Marten Law: Settlement of Suit Alleging Impairment of Coastal Waters From Carbon Dioxide Requires EPA to Consider Addressing Ocean Acidification Under Section 303(d) of Clean Water Act

Marten Law: Settlement of Suit Alleging Impairment of Coastal Waters From Carbon Dioxide Requires EPA to Consider Addressing Ocean Acidification Under Section 303(d) of Clean Water Act

   By Linda Larson and Meline MacCurdy

"EPA's recent settlement of a lawsuit brought by the Center for Biological Diversity (Center) challenging the State of Washington's failure to list coastal waters as "impaired" under § 303(d) of the Clean Water Act (CWA) due to reduced pH may put ocean acidification on the front line of emerging regulatory issues related to climate change," write Linda Larson and Meline MacCurdy. "There is a growing level of scientific consensus that ocean acidification results from the reaction of atmospheric carbon dioxide with seawater, lowering the pH of the ocean, and that, "unless there are dramatic changes in fossil fuel use, projected human-driven ocean acidification over this century will be larger and more rapid than anything affecting sea life for tens of millions of years."

The authors explain that "As part of the March 2010 settlement with the Center, EPA is currently taking comments on whether and how to address ocean acidification under the CWA, a move that could ultimately lead to the regulation of land-based activities that result in carbon dioxide emissions. The settlement also commits EPA to issue guidance later this year regarding whether and how states should assess and respond to "impairments" of marine waters under the CWA."

"Regulating ocean acidification under the CWA is likely to be complex and controversial," state Larson and MacCurdy. "For example, listing a water body as "impaired" under CWA § 303(d) [33 U.S.C. § 1313(d)] triggers a statutory duty to establish a total maximum daily load (TMDL) for the water body. A listing based on ocean acidification, therefore, would require states to quantify and control the "load" of carbon dioxide to the water body, even when those sources are regional, if not global. As a result, EPA's decision regarding whether to treat ocean acidification under the CWA's Impaired Waters Listing and TMDL Program could have potentially significant consequences for states, tribes, and the regulated community."

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Linda R. Larson is a partner at Marten Law Group. With over 25 years of environmental law and land use experience, she has been lead attorney on numerous large environmental litigation matters. As a lawyer with the Marten Law Group, Meline MacCurdy's practice focuses on environmental litigation, as well as environmental permitting and review of facilities in the Pacific Northwest.

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