A Summary of EPA's Consultation, Coordination and Outreach with Federally Recognized Tribes on the Restoration of Protective Human Health Criteria for Washington

I. 	Background
Clean Water Act (CWA) section 101(a)(2) establishes the national goal that water quality should provide for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water. To protect people from cancer and non-cancer effects from pollutants in drinking water and fish and shellfish, states must establish human health criteria (HHC) for their waters.   
In August 2016, Washington submitted HHC to EPA for review, which EPA partially approved and partially disapproved in November 2016. For the HHC that EPA disapproved, the agency promulgated federal HHC to protect Washington's waters. In response to a 2017 petition from several regulated entities, the agency reversed its prior partial disapproval of certain HHC in July 2019. EPA then withdrew the federally promulgated HHC in June 2020. The agency's actions in 2019 and 2020 are the subject of two legal challenges.  
On June 30, 2021, the Court approved EPA's request for the cases to be held in abeyance pending voluntary reconsideration and rulemaking by the agency. EPA has concluded that its 2019 and 2020 actions related to Washington's HHC were not based on a sound scientific rationale and were therefore not protective of the applicable designated uses in Washington.  
EPA is reinstating the protective and science-based federal HHC that EPA withdrew in 2020 to protect Washington's waters, including waters where tribes hold treaty-reserved rights to fish. 

II.	Consultation
EPA conducted a tribal consultation and coordination period from March 29, 2022, through June 3, 2022. To initiate the process, EPA sent letters via email to all the tribal leaders of the 36 federally recognized tribes in the State of Washington and the Columbia River Basin offering government-to-government consultation. EPA hosted a staff-level technical information session on April 18, 2022, from 5:00  - 6:30pm Eastern to kick-off the consultation process, receive input and answer questions from all interested tribes on the proposed rule.

III.	Comments Received
EPA received one letter from the Spokane Tribe of Indians and a joint letter from the Port Gamble S'Klallam Tribe, Lower Elwha Klallam Tribe and the Suquamish Tribe during the tribal consultation period. The letters provided the following high-level comments on the proposed rule: 
 Supported EPA's efforts to restore protective HHC in Washington based on sound science as it relates to the use of EPA-recommended relative source contribution (RSC) values and bioaccumulation factors (BAFs) and EPA's proposal to use the most protective cancer risk level (10-6) to derive HHC.
 Emphasized that the 175 g/day fish consumption rate is not a "conservative" or protective value for input in the formula to establish the HHC, but instead a "constructed" value and a very significant compromise on the part of tribes in Washington. The Tribes recommend additional language to clarify this position and the basis for it.
 Expressed concerns about the HHC for thallium, dioxin and polycyclic aromatic hydrocarbons (PAHs), and urged EPA to review the most recent data for dioxin and complete 304(a) criteria development for these pollutants quickly.
 Encouraged a more expeditious rulemaking.

IV.	Government to Government Consultation
During the tribal consultation period, EPA received requests from three tribes for government to government consultation. One tribe later rescinded their request due to high COVID levels in their community. The meeting with Port Gamble S'Klallam Tribe on May 12, 2022 was a hybrid meeting with two EPA personnel in person and all others virtually attending. The meeting with the Lower Elwha Klallam Tribe on May 31, 2022, was held virtually. During these consultation meetings, EPA provided a brief overview of the proposed rule to restore protective HHC in Washington and an opportunity for discussion. The following comments were provided during the consultation meetings and in written letters:

 The Port Gamble S'Klallam Tribe gave a presentation on subsistence uses, contaminant sources, cumulative exposure, including concerns about cancer and non-cancer risks from multiple pollutants, from point and non-point source discharges into the Salish Sea and its tributaries. 
 The Port Gamble S'Klallam Tribe stressed that the 175 grams per day fish consumption rate (FCR) used in the rulemaking is an under-representation of the actual consumption rate by tribal members and noted that the Tribe will advocate for a reevaluation of the FCR by the state during future triennial reviews. 
 The Port Gamble S'Klallam Tribe emphasized they would like to see the rule finalized expeditiously.  
 The Port Gamble S'Klallam Tribe expressed interest in EPA's current and future development of nationally recommended 304(a) criteria for per- and polyfluoroalkyl substances (PFAS) and dioxin. 
 The Port Gamble S'Klallam Tribe expressed concerns regarding the use of pesticides and herbicides in the Pacific Northwest. 
 The Port Gamble S'Klallam Tribe as well as the Lower Elwha Klallam Tribe wanted to ensure that there is durability of the federal rule, so it cannot be reversed again. 
 In addition to expressing concerns about water quality, the Port Gamble S'Klallam Tribe shared concerns regarding the Navy's proposed pier and the effects it may have on heavily used tribal shellfish beds. 
 The Lower Elwha Klallam Tribe expressed that they felt the environmental justice discussion in the federal register notice for the proposed rule was very good and much appreciated, and that in general, unlike the EPA actions in 2019 and 2020, the proposed rule is based on sound science. 
 The Lower Elwha Klallam Tribe stressed that the 175 grams per day fish consumption rate (FCR) used in the rulemaking is a negotiated rate and not something the tribes are bound to, as well as an under-representation of the actual consumption rate by tribal members. The Tribe also noted that the supporting documents for the proposed rule seemed to make this point clear except for a reference in footnote 49 of the draft rule. 
 The Lower Elwha Klallam Tribe emphasized that even though the rule is not "perfect," they encouraged EPA to finalize the rule expeditiously and asked EPA to apprise the Tribe in the coming months if the rule could be finalized sooner.  
 The Lower Elwha Klallam Tribe also raised concerns regarding water quality standards variances and site-specific criteria that may be adopted by the State and approved by EPA after the rule goes into effect.
 The Lower Elwha Klallam Tribe expressed interest in EPA's plans to develop revised nationally recommended 304(a) criteria for dioxin, thallium and polycyclic aromatic hydrocarbons (PAHs), so they are available for consideration in Washington's next triennial review. 
 Finally, the Lower Elwha Klallam Tribal Council discussed the removal of two dams on the Elwha River to aid the return of salmon to the upper watershed, and the concerns with fish traveling through polluted waters to get there.  
   
   

