# Northwest Indian Fisheries Commission

6730 Martin Way E., Olympia, Washington 98516-5540 Phone (360) 438-1180 www.nwlfc.org FAX# 753-8659

Mr. Dennis McCierran Regional Administrator United States Environmental Protection Agency Region 10 1200Sixth Avenue Suite 900 Seattle, WA 98101



# .. Dear



# AJ~r Mclerran: August 24, 2012

On behalf ofthe Northwest Indian Fisheries Commission (NWIFC) and its membertribes, we write to express our deep dissatisfaction overthe Departmentof Ecology's (Ecology) recently announced changes to the adoption of revised fish consumption rates (FCR) in Washington State. While we strongly support Ecology's decision to begin development ofhuman health-based criteria in the surface water quality standards, we are disturbed by the planned revisions to the technical support document and sediment management standards. We viewthe state's abrupt change in course as a prioritization of industry concerns over protection ofhuman health and tribal treaty rights. Ecology's newly adopted strategy will slow progress in the development ofa more accurate fish consumption rate and obscures the positive results we havejointly accomplished during the last several years, leaving the resolution of this issue to avague stakeholder process and the uncertainty offuture state administrations. Forthis reason, the tribes request your agency's engagement in the development ofa FCR for use in setting waterquality standards that is protective oftribal peoples, and their rights and resources.
The ultimate purpose offish consumption rates is to protect human health. No one questionsthe fact that Washington's currentfish consumption rate is not accurate. Tribes acknowledge the difficulty of adopting and implementing revised standards, and have engaged in and supported extensive governmental and stakeholder processes. Tribes are also mindful ofand committed to the economic health ofour region- howeverwe will not prioritize economic gain forsome overthe health ofour people orthe environmentthat sustains us and our economies.
Tribal governments in western Washington are particularlyfrustrated with Ecology's change in course as they have committed significant effort overthe last two years, working with Ecology to present the science and build a responsible and meaningful path forward. Initiallytribal workfocused on establishing a FCR as part ofthe state's water quality standards. Ecology, bracing forthe industry pushback they knew would occur, forwarded atimeline delaying the work ofwaterquality rule development and proposed prioritizing the development ofatechnical support document and rule-making forthe state's sediment management standards. Tribes were initially reluctant to accept this shift in emphasis, but eventually agreed to support these efforts based on acommitmentfrom Ecology thatthe sediment management standards would ultimately speed the development ofhuman health criteria in water qualitystandards. Now Ecology has reversed course again without any prior discussion with the tribes

. The tribes were repeatedly assured by Ecology that, at a minimum, the state would complete revised FCRs in the technical recommendations and in the sediment management standards before the completion ofthe current state administration'sterm. Unfortunately, Ecology's new approach nullifies these assurances and commitments. Ecology has removed adefault FCR from the sediment management standards, and has delayed the completion ofthe Technical Support Document on Fish Consumption Rates-strippingthe document ofimportant summary results and conclusions. This pathway is completely contraryto commitments made to tribes as recently as the June 2012 Centennial Accord meeting at Suquamish.
The continued delay leaves the residents ofWashington exposed indefinitelyto inadequate and inaccurate standards forthe protection of human health, with tribes at particularly high levels of risk. This delay also leaves Washington's water quality standards noncompliant with the basic mandates of the Clean WaterAct, which require water qualitystandards to be set at levels protective of human health. The tribes are deeply disappointed atthe abrupt change in course that Ecology has taken and the lack oftribal consultation in making these decisions.
The fish consumption rate issue has become a remarkable illustration ofwhy the treaty tribes in western Washington have developed the "Treaty Rights at Risk" initiative as acall to action. State agency processes are not able to accomplish the work necessary to protect tribal people, their homelands or the resources on which their rights and cultures depend. The tribes require thatthe Federal Government carry out its obligation to tribes to protect tribal treaty rights by using federal statutes and authoritiesto establish a FCR for use in setting waterquality standards.
Tribes are now lookingtothe Environmental Protection Agency forfurther engagement on the establishment ofaccurate and protective fish consumption rates in Washington State in atimely
manner. Ecology, tribes, and others have invested years ofworkto develop an accurate and scientifically sound default FCR with poor results to date. We would like to request a meeting with you and the tribal representatives ofourfish consumption leadership/oversight group in Septemberto discuss options for EPA to help move fish consumption rates forward expeditiously in the state of Washington.
Tribes remain steadfast in their commitmentto revise fish consumption rates in the state's water quality standards, and they remain willingto work collaboratively with the state as long as tangible progress is being made. However, it is clearthat active engagement by federal agencies such as yours will be necessary to make this happen. Should you have any questions regarding this request, orwish to further discuss this matter, please do not hesitate to contact me directly or Fran Wilshusen, fwilshus@nwifc.org.Thank you foryour continued leadership on this important matter

. Sincerely,

Billy Frank, Jr

. Chairman

cc: Tribal Chairs NWIFC Commissioners Bob Perciasepe, EPA