Tacoma has sued the state Department of Ecology over proposed requirements for wastewater treatment plants that discharge to Puget Sound, a new regulation the city said could cost up to $1 billion to implement.
The lawsuit is over a draft permit Ecology has developed to control excess nutrients, which the agency has said flow from those plants to Puget Sound and hurt the environment.
“Ecology’s stated intention is that the General Permit shall apply to nearly 60 domestic wastewater treatment plants discharging into Puget Sound,” the lawsuit said. “Each of these plants is already required by the CWA (Clean Water Act) to discharge pursuant to an individual NPDES (National Pollutant Discharge Elimination System) permit.”
The lawsuit was filed in Pierce County Superior Court this month by Tacoma and the Alderwood Water and Wastewater District, which serves southwest Snohomish County.
City of Tacoma Environmental Services director Mike Slevin said in a statement that the utilities believe Ecology needed to – and did not – follow the rule-making process in the state administrative procedure act for three rules it adopted in January 2019 related to nutrient removal.
He said that rule-making process ensures the opportunity for public input. It would require Ecology to consider possible fiscal impacts and how plant operators and customers would be affected, Slevin said, as well as “how the rules might impair economic development and compliance with the Growth Management Act,” among other things. They’d also be required to consider alternatives, he said.
Ecology spokesperson Colleen Keltz said in a statement: “Discharges of excess nutrients from human sources, particularly nitrogen, to the Salish Sea from WWTPs (wastewater treatment plants) are contributing to low oxygen levels, stressing aquatic life, and threatening to expand dead zones. Also, excess nutrients can increase seawater acidification, cause changes to the food web, and increase harmful algal blooms.”
Those issues are related to salmon and orca recovery, the permit project’s website said.
“We are confident in our approach and in the public processes we are using to address nutrient pollution in Puget Sound through both the nutrient forum and water quality permitting,” Keltz said. “We will continue to work with all of Washington’s Salish Sea communities and their wastewater treatment facilities to address nutrients.”
Slevin said the city recently estimated that the costs associated with facility upgrades for nutrient removal would be $319 million to $1.314 billion.
“These improvements, however, would not increase existing capacity to accommodate future growth,” he said. “It is also expected that the cost to maintain and operate these upgrades would increase by $1.1 million or more annually. The additional costs associated with nutrient removal will have a substantial impact on all ratepayers by doubling or tripling rates to fund the added capital and administrative costs.”
His statement also said the utilities are committed to working with Ecology to protect the water quality and marine habitat of Puget Sound.
“During the past 20 years, ratepayers have made significant investments totaling $359 million to improve the two Tacoma wastewater treatment plants and ensure they are managed and operated in a way that protects Commencement Bay and the Puget Sound,” he said.
Mindy Roberts, Puget Sound director for the Washington Environmental Council, said some places have already made upgrades for nutrient removal or started to prepare for them, seeing that it was on the horizon. For instance, she said, the Olympia wastewater treatment plant’s nutrient-removal technology went online in 1994.
“We need to start preparing for the future now with wastewater treatment rather than kicking the can down the road,” Roberts said. “… Yes, these large-scale infrastructure projects are expensive, but they’re also fundamental for clean water protections.”
Tacoma’s cost estimates, she argued, have had “a lot of zeros after them, and when I’ve asked for the basis of them, they have not been shared.”
Roberts also talked about the importance of including state and federal financial resources. As the United States considers large-scale infrastructure funding, Roberts said, “We think it’s time to invest more in clean water infrastructure as well.”
Keltz said Gov. Jay Inslee’s proposed 2021-2023 budget includes a $9 million grant program that will help facilities with “nutrient reduction planning and optimization projects.” She also said Ecology’s advisory committee, environmental caucus and utility representatives “have continued to meet to explore other strategies to secure additional funding, and we will support their proposals to the fullest extent that we can.”
An informal public comment period about the draft permit ends March 15. Ecology expects a formal draft general permit to be available for public comment this spring, and that a final decision will be made later this year.
Ecology is not proposing major infrastructure investments for the first five-year permit, according to the project website.
“Depending on the current capabilities of each individual WWTP and their community’s plans for growth and development, they will have a reasonable amount of time to plan appropriate upgrades or other improvements, while remaining in compliance with their permits,” the website says.
The lawsuit argues that the agency doesn’t have authority “to require Tacoma or Alderwood to obtain coverage under a Clean Water Act general water quality permit, also known as a National Pollutant Discharge Elimination System (“NPDES”) permit, for discharges from the Tacoma and Alderwood wastewater treatment plants that are already covered under individual NPDES permits. The issuance of a general permit with mandatory coverage requirements is contrary to both state law and federal law regulating the authority of Ecology to manage a delegated NPDES permitting program.”
The permit project website says while all the facilities already have NPDES permits, only a few of those require nutrient controls.
“The new General Permit will focus only on controlling nutrients and work in conjunction with the broader individual permits for each facility,” the website says.
Previous lawsuit
A similar lawsuit was filed at the end of December in Thurston County Superior Court by Tacoma, Alderwood, Kitsap County, Birch Bay Water and Sewer District in northwest Whatcom County, and Southwest Suburban Sewer District in King County.
That lawsuit asked in part for a “declaratory judgment that Ecology’s adoption of the rules exceeds its statutory authority and is arbitrary and capricious, and that Ecology may not lawfully impose nutrient loading caps or an impairment determination for Puget Sound marine waters or municipal wastewater treatment plants in a general discharge permit or individual discharge permit for municipal wastewater treatment plants without first engaging in rulemaking under the APA (Administrative Procedure Act).”
Slevin said the rules related to nutrient removal adopted a new dissolved oxygen standard throughout Puget Sound, determined “all Puget Sound dischargers were causing or contributing to the impairment of the Puget Sound,” and “determined that Ecology would impose nutrient (Total Inorganic Nitrogen) effluent loading limits on all Puget Sound Dischargers.”
Heather Earnheart, the Alderwood wastewater treatment facility manager, said in a statement: “The District supports Ecology’s efforts to identify and address the impacts of nutrients being discharged to Puget Sound from all sources and we are committed to participating in scientific studies to determine how nutrients impact the aquatic habitat. We also recognize Ecology’s responsibility to maintain compliance with water quality standards. However, Ecology missed a vital step essential to good and transparent government that needs to be addressed and is required as a matter of law and public policy.”
