The Clean Water Act requires states to promulgate, and keep updated, water quality standards that protect designated uses of water such as recreation, drinking or fishing (and eating the fish caught). Washington State’s human health water quality standards, particularly those meant to protect consumption of fish, were woefully out of date and do not protect citizens of Washington for the amount of fish they actually consume. When a state is failing its obligations under the Clean Water Act, the Act requires EPA to step in.

In October 2013, after years of trying to convince the state to take action to amend its outdated and unprotective human health water quality standards, Earthjustice, on behalf of Waterkeepers Washington, a coalition of statewide clean water advocates, and the Pacific Coast Federation of Fishermen’s Associations, commenced suit against the EPA in federal district court. Earthjustice argued that EPA has determined that Washington fish consumption rate (the amount of fish people in Washington actually consume) and human health water quality standards are inadequate and in violation of the requirements of the Clean Water Act. Based on that determination, EPA had an obligation to step in and promptly take over the process.

According to the Waterkeeper groups, EPA is violating the law by allowing Washington’s Department of Ecology to grossly underestimate the state’s fish consumption rate, which in turn is used to set water quality standards for various toxic pollutants such as PCBs, mercury and arsenic. The State of Washington incorrectly assumes its citizens eat one very small meal of fish a month. In Washington State, fish consumption is estimated at a scant 6.5 grams (less than a quarter ounce) of fish or shellfish a day—a morsel that fits on a snack cracker. The monthly estimate is slightly less than 8 ounces—a modest serving of fillet. Under that estimate, less stringent water pollution limits are set.

In fact, surveys show that many Washington citizens eat far more fish and shellfish in a month and certain groups such as tribal members and members of the Asian community eat orders of magnitude more fish than estimated by the state. Surveys of local Native American tribes dating back to the 1990’s show consumption rates greatly and regularly exceeding the one-fillet-a-month estimate even with severely reduced stocks and contamination of salmon, shellfish and other fish relied upon by these tribes. EPA requires the state to use surveys to set fish consumption rates and water quality standards.

By assuming fish consumption is so low, Washington allows too much of pollutants that accumulate in fish and shellfish tissue; therefore, Washington’s human health water quality standards are not protective for people who eat fish.