Using the clean water act to protect our oceans' biodiversity

• Author: Kate Halloran
• Position: J.D. candidate, May 2011, at American University Washington College of Law
• Pages: 23-23

23 SUSTAINABLE DEVELOPMENT LAW & POLICY

National legislation addressing the effects of climate

change on our ecosystem has failed to materialize,1 but

environmental advocates have sought other avenues

to jumpstart the process. The Center for Biological Diversity,

for example, has advanced the Clean Water Act as a vehicle to

address the deleterious impact of ocean acidif‌ication on marine

organisms. Ocean acidif‌ication, which some scientists argue has

been caused by anthropogenic climate change, alters the chemis-

try of ocean water and threatens marine biodiversity.2 As oceans

absorb carbon dioxide, pH levels decrease.3 The decreased pH lev-

els inhibit the ability of many marine organisms, such as coral and

plankton, to form protective shells integral to their survival.4 Loss

of these organisms would echo throughout the marine ecosystem.5

The integrity of the ocean ecosystem is signif‌icant not only from

an environmental standpoint, but also from an economic perspec-

tive.6 If marine biodiversity suffers irreversible damage from

ocean acidif‌ication, the effects would ripple throughout the com-

mercial realm, impacting the f‌ishing and tourism industries.7

In 2007, the Center for Biological Diversity f‌iled a peti-

tion with the United States Environmental Protection Agency

(“EPA”) requesting an update to existing water quality criteria

under section 304(a) of the Clean Water Act (“CWA”).8 The

Center for Biological Diversity argued that the pH water quality

criteria required revision in light of new scientif‌ic data on the

impacts of ocean acidif‌ication.9 EPA agreed to evaluate these

concerns and published a notice in the Federal Register request-

ing scientif‌ic data on the issue.10 Despite this agreement, EPA

approved a list of impaired waters in Washington that ignored

ocean acidif‌ication’s impacts on the state’s coastal waters.11 The

Center for Biological Diversity responded with a lawsuit against

EPA.12 Now, as part of a legal settlement, EPA has issued a

notice in the Federal Register soliciting comments on how to

address ocean acidif‌ication through listing of impaired waters

under section 303(d) of the CWA.13

The efforts of the Center for Biological Diversity are an

important step forward, but the question remains how effec-

tive the CWA would be in protecting marine biodiversity from

ocean acidif‌ication. Section 403(a)(2)(B) of the CWA requires

that water quality criteria address “the factors necessary for the

protection and propagation of shellf‌ish, f‌ish, and wildlife…”14

Once section 304(a) water quality criteria are determined, those

criteria must be enforced. Section 303(d) is primarily a mecha-

nism for implementing water quality criteria: f‌irst, a state com-

piles a list of waters within its jurisdiction that fail to meet the

criteria; and second, the state establishes limits for discharges

of pollutants affecting each impaired water body through Total

USING THE CLEAN WATER ACT TO PROTECT OUR

OCEANS’ BIODIVERSITY

by Kate Halloran*

* Kate Halloran is a J.D. candidate, May 2011, at American University Wash-

ington College of Law.

Maximum Daily Loads (“TMDLs”).15 TMDLs generally are

effective for managing point sources, where discharge of a par-

ticular pollutant is easily traceable and quantif‌iable. TMDLs for

non-point sources present an obstacle for ensuring compliance

and enforcement,16 an especially important consideration when

limiting carbon dioxide emissions in ocean waters.

One challenge is determining if and how much non-point

sources of carbon dioxide emissions are impacting a coastal area. If

that impact can be quantif‌ied, there is still the diff‌iculty of attribut-

ing those emissions in a way that would promote successful compli-

ance with TMDLs. Currently, TMDLs for non-point sources “are

implemented through a wide variety of State, local, and Federal

programs, which are primarily voluntary or incentive-based.”17

Moreover, the geography of the ocean calls for an inte-

grated system of managing ocean acidif‌ication. Coastal waters

are shared among different states that may have varying water

quality criteria, impaired waters lists, and TMDLs. A state only

has jurisdiction over its territorial waters, but the reality of man-

aging a vast ecosystem requires cooperation among coastal

states to prompt meaningful change.

Another potential issue is regulating carbon dioxide emis-

sions from point sources. Discharges from point sources would

require a permit through the National Pollution Discharge Elimi-

nation System (“NPDES”).18 Regulating carbon dioxide dis-

charges into oceans may necessitate developing new NPDES

permits that incorporate adjusted water quality criteria for ocean

acidif‌ication to set eff‌luent limitations for discharges,19 which

could be a lengthy and complex process.

A f‌inal obstacle is the CWA’s capacity to regulate airborne

carbon dioxide emissions. Airborne carbon dioxide emissions con-

tribute to the problem, but are not a conventional source of water

pollution.20 While it may be possible to regulate airborne emis-

sions under the CWA, the eff‌icacy of doing so is questionable.21

There is no doubt that ocean acidif‌ication is a time-sensitive

issue endangering the health of our oceans and marine life.22

The prospect of using the CWA to counteract ocean acidif‌ica-

tion has focused attention on this often overlooked problem, but

is not without its drawbacks. The challenges of implementing

these changes serve as a reminder that ocean acidif‌ication must

be attacked from more than one angle in order to maximize the

chance of success in protecting marine biodiversity.

Endnotes: Using the Clean Water Act to Protect Our Oceans'

Biodiversity continued on page 49