A step in the right direction: ocean acidification regulation under section 303(d) of the CWA

The Center for Biological Diversity (CBD) is leading the fight against ocean acidification (OA), in my beautiful home state of Washington, using the Clean Water Act’s (CWA) impaired waterbody listing requirement pursuant to § 303(d)[1] in an attempt to combat this prominent problem.

OA is caused by the world’s oceans taking in more Carbon Dioxide (CO2) than they can handle subsequently increasing the acidity and decreasing the pH levels of the oceans.[2] Estimates suggest that over twenty two million tons of CO2 are absorbed by the world’s oceans daily.[3] Oceans are already thirty percent more acidic than they were before the industrial revolution and models suggest that by the end of this century oceans could be 150 percent more acidic.[4] The acidification of the world’s oceans has a direct and dire impact on marine life, particularly to skeleton building organisms such as coral, calcifying algae and mollusks such as mussels and oysters.[5]

On August 15, 2007 the CBD presented data to the Washington Department of Ecology (WDE) showing that the pH levels of Washington State’s coastal waters were not in the range required by state water quality standards and asked that these waters be included on the state’s impaired waters list.[6] In June of 2008 when the list was submitted to the EPA by the WDE waters impaired from OA were not on the list.[7]  The EPA subsequently approved Washington’s list of impaired waters that did not include the waters impaired by OA.[8]

Due to this approval, CBD brought suit against EPA claiming a violation of section 303(d) of the CWA.[9] The complaint alleged that that EPA’s failure to list coastal water bodies damaged by OA harmed the CBD’s member’s rights to enjoy marine animals in the region and that its members suffered from procedural and informational injury.[10] CBD sought to compel declaratory relief for the violation by EPA of the CWA as well as an order requiring the water bodies impaired by OA to be included on the list.[11]

The CBD settled with EPA in 2010.[12] This settlement did not require the states to list waters impaired by ocean acidification on their 303(d) list, nor did it create any enforceable rulemaking procedures concerning the issue. However, as part of this settlement EPA began taking comments on how to deal with ocean acidification and was required under the settlement to issue guidance to the states on how they should evaluate and take action in regard to marine water impairment as regulated by the CWA.[13]

Based on this case the EPA published a Federal Register notice in November of 2010 and began accepting public comment.[14] Pursuant to these comments EPA determined that waters impaired by OA should be included on the 303(d) list.[15] The main issue now is the lack of data that states have in order to actually support these listings. As of now, no state has listed any coastal waters as impaired based on pH levels.

What this case ended up doing was placing the discussion of ocean acidification in to the public eye and piquing the interest to monitor for data in order to support claims of pH impaired water. When states are able to start listing coastal waters as impaired because of pH and thus giving way to CWA law, the regulations will likely be complex and contentious. Listing a water body as impaired based on ocean acidification would require states to quantify and manage the amount of CO2 going in to a water body.[16] Because CO2 is a regional and potentially global issue such a program could cause serious problems between states, tribes and the communities being regulated.

This case was a vital step in beginning to solve the problem of ocean acidification. The next step is compiling the data in order to support the claims that these water bodies are, in fact, impaired and should be listed as so. In the future we will need to determine how listing these impaired water bodies might work regionally and what sort of infrastructure can be put in place to guide states in this difficult task. The first step has been taken and although the road ahead may be long and winding, it was certainly a step in the right direction.

For more information on OA in Washington visit: http://www.ecy.wa.gov/water/marine/oceanacidification.html

Ressler S., PACE Environmental Law Review Blog, 22 April 2013. Article.

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