EPA Seeks Public Comments Regarding Ocean Acidification and the Clean Water Act

Author:Ms Priscilla Hampton and Ivan Gold
Profession:Perkins Coie LLP

Last month, the United States Environmental Protection Agency (EPA) published a notice in the Federal Register soliciting public comment on the effects of "ocean acidification" as it relates to the listing of impaired waters under section 303(d) of the Clean Water Act (CWA).  Ocean acidification is a decrease in ocean pH caused by the uptake of carbon dioxide (CO2) from the atmosphere.  According to EPA, the oceans have been absorbing one third of human-caused CO2 emissions since pre-industrial times, and acidification is increasingly harming ocean ecosystems, fisheries, and other marine resources.  

The EPA notice was prompted by a legal settlement between the environmental group Center for Biological Diversity (CBD) and EPA.  As part of that settlement, EPA agreed to consider issuing guidance regarding when waters threatened or impaired by ocean acidification should be listed and, if so, what that potential guidance might entail.  In May 2009, CBD filed suit against EPA in Washington federal court challenging EPA's approval of Washington State's 2008 impaired waters list because the state failed to include coastal waters that were "impaired" by acidification.  CBD alleged, among other things, that:

Ocean acidification is a growing threat to the world's seas, is caused by the ocean's absorption of CO2 from the atmosphere, and results in the impaired ability of marine animals to maintain the protective shells and skeletons needed to survive; Section 303(d) of the CWA requires each state to identify water bodies for which existing regulations are inadequate to protect water quality; An unacceptable change in the pH of Washington State's ocean waters is evidence of acidification and a basis for listing a water body under section 303(d); and In violation of section 303(d), EPA "arbitrarily and unlawfully" approved Washington State's list of impaired waters without identifying and listing coastal waters degraded...

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