The Problem of Low Fish Consumption Rates
Washington State is currently in the process of revising its fish consumption rates (FCRs). The current rates were developed in the 1980s and 1990s, and recent studies indicate that Washingtonians consume much more fish and shellfish than the FCRs currently reflect. Because Washington bases its environmental cleanup regulations and water quality standards in part on these rates, revising the FCRs presents important issues concerning both human health and the environment. As David McBride, a toxicologist at the Washington State Department of Health, told the Huffington Post, “Washington uses one of the lowest fish consumption rates in the nation to set water quality standards, but [has] some of the highest fish-consuming populations in the nation.”
The Washington State Department of Ecology (Ecology) is currently researching and
compiling information on how much fish and shellfish Washingtonians eat. The agency will use this data, which is contained in its Fish Consumption Rates Technical Support Document, as it updates its water quality standards and cleanup levels for toxic substances. The Technical Support Document contains the following statement of the problem:
compiling information on how much fish and shellfish Washingtonians eat. The agency will use this data, which is contained in its Fish Consumption Rates Technical Support Document, as it updates its water quality standards and cleanup levels for toxic substances. The Technical Support Document contains the following statement of the problem:Polychlorinated biphenyls (PCBs), dioxins, mercury, and other persistent chemicals can accumulate in fish tissue and harm the health of people who consume fish. Those who may be particularly vulnerable include adults who eat large amounts of finfish or shellfish, as well as children and other sensitive populations. Current fish consumption rates used by [Ecology] to make regulatory decisions are not consistent with what we know about how much fish people in Washington eat.
Although Ecology states that the Technical Support Document is not designed to address matters of policy, the agency also explains that it plans to address both scientific and policy questions surrounding fish consumption rates.
Statutory & Regulatory Background
The revision of Washington’s FCRs implicates several statutes and regulations, both at the state and federal level. Washington currently uses two separate fish consumption rates in its environmental regulations; 6.5 grams per day incorporated into water quality
standards, and 54 grams per day, which is the default value used in setting sediment and water cleanup standards under Washington’s Model Toxics Control Act. The difference between these two rates is that the former is used in a discharge permit and the latter is used in a contaminated sediment clean-up scenario. In other words, in both cases, a higher rate leads to more environmental protection because entities will be able to discharge less (pollution prevention) and sediment will have to contain less toxics as a result of cleanup efforts (pollution remediation).
standards, and 54 grams per day, which is the default value used in setting sediment and water cleanup standards under Washington’s Model Toxics Control Act. The difference between these two rates is that the former is used in a discharge permit and the latter is used in a contaminated sediment clean-up scenario. In other words, in both cases, a higher rate leads to more environmental protection because entities will be able to discharge less (pollution prevention) and sediment will have to contain less toxics as a result of cleanup efforts (pollution remediation).Washington’s Model Toxics Control Act (MTCA) is the state counterpart to the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The MTCA Cleanup Regulation, which sets the cleanup levels for surface
waters, includes a default fish consumption rate of 54 grams (1.9 ounces) per day. This rate, which was established in 1991, is used in setting the cleanup levels necessary to protect human health. Specifically, the 54 grams per day value is used in estimating the concentrations of hazardous substances that will result in “no acute or chronic toxic effects on human health” and which will result “in an excess cancer risk less than or equal to one in one million.”
waters, includes a default fish consumption rate of 54 grams (1.9 ounces) per day. This rate, which was established in 1991, is used in setting the cleanup levels necessary to protect human health. Specifically, the 54 grams per day value is used in estimating the concentrations of hazardous substances that will result in “no acute or chronic toxic effects on human health” and which will result “in an excess cancer risk less than or equal to one in one million.”
In addition, Ecology will use the data about fish consumption in adopting new human health criteria in the Water Quality Standards for surface waters in Washington State. States are required under the Federal Clean Water Act to establish water quality standards and
submit them to the Environmental Protection Agency (EPA) for approval. These standards must be sufficient to protect “public health or welfare, enhance the quality of the water and serve the purposes of [the Act].” Section 303, 33 U.S.C. 1313(c)(2)(A). One of the stated goals of the CWA is water quality which “provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” Section 101, 33 U.S.C. 1251(a)(2). As the agency states in a memorandum, the EPA has interpreted the term “fishable” to require not only that designated uses protect the fish and shellfish themselves, but also that they protect the health of the humans that consume these aquatic organisms. In its guidance document on Human Health Water Quality Criteria and Fish Consumption Rates, the EPA states that it “expects that the standards will be set to enable residents to safely consume from local waters the amount of fish they would normally consume from all fresh and estuarine waters.” Because these standards implement portions of the federal Clean Water Act—for example by specifying the designated and potential uses of water bodies in the state—they provide an example of the cooperative federalism discussed by Paul Locke et al., in their chapter
submit them to the Environmental Protection Agency (EPA) for approval. These standards must be sufficient to protect “public health or welfare, enhance the quality of the water and serve the purposes of [the Act].” Section 303, 33 U.S.C. 1313(c)(2)(A). One of the stated goals of the CWA is water quality which “provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” Section 101, 33 U.S.C. 1251(a)(2). As the agency states in a memorandum, the EPA has interpreted the term “fishable” to require not only that designated uses protect the fish and shellfish themselves, but also that they protect the health of the humans that consume these aquatic organisms. In its guidance document on Human Health Water Quality Criteria and Fish Consumption Rates, the EPA states that it “expects that the standards will be set to enable residents to safely consume from local waters the amount of fish they would normally consume from all fresh and estuarine waters.” Because these standards implement portions of the federal Clean Water Act—for example by specifying the designated and potential uses of water bodies in the state—they provide an example of the cooperative federalism discussed by Paul Locke et al., in their chapter 
Photo: Courtesy of People for Puget Sound
in Law in Public Health Practice (Oxford 2003), by which Congress regulates but offers states the choice of establishing regulatory programs that reflect federal standards. As Ecology explains in its overview of water quality standards, the standards also set water National Toxics Rule, which includes Water Quality Standards for human health protection based on a fish consumption rate of 6.5 grams (0.22 ounce) per day. This amount, which is based evaluations conducted by the EPA in the 1980s, is approximately equivalent to a single eight-ounce serving per month.
Public Health or Environmental Law?
Because Washington uses fish consumption rates as a basis for its environmental cleanup and pollution control standards, setting the state’s FCRs is a matter of both public health and environmental law. The issue fits well within the World Health Organization’s definition o
f “environmental health,” which emphasizes the assessment, control, and prevention of factors in the environment—including “physical, chemical, biological, social and psychosocial” factors—that have the potential to adversely affect “the health of present and future generations.” In setting FCRs that more accurately reflect actual consumption, the state is directly concerned with “assessing, correcting, controlling, and preventing” those
environmental factors. As the head of the Department of Ecology recently stated in a letter to the public regarding the FCR Technical Support Document, “it is essential that Washingtonians are able—now and in the future—to eat locally harvested fish without incurring risks to their health. This means we need to ensure that the limits we place on sources of toxics keep up with the growing potential for toxics to enter the environment.”
f “environmental health,” which emphasizes the assessment, control, and prevention of factors in the environment—including “physical, chemical, biological, social and psychosocial” factors—that have the potential to adversely affect “the health of present and future generations.” In setting FCRs that more accurately reflect actual consumption, the state is directly concerned with “assessing, correcting, controlling, and preventing” those environmental factors. As the head of the Department of Ecology recently stated in a letter to the public regarding the FCR Technical Support Document, “it is essential that Washingtonians are able—now and in the future—to eat locally harvested fish without incurring risks to their health. This means we need to ensure that the limits we place on sources of toxics keep up with the growing potential for toxics to enter the environment.”Entities Involved in Regulation
Governmental Players
The key players involved in this issue are the federal and state agencies charged with enforcing the statutes and regulations discussed above—namely, the EPA and the
Washington Department of Ecology. However, Ecology has also sought participation from a variety of individuals outside of the government as it develops its cleanup levels and water quality standards. For example, in order to better address toxic threats, the agency established the Toxics Reduction Strategy Workgroup, which it defines as a “group of thought leaders” that it hopes will “take a creative and comprehensive look at our current approaches, and see how we can do better”:
Washington Department of Ecology. However, Ecology has also sought participation from a variety of individuals outside of the government as it develops its cleanup levels and water quality standards. For example, in order to better address toxic threats, the agency established the Toxics Reduction Strategy Workgroup, which it defines as a “group of thought leaders” that it hopes will “take a creative and comprehensive look at our current approaches, and see how we can do better”:The goal of the group is to explore opportunities to develop a new framework for preventing toxic pollution that delivers greater environmental and human health benefits while minimizing transaction costs for controlling such pollution. The [Group] is looking holistically across and beyond current programs to explore how these programs could be modified or new programs developed to address the diffuse nature of toxic threats.
In addition, Ecology created a public process for interested parties, called the Policy Forum, to assist the agency in its rulemaking to adopt new human health-based water quality standards.The agency also put together the Delegate’s Table, a group of individuals representing the interests of their respective communities that is designed to “provide advice and perspective to the agency as it addresses the complex science and public policy issues of the [water quality standards] rulemaking.”
At first glance, at least, the Washington State government seems to be seeking as much public participation as possible as it develops more accurate fish consumption rates. On its website, Ecology states that it “welcomes—and needs—involvement by many, including tribal nations, industries, municipalities, and citizens.” Moreover, the state seems to recognize the importance of communicating risk to the public, and is disseminating as much information as possible in order to educate Washingtonians about the risks associated with fish consumption. The Department of Ecology website contains extensive information on the current status of the problem and even includes a diagram illustrating how toxics get into fish, sediments, and water.
Advocacy Groups
As Barry Johnson notes in Environmental Policy and Public Health (2006), some public policies are the result of legislation, while others evolve “as matters of public education or products of advocacy groups.” Several conservation groups are heavily involved in the issues surrounding FCRs and are pushing for higher rates in order to protect public health.
These include organizations such as Columbia Riverkeeper, Association of Washington Cities, and People for Puget Sound. In addition, the four entities that comprise the Waterkeeper Alliance in Washington—Spokane Riverkeeper, Columbia Riverkeeper, Puget Soundkeeper Alliance and North Sound Baykeeper—have been active in drafting letters to Ecology voicing their concerns about the agency’s rulemaking regarding the Toxic Human Health Criteria it the State’s Water Quality Standards. Columbia Riverkeeper has actually conducted studies testing levels of toxic chemicals found in fish and is engaged in a widespread campaign called “Is Your Fish Toxic?” The following video provides more information on the issue: Everyone deserves to know: How Toxic is Your Fish?
These include organizations such as Columbia Riverkeeper, Association of Washington Cities, and People for Puget Sound. In addition, the four entities that comprise the Waterkeeper Alliance in Washington—Spokane Riverkeeper, Columbia Riverkeeper, Puget Soundkeeper Alliance and North Sound Baykeeper—have been active in drafting letters to Ecology voicing their concerns about the agency’s rulemaking regarding the Toxic Human Health Criteria it the State’s Water Quality Standards. Columbia Riverkeeper has actually conducted studies testing levels of toxic chemicals found in fish and is engaged in a widespread campaign called “Is Your Fish Toxic?” The following video provides more information on the issue: Everyone deserves to know: How Toxic is Your Fish?Questions for Further Research
As I continue researching this topic, there are a few issues I would like to explore. First, as Johnson notes, although environmental health policies often originate at the federal level, “state and local governments also develop environmental health regulations and enact legislation that addresses issues specific to a state’s environmental conditions.” In the case of FCRs, it seems that standards are best developed at the state and local level based upon the specific environmental and cultural conditions of a particular area. Therefore, it would be interesting to compare FCRs in Washington with the rates set in other states. For example, Oregon—which is similar to Washington both in terms of its natural environmental and its cultural and social conditions—recently increased its fish consumption rate to 175 grams per day, and now has one of the highest FCRs in the nation.
I also plan to explore which segments of the population are most at risk and the environmental justice issues this presents. Not all Washingtonians face the same risks as a result of high levels of toxics in fish. For example, Washington State is home to several
Native American tribes whose members consume more fish and shellfish than the rest of the state. Accordingly, the Northwest Indian Fisheries Commission (NWIFC), which represents 20 tribes in western Washington, is urging the state to take action and develop a more accurate fish consumption rate. According to Bart Mihailovich, a member of the Spokane Riverkeeper, other high-risk groups include commercial and recreational fishermen, as well as individuals who eat substantial amounts of fish for various dietary reasons. Especially in the case of the tribes and other subsistence fishers, the FCRs raise issues concerning environmental justice, which Johnson defines as “[t]he fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
Native American tribes whose members consume more fish and shellfish than the rest of the state. Accordingly, the Northwest Indian Fisheries Commission (NWIFC), which represents 20 tribes in western Washington, is urging the state to take action and develop a more accurate fish consumption rate. According to Bart Mihailovich, a member of the Spokane Riverkeeper, other high-risk groups include commercial and recreational fishermen, as well as individuals who eat substantial amounts of fish for various dietary reasons. Especially in the case of the tribes and other subsistence fishers, the FCRs raise issues concerning environmental justice, which Johnson defines as “[t]he fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”