Utah says it would be all right for selenium to kill up to one out of 10 birds on the Great Salt Lake. But a federal agency says that a state regulation based on that view is illegal under an international treaty.
The U.S. Fish and Wildlife Service warns of the potential violation in a letter to the U.S. Environmental Protection Agency.
A state official insists new water-quality regulations protect the Great Salt Lake's birds from toxic levels of selenium adequately, but federal wildlife officials are warning EPA that signing off on those regulations would amount to a violation of the international Migratory Bird Treaty.
The Great Salt Lake wetlands provide a home -- or at least a rest stop -- for between 9 million and 12 million birds, many of them protected under the treaty that includes Canada, Mexico, Russia, Japan and the United States.
To understand the Fish and Wildlife Service's arguments, it's necessary to understand how Utah's first-of-its-kind selenium limit works.
Utah's limit, which went into effect last month, allows concentrations of selenium in Great Salt Lake mallard eggs up to 12.5 parts per million. It turns out that, at 12.5 ppm, roughly 10 percent of the eggs can be expected to contain enough selenium to kill the developing bird. Current levels are about 2.7 ppm.
While the state sees this as 90 percent of the mallards surviving with that much selenium, the fish and wildlife service calls that 10 percent mortality a "taking," or illegal killing, prohibited by the five-nation migratory bird treaty, as well as a breach of federal law and a presidential order.
"[N]o water quality standard has ever been approved that explicitly would result in the take of migratory birds," said the May 18 letter.
At the EPA's water-quality office in Denver, director Karen Hamilton said she is getting direction from agency lawyers at headquarters. Hamilton was one of the 16 members of an advisory committee that suggested the selenium standards after four years and more than $2 million of study.
"The Great Salt Lake is a very, very important resource," she said, "and the EPA is very concerned that the resource is protected."
The federal agency has about 90 days to decide on the standards.
Walt Baker, director of Utah's water-quality division, noted that a majority of a selenium task force and the water-quality board "felt it was protective," twice as tough as most other water-quality limits. He also pointed out that the fish and wildlife service participants on the task force had voiced their objections repeatedly during the task force.
"That letter is not the end all or the death knell, if you will, of our standards," he said.
On the other side of the issue, retired Fish and Wildlife Service biologist Bruce Waddell applauded the letter. He noted that the state-adopted regulation allows a sacrifice of birds that are protected under federal and international law. He also said that there is too little data to say whether the regulation will genuinely protect some of the migratory species that rely on the lake, species that might be more sensitive than the mallards used to set the standards.
"It was an opportunity [for the state] to wear the white hat," he said. "I felt terribly let down" that higher levels of selenium -- and the hazards they pose for birds -- were allowed.
Nathan Darnall, a Fish and Wildlife Service biologist who served on the selenium task force after Waddell retired, noted that his agency wants the EPA to reject the state's selenium standard. Allowing the 10 percent bird mortality would set a dangerous precedent.
"It has importance across the nation," he said.
Although it is a mineral essential for nutrition in small amounts, selenium in high concentrations can build up in the food chain, weaken bird eggs, reduce fertility and cause deformities. Setting a selenium standard for the Great Salt Lake involved weighing the risk of harming birds against the practice of flushing waste selenium into the lake, primarily by sewer districts and Kennecott Utah Copper.