Rick Eichstaedt, Center for Justice

Rick Eichstaedt, Center for Justice

Spokane TMDL Attorney Meeting
Wednesday, April 16, 1:00pm – 4:00pm

EPA Region 10 Office

12th floor Visitor’s Center

1200 Sixth Avenue (at Seneca)


Adrianne Allen, Office of Regional Counsel, EPA

Jim Curtin, Office of General Counsel, EPA

Lee Schroer, Office of General Counsel, EPA

Ron Lavigne, Washington Department of Ecology

Doug Conde, Idaho Dept. of Environmental Quality

Lori Terry, Gregory, Foster Pepper PLLC

Rick Eichstaedt, Center for Justice

Craig Trueblood, K&L Gates

Craig Gannett, Davis Wright Tremaine LLP

Karen McGaffey, Perkins Coie LLP

Robert Beaumier, City of Spokane

Kris Holm, Water Resources Northwest

James Tupper, Tupper Mack Brower PLLC

Terry J. Harris, Kootenai Env. Alliance

Nancy Stricklin, Mason & Stricklin LLP

Ted Knight, Spokane Tribe of Indians

Sandra Poulson, EPA Organizational Effectiveness Team, Facilitator

Purpose: Engage all attorneys in substantive conversations about the issues identified below (and outlined in detail in the attachment), in the order in which the issues are listed.


1:00 Welcome and Introductions - Adrianne Allen and Sandra Poulson (10 min)

1:10Issues to be discussed

  • 303(d) Listing
  • Interpreting WA. WQ Standards
  • The use of a Riverine Assessment Point as a tool to assess relative contribution of upstream sources and Avista Dam.
  • allocations in the TMDL
  • NPDES permits
  • New Source Permits (e.g., the County’s proposed treatment plant) and the Ninth Circuit decision in Pinto Creek
  • NPDES Compliance Schedules Issues Regarding TMDL Implementation complying with downstream standards
  • TMDL Appeal Procedures

3:50Close Meeting

4:00 Adjourn
Attachment: Agenda for April 16, 2009, Attorney Meeting

Questions for Discussion at Lake Spokane TMDL Attorneys Meeting (4/16/09)

The following questions were submitted to EPA for discussion at the April 16, 2009, Attorneys Meeting. The questions have been sorted by general subject area. Questions were submitted by the following individuals:

Rick Eichstaedt, Center for Justice

Ted Knight, Spokane Tribe of Indians

Nancy Stricklin, Mason & Stricklin (representing City of Post Falls)

Craig Trueblood, K&L Gates (counsel for City of Spokane, but he states that the questions are on behalf of “most of the point sources and Avista”)

James Tupper, Tupper Mack Brower PLLC (representing Inland Paper Co. and City of Coeur d’Alene)

Craig Gannett- Avista

1. Issues Regarding 303(d) Listing

Is Lake Spokane or any other segment of the Spokane River above the Long Lake Dam to the Idaho border listed on Ecology’s 2008 303(d) of impaired water bodies (category 5) for phosphorus? (James Tupper)

2. Issues Regarding Interpreting WA. WQ Standards

a. How does Ecology measure compliance with WQS in rivers, lakes and streams? The draft EPA model scenarios look only at the bottom 8m of a “segment” of the reservoir and do not consider water quality above 8m or outside this “segment.” See, WAC 173.201A.200(1)(d)(iv) [“D.O. measurements should be taken to represent the dominant aquatic habitat of the monitoring site. This typically means samples should: (A) Be taken from well mixed portions of rivers and streams; and (B) Not be taken from shallow stagnant backwater areas, within isolated thermal refuges, at the surface, or at the water's edge.”] (Craig Trueblood)

b. Can designated and existing uses be protected, and therefore a water body be deemed to meet Washington WQS, without achieving specific numeric water quality criteria such as DO? (Craig Trueblood)

c. What is the regulatory basis for Ecology’s stated goal in managing Lake Spokane for TP other than to achieve the dissolved oxygen criteria? (James Tupper)

d. The Washington water quality standards provide a table “used to aid in establishing in establishing nutrient criteria” WAC 173-201A-230. Do Ecology and EPA interpret this table to establish numeric nutrient criteria that are applicable to the Spokane River and Lake Spokane? (James Tupper)

e. How do you interpret WAC 173.201A.200(1)(d)(iv)? In particular, how do you interpret "dominant aquatic habitat" and "typically"? (The regulation provides that: "D.O. measurements should be taken to represent the dominant aquatic habitat of the monitoring site. This typically means samples should: (A) Be taken from well mixed portions of rivers and streams; and (B) Not be taken from shallow stagnant backwater areas, within isolated thermal refuges, at the surface, or at the water's edge.") (Craig Gannett)

f. If all existing and designated uses of a waterbody are being maintained and protected, can that waterbody be in compliance with Washington's water quality standards without also achieving compliance with the numeric water quality criteria, such as for DO? If not, are there any circumstances in which a waterbody that does not comply with numeric criteria could be found in compliance with water quality standards? (Craig Gannett)

g. Do you agree that the use designated in WAC 173-201A-200(1)(a)(ii) ("core summer salmonid habitat") is being protected if salmonids are rearing in Lake Spokane? (The regulation provides that: "The key identifying characteristics of this use are summer (June 15 -- September 15) salmonid spawning or emergence, or adult holding; use as important summer rearing habitat by one or more salmonids; or foraging by adult and sub-adult native char. Other common characteristic aquatic life uses for waters in this category include spawning outside of the summer season, rearing, and migration by

salmonids.") (Craig Gannett)

3. Issues Regarding the use of a Riverine Assessment Point as a tool to assess relative contribution of upstream sources and Avista Dam.

a. Shouldn’t there be two TMDL’s? One of the “Riverine” section which is achievable by the point dischargers using AKART and the other for Lake Spokane/Reservoir section. (Nancy Stricklin)

b. May Ecology adopt a DO TMDL based on a “target” of 10 ppb TP that has not been adopted as a nutrient criterion under WAC 173.201A.230? (Craig Trueblood) or has it been adopted as a criterion using the methods identified by Ecology in its Guidance document. (Tupper) Does the use of 10 ppb TP as an assessment point mean that Ecology has adopted a revised P std. for Lake or adopted Ecoregion nutrient criteria or changed the oligitrophic status. (Tupper)

c. Assume that the TMDL leads to a Section 401 certification provision that makes Avista solely responsible for the effect of nutrients once they enter Lake Spokane when, in fact, nutrients from the dischargers' facilities and non-point sources have flowed downstream for decades, and will continue to do so even after the TMDL, albeit in substantially smaller quantities. Assume also that much of these nutrients settle on the bottom of the Lake, where they accumulate and continue to depress DO levels for years. Would such a provision in a Section 401 certification violate RCW 90.48.422(3)? (Which provides that: "With respect to federal energy regulatory commission licensed hydropower projects, the department [of Ecology] may only require a person to mitigate or remedy a water quality violation or problem to the extent there is substantial evidence such person has caused such violation or problem.") (Craig Gannett).

4. When did Ecology establish a goal to manage Lake Spokane as oligotrophic waterbody? What studies support this determination? (James Tupper) Has Ecology adopted a rule establishing its goal to manage Lake Spokane as an oligotrophic lake? (James Tupper)

5. Has Ecology determined that the 1987 TMDL for phosphorus applicable to Lake Spokane is inadequate to achieve water quality standards? (James Tupper) In the Cusimano 2004 pollutant loading assessment for the Spokane River and Lake Spokane Ecology states that “before establishing any modified phosphorus TMDL for the lake, the beneficial uses and an appropriate criterion to protect uses, including the time period(s) to protect, need to be determined.” What have Ecology and EPA done to make these determinations? (James Tupper)

4. Issues regarding allocations in the TMDL

a. What are the policy and/or legal justifications for an inequitable allocation of pollution reductions between the States of Idaho and Washington (i.e., why is a 50 ppb limit for Idaho and a less than 50 ppb limit being considered)? (R. Eichstaedt)

b. How will loading from regulated stormwater sources/CSOs be considered in the TMDL? (R. Eichstaedt)

c. Will the TMDL contain a daily load requirement as required by the D.C. Circuit’s Friends of the Earth, Inc. v. EPA decision? (R. Eichstaedt)

d. Do EPA rules allow for a TMDL with a waste load allocation for an existing point source that cannot be achieved using available technology? (Craig Trueblood)

5. Issues regarding NPDES permits

a. If Idaho doesn’t provide 401 certification of the permit conditions issued by EPA, what additional steps must EPA take? (Nancy Stricklin)

b. The proposals for phosphorus (“P”) discharge limitations include higher discharge limits in the winter months. How does EPA plan to justify the approval of higher P discharges in the winter months when it is not understood how those winter discharges affect summer dissolved oxygen (“DO”) levels. In particular, any NPDES permits issued pursuant to this DO TMDL will need to “ensure compliance with the applicable water quality requirements of all affected States,” 40 C.F.R. § 122.4(d), in this situation the Spokane Tribe is an affected State. Will higher discharges be allowed during the winter months when EPA or WDOE cannot “ensure” that those winter discharges will not negatively affect the Spokane Tribe’s DO in the summer months? (Ted Knight, Spokane Tribe)

c. Certain stakeholders are interested in “seasonal limitations,” given the holding in Friends of the Earth, Inc., v. EPA, 446 F.3d 140 (D.C.Cir. 2006), does EPA view this as a viable and legal option? (Ted Knight, Spokane Tribe)

d. Can effluent limits in an NPDES permit be averaged over periods greater than one month? Cf. 40 CFR 122.45(d) with EPA Guidance on “daily” loads for TMDLs (06/22/07). (Craig Trueblood)

6. Issues regarding New Source Permits (e.g., the County’s proposed treatment plant) and the Ninth Circuit decision in Pinto Creek

a. In regards to the County’s proposed treatment plant, how will the TMDL ensure compliance with the decision of the Ninth Circuit in the Friends of Pinto Creek v. EPA, which requires that the TMDL demonstrate available loading for new point sources and that all other sources, including nonpoint source if necessary, are subject to a schedule of compliance? (R. Eichstaedt)

b. Assuming that the TMDL demonstrates available loading and other requirements of the Pinto Creek are complied with, how will Ecology demonstrate that the offset requirements of WAC 173-201A-450 for the County’s proposed treatment plant be complied with, in particular requirements set forth in subsection (2)(b),(c), and (d) of the regulation? Does solely relying on offsets from septic removal require quantification of groundwater nutrient loads (which are currently assumed to be at natural background)? (R. Eichstaedt)

c. The non-point source reduction proposals developed during the last DO TMDL and the current DO TMDL do not guarantee any specific amounts of reductions of the pollutants that cause low DO. Previous modeling clearly showed that regulation and reduction of point source pollutants alone would not bring the Spokane River into compliance with applicable DO standards. Given the uncertainty around non-point source pollution reduction, how will the EPA approve any new point source dischargers in light of the holding in Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007)? (Ted Knight, Spokane Tribe)

7.Issues regarding NPDES Compliance Schedules

a. Assuming SB 6036 passes the Washington Legislature, what impact would it have in this process given that rulemaking needs to occur (schedule by Ecology for 2010) and that such a change would be subject to ESA consultation and EPA review/approval? (R. Eichstaedt)

b. Is a compliance schedule greater than 10 years allowed under EPA rules and Washington WQS? See SSB 6036 for additional clarification. (Craig Trueblood)

8. Issues Regarding TMDL Implementation

Is “Delta Elimination,” as articulated in the Foundational Concepts, allowed under EPA rules? (Ecology has agreed that “delta elimination” is consistent with Washington WQS via Memorandum of Agreement with Washington dischargers and draft TMDL). (Craig Trueblood)

9. Issues regarding complying with downstream standards

a. If a downstream State adopts standards that are more stringent that the CWA/EPA criteria, what notification is the downstream State required to give to the upstream State during the process to allow the upstream state to be heard and does the upstream State have the right to appeal the downstream State’s decision? (Nancy Stricklin)

b. Without incorporating modeling of the lower arm of the Spokane River into the DO TMDL, how will EPA or WDOE meet the requirements of 40 C.F.R. § 122.4(d) when the NPDES permits are issued? (Ted Knight, Spokane Tribe)

c. Does Ecology/EPA intend to demonstrate that the WLAs and LAs set forth in the TMDL will meet the Spokane Tribe’s water quality standards? (R. Eichstaedt)

10. TMDL Appeal Procedures

Can a TMDL be appealed? If so, what is the process? (Nancy Stricklin)


Spokane TMDL Attorney Meeting

April 16, 2009