be reduced accordingly. With Post Falls heading off to court, each of the parties will need to go to court too, to protect their own interests. A judge will now need to sort out the highly technical arguments of not only Post Falls, but municipal dischargers in Spokane and Coeur d’Alene, industrial dischargers in Spokane, environmental groups, and regulators.

 Even if the lawsuit is successful, what will Post Falls win? The very most a judge will be able to do is simply send the TMDL back to the Washington Department of Ecology – the agency that wrote it – to be re-worked. After some 12 years of this work, the likelihood that there will be any major changes ranges from slim to none. Indeed, there is no circumstance whatsoever in which any of the Spokane River dischargers will be relieved of expensive upgrades to their pollution controls.

 At this point, money spent on lawyers is money down the drain. Money spent on wastewater engineers will at least give some return on investment. Meanwhile, until this all gets sorted out and the cleanup gets underway, toxic algae and oxygen depletion will continue to choke the river.

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As expected, the EPA approved the Washington Department of Ecology’s formulation of a TMDL pollution budget for the Spokane River’s phosphorous-caused dissolved oxygen problems. The reactions from polluters, politicians, and conservationists on both sides of the state line:

EPA endorses the Ecology plan — Spokesman Review

Idaho Senators Crapo and Risch don’t like it — Huckleberries Online

The CDA Press doesn’t like it either — CDA Press

The actual EPA letter approving the plan — US EPA

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