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DEALING WITH OCEAN ACIDIFICATION: THE PROBLEM, THE CLEAN WATER ACT, AND STATE AND REGIONAL APPROACHES Robin Kundis Craig* ABSTRACT
Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture and pose a longer-­‐term risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a world-­‐wide reduction in carbon dioxide emissions. In the interim, however, the Center for Biological Diversity has worked long and hard to apply the federal Clean Water Act to ocean acidification, while states and coastal regions are increasingly pursuing more broadly focused responses to its local and regional impacts. This Article provides a first assessment of these relatively nascent legal efforts to address ocean acidification, concluding that ocean acidification should prompt renewed Clean Water Act attention to stormwater runoff and nutrient pollution but also that more comprehensive adaptation law and policy will become and increasingly necessary part of coastal state and regional responses to ocean acidification.
I. INTRODUCTION
Ocean acidification is often referred to as climate change’s “evil twin.”1 As a natural part of the Earth’s carbon dioxide (also referred to as CO2) cycle, the * William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, UT. My thanks to the editors of the University of Washington Law Review for inviting me to contribute this article. I may be reached at: [email protected]. Electronic copy available at: http://ssrn.com/abstract=2633051
2 WASHINGTON LAW REVIEW [DRAFT world’s ocean2 has been absorbing much of the “extra” carbon dioxide that humans have been producing, especially since the Industrial Revolution and the large-­‐scale burning of fossil fuels. 3 However, once absorbed into the ocean, carbon dioxide chemically reacts to form, essentially, carbonic acid4 —the same reaction that gives sodas both their fizz and their ability to dissolve tooth enamel. This acid-­‐forming reaction is lowering the ocean’s pH.5 The result, potentially, is world-­‐wide marine ecological havoc.6 Most life on Earth is sensitive to small changes in pH. In humans, for example, a change in blood pH outside of our very narrow healthy range (7.35 to 7.45 7 ) leads to disease—acidiosis when blood pH goes below 7.4 and alkalosis when it rises above 1 E.g., ARC Center of Excellence in Coral Reef Studies, “Ocean acidification: ‘Evil twin’ threatens world’s oceans, scientists warn,” ScienceDaily, http://www.sciencedaily.com/releases/2010/03/100330092821.htm (April 1, 2010). 2 While people, both laypeople and scientists, commonly divide the world’s ocean into five geographic regions—the Pacific Ocean, the Atlantic Ocean, the Indian Ocean, the Arctic Ocean, and the Southern Ocean—it is increasingly recognized that all of the world’s marine realms are physically, chemically, and biologically interconnected. For example, the National Ocean Service of the National Oceanic and Atmospheric Administration (NOAA) declares that “[t]here is only one global ocean.” National Ocean Service, NOAA, How many oceans are there?, http://oceanservice.noaa.gov/facts/howmanyoceans.html (as revised April 13, 2015 and viewed June 29, 2015) (emphasis in original). To emphasize this interconnectedness, this Article purposely refers to the world’s “ocean” in the singular unless specific research results are restricted to particular geographic regions of that ocean. 3 Peter M. Cox, Richard A. Betts, Chris D. Jones, Steven A. Spall, & Ian J. Totterdell, Acceleration of global warming due to carbon-­‐cycle feedbacks in a coupled climate model, 408 NATURE 184, 184 (Nov. 9, 2000). 4 National Geographic, Ocean Acidification: Carbon Dioxide Is Putting Shelled Animals at Risk, http://ocean.nationalgeographic.com/ocean/critical-­‐issues-­‐ocean-­‐
acidification/ (as viewed Feb. 14, 2015). 5 See discussion infra Part II.A. 6 See discussion infra Part II.C. 7
MedicineNet.com, “Definition of Blood pH,” http://www.medicinenet.com/script/main/art.asp?articlekey=10001 (as viewed June 26, 2015). Electronic copy available at: http://ssrn.com/abstract=2633051
2015] Dealing with Ocean Acidification 3 7.45.8 At the levels of pH change projected for the oceans—0.3 to 0.4 pH units on average by the end of the century9—humans die.10 Ocean life is similarly sensitive to the changes in pH that ocean acidification is causing,11 especially because that change is not uniform; some places are ocean acidification “hot spots.” 12 Indeed, ocean acidification has already become a problem for commercial fishing and shellfish aquaculture enterprises around the world, including in the United States in Maine and all along the West Coast.13 The question, of course, is what the law can do to address ocean acidification. Most of the cause of ocean acidification is emissions of anthropogenic carbon dioxide into the air. 14 Moreover, like climate change itself, ocean acidification occurs in response to carbon dioxide emissions from all over the world.15 Ultimately, therefore, the solution to ocean acidification is largely the same as the solution to climate change: a world-­‐wide reduction in anthropogenic carbon dioxide emissions.16 8
Harper College, “Blood pH,” http://www.harpercollege.edu/tm-­‐
ps/chm/100/dgodambe/thedisk/bloodbuf/zback.htm (as viewed June 26, 2015). 9 The Ocean Acidification Network, How is ocean acidity changing?, http://www.ocean-­‐acidification.net (last viewed March 9, 2009). 10
Harper College, “Blood pH,” http://www.harpercollege.edu/tm-­‐
ps/chm/100/dgodambe/thedisk/bloodbuf/zback.htm (as viewed June 26, 2015). 11 For example, in the lab, “a decrease of 0.2 to 0.3 units in seawater pH inhibits or slows calcification in many marine organisms, including corals, foraminifera, and some calcareous plankton.” Richard E. Zeebe, et al., Carbon Emissions and Acidification, 321 SCIENCE 51, 52 (4 July 2008). 12 For example, “The rate of acidification is 50% faster at high latitudes compared to sub-­‐tropical waters because of the effects of temperature on ocean chemistry.” INTERNATIONAL PROGRAMME ON THE STATE OF THE OCEAN, INTERNATIONAL UNION FOR THE CONSERVATION OF NATURE, THE STATE OF THE OCEAN 2013: PERILS, PROGNOSES AND PROPOSALS 3 (3 Oct. 2013), available at http://www.stateoftheocean.org/pdfs/IPSO-­‐Summary-­‐Oct13-­‐FINAL.pdf [hereinafter 2013 IPSO STATE OF THE OCEAN REPORT]. 13 See infra Part IV. 14 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS 294 (2013), available at https://www.ipcc.ch/publications_and_data/publications_and_data_reports.shtml [hereinafter 2013 IPCC PHYSICAL SCIENCE REPORT]. 15 Id. 16 Notably, however, climate change is a response to an increasing concentration of a variety of greenhouse gases in the atmosphere, including methane and water Electronic copy available at: http://ssrn.com/abstract=2633051
4 WASHINGTON LAW REVIEW [DRAFT Nevertheless, while we wait for an effective global treaty to reduce those carbon dioxide emissions, coastal states and environmental organizations are pursuing local, regional, and national legal means of addressing ocean acidification, and the goal of this Article is to describe and begin to assess those emerging legal approaches. The Article begins in Part II by more thoroughly describing ocean acidification itself, concentrating on the basics of the carbon cycle, the chemistry of ocean acidification, the biological and ecological impacts of ocean acidification, projections for the future, and current impacts on marine fisheries and aquaculture. Part III then examines the Center for Biological Diversity’s (CBD’s) pursuit of a national and federally-­‐driven approach to ocean acidification through the Clean Water Act, focusing on the Section 304 national recommended (reference) marine pH water quality criterion and the Section 303 programs for water quality standards, identification and listing of impaired waters, and total maximum daily loads, or TMDLs. Part IV, in turn, examines nascent state and regional responses to ocean acidification, focusing on the states of Washington and Maine and the growing collection of regional ocean acidification programs along the West Coast. The Article concludes that ocean acidification should in fact spur renewed Clean Water Act interest in stormwater runoff and nutrient pollution control, particularly along the East Coast and Gulf of Mexico, but also that—as the acting states have recognized—the global causes of most ocean acidification demand creative adaptation law and policy, the ocean acidification equivalent of climate change adaptation efforts.
II. OCEAN ACIDIFICATION, CLIMATE CHANGE, MARINE ECOSYSTEMS, AND MARINE
AQUACULTURE
To understand the legal importance of ocean acidification, it is necessary first to understand what ocean acidification is and why it matters to marine environments (and human uses of those environments). This Part begins by explaining what role the ocean plays in the global carbon cycle and how human burning of fossil fuels is affecting the ocean’s role as a carbon sink. It then examines the chemistry of ocean acidification before translating that chemistry into biological and ecological consequences for marine ecosystems, both short-­‐
term and long-­‐term. A. The Earth’s Carbon Cycle, the Oceans, and Absorption of Carbon Dioxide vapor. Ocean acidification, in contrast, is driven almost entirely by increasing concentrations of carbon dioxide. 2015] Dealing with Ocean Acidification 5 The ocean is the world’s largest carbon sink for carbon dioxide gas.17 However, it is also important to remember that the ocean is part of the Earth’s larger carbon cycle, different components of which operate on a variety of time scales.18 Fast components of this cycle move carbon biologically through life forms and ecosystems, while the slowest components take millions to tens of millions of years to cycle carbon through rocks and the planetary crust and then into volcanoes, which return the carbon to the atmosphere.19 The ocean’s gas exchange with the atmosphere and its absorption of carbon dioxide is one of the faster elements of the slow carbon cycle: “At the surface, where air meets water, carbon dioxide gas dissolves in and ventilates out of the ocean in a steady exchange with the atmosphere.”20 Rocks, the ocean, and the atmosphere are all carbon reservoirs, balancing the location and reactivity of carbon on Earth at any given time. Importantly, “[a]ny change in the cycle that shifts carbon out of one reservoir puts more carbon in the other reservoirs. Changes that put carbon gases into the atmosphere result in warmer temperatures on Earth.” 21 Viewed from this global earth science perspective, the human burning of fossil fuels actively disrupts the normal balance of carbon cycle components, accelerating the return of carbon to the atmosphere from oil and coal deposits through the very fast processes of mining, drilling, and burning, compared to the very slow geological processes that would normally govern those deposits. In terms of anthropogenic climate change, therefore, the ocean is important because it absorbs the carbon dioxide “prematurely” returned to the atmosphere and sequesters it in slower carbon cycle component processes. As the National Aeronautics and Space Administration (NASA) has explained, Before the industrial age, the ocean vented carbon dioxide to the atmosphere in balance with the carbon the ocean received during rock weathering. However, since carbon concentrations in the atmosphere have increased, the ocean now takes more carbon from 17 FRED PEARCE, WITH SPEED AND VIOLENCE: WHY SCIENTISTS FEAR TIPPING POINTS IN CLIMATE CHANGE 86 (2007). 18 Holli Riebeek, Earth Observatory, National Aeronautics & Space Administration (NASA), The Carbon Cycle, http://earthobservatory.nasa.gov/Features/CarbonCycle/ (June 16, 2011). 19 Id. 20 Id. 21 Id. 6 WASHINGTON LAW REVIEW [DRAFT the atmosphere than it releases. Over millennia, the ocean will absorb up to 85 percent of the extra carbon people have put into the atmosphere by burning fossil fuels, but the process is slow because it is tied to the movement of water from the ocean’s surface to its depths. In the meantime, winds, currents, and temperature control the rate at which the ocean takes carbon dioxide from the atmosphere.22 At the beginning of the 21st century, the ocean and land ecosystems (mostly plants) were absorbing about half of the anthropogenic emissions of carbon dioxide23—roughly 25% by land plants and 25% by the ocean.24 According to oceanographers at the National Oceanic and Atmospheric Administration (NOAA) in 2006, “Over the past 200 years the oceans have absorbed 525 billion tons of carbon dioxide from the atmosphere, or nearly half of the fossil fuel carbon emissions over this period.” The oceans continue to uptake about 22 million tons of carbon dioxide per day.25 However, because of continuing and increasing climate change impacts, the ocean appears to be losing its immediate ability to act as a carbon sink. As a general matter, the cold water at ocean depths can sequester more carbon dioxide than warmer waters at the surface.26 As a result, any process that circulates cold water to the surface reduces the ocean’s ability to act as a carbon sink. Research published in 2009 indicates that, as a result of climate change, the Southern Indian 22 Id. 23 Cox, et al., supra note 3, at 184. 24 “The Ocean Carbon Cycle,” Harvard Magazine (Nov.-­‐Dec. 2002), as published at http://harvardmagazine.com/2002/11/the-­‐ocean-­‐carbon-­‐cycle.html. Some scientists, however, conclude that the ocean’s absorption contribution is even greater: “Over the past 200 years, the oceans have taken up ~40% of the anthropogenic CO2 emissions.” Zeebe, et al., supra note 11, at 52. The most recent summary report published in Science declares that the global ocean has “captured 28% of anthropogenic CO2 emissions since 1750, leading to ocean acidification . . . .” J.P. Gattuso, et al., Contrasting futures for ocean and society from difference CO2 emissions scenarios, 349 SCIENCE 45, 46 (3 July 2015). 25 Richard A. Feely, Christopher L. Sabine, & Victoria J. Fabry, NOAA, Carbon Dioxide and Our Ocean Legacy 1 (April 2006), available at http://www.pmel.noaa.gov/pubs/PDF/feel2899/feel2899.pdf. 26 “The Ocean Carbon Cycle,” Harvard Magazine (Nov.-­‐Dec. 2002), as published at http://harvardmagazine.com/2002/11/the-­‐ocean-­‐carbon-­‐cycle.html. 2015] Dealing with Ocean Acidification 7 Ocean is being subjected to stronger winds. The winds, in turn, mix the ocean waters, bringing up carbon dioxide from the depths and preventing the ocean from absorbing more carbon dioxide from the atmosphere.27 For similar reasons, “the CO2 sink diminished by 50% between 1996 and 2005 in the North Atlantic.”28 Overall, “the open ocean is projected to absorb a decreasing fraction of anthropogenic CO2 emissions as those emissions increase,” leaving 30% to 69% of 21st-­‐century emissions of CO2 in the atmosphere, depending on future emissions scenario.29 The loss of the ocean’s full capacity as a carbon sink, at least in the short term, could have significant implications for the progress of climate change everywhere. If the ocean reaches its immediate capacity as a carbon reservoir, carbon dioxide will accumulate more quickly in the atmosphere over the next decades, potentially accelerating the process of climate change even from what has been observed to date. B. The Chemistry of Ocean Acidification While important to the progress of climate change generally, the ocean’s absorption of anthropogenic carbon dioxide comes at a price: Absorbed carbon dioxide changes the ocean’s chemistry, a process known colloquially as “ocean acidification.” The absorbed carbon dioxide undergoes a series of complex chemical reactions in ocean waters, essentially becoming carbonic acid.30 More specifically, “Once in the ocean, carbon dioxide gas reacts with water molecules to release hydrogen, making the ocean more acidic. The hydrogen reacts with carbonate from rock weathering to produce bicarbonate ions.”31 Three chemical results of the ocean’s absorption of carbon dioxide are critically important: (1) the 27 CNRS (Délégation Paris Michel-­‐Ange), “Ocean Less Effective At Absorbing Carbon Dioxide Emitted By Human Activity,” ScienceDaily (Feb. 23, 2009), available at http://www.sciencedaily.com-­‐ /releases/2009/02/090216092937.htm. 28 Id. 29 Gattuso, et al., supra note 24, at 50. 30 National Geographic, Ocean Acidification: Carbon Dioxide Is Putting Shelled Animals at Risk, http://ocean.nationalgeographic.com/ocean/critical-­‐issues-­‐ocean-­‐
acidification/ (as viewed Feb. 14, 2015). More specifically, as the IPCC explains, “Dissolved CO2 forms a weak acid (H2CO3) and, as CO2 in seawater increases, the pH, carbonate ion (CO32–), and calcium carbonate (CaCO3) saturation state of seawater decrease while bicarbonate ion (HCO3–) increases.” 2013 IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 293 (2013). 31 Riebeek, supra note 18. 8 WASHINGTON LAW REVIEW [DRAFT ocean’s pH drops; (2) the concentration of carbonate ions in seawater drops; and (3) “saturation states of biologically important calcium carbonate minerals” such as calcite and aragonite are reduced.32 The ocean is naturally basic, with an average pH of about 8.16, and that pH level has been remarkably stable over geological time. 33 However, since the Industrial Revolution, the average ocean surface water pH has dropped by 0.1 unit;34 the largest changes in pH, according to the IPCC in 2013, have been in the northern North Atlantic Ocean, while the smallest have been in the subtropical South Pacific Ocean. 35 While this change may seem small, the pH scale is logarithmic, so that a pH decrease of 0.1 unit means that the oceans have become 26% more acidic in the last 250 years.36 The problem is only likely to become worse over time. The IPCC reported in 2014 that the ocean’s average pH is expected to drop by 0.13 to 0.42 pH units by the end of the century, depending on emissions scenario, 37 while NOAA reports that “[e]stimates of future carbon dioxide levels, based on business as usual emission scenarios, indicate that by the end of this century the surface waters of the ocean could be nearly 150 percent more acidic, resulting in a pH that the oceans haven’t experienced for more than 20 million years.”38 32 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 33 “Ocean Acidification: Another Undesired Side Effect of Fossil Fuel-­‐burning,” Science Daily, http://www.sciencedaily.com/releases/2008/05/080521105151.htm (May 24, 2008). However, pH does vary from location to location. According to the IPCC, for example, “the mean pH (total scale) of surface waters [currently] ranges between 7.8 and 8.4 in the open ocean . . . .” 2013 IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 293. 34 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 35 2013 IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 294. 36 Id. 37 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY 418 (2014), available at https://www.ipcc.ch/publications_and_data/publications_and_data_reports.shtml [hereinafter 2014 IPCC ADAPTATION REPORT]. 38 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 2015] Dealing with Ocean Acidification 9 The ocean, therefore, is approaching a chemical state of being unprecedented in human experience—and it is changing quickly. According to NOAA scientists, “[a]t present, ocean chemistry is changing at least 100 times more rapidly than it has changed during the 650,000 years preceding our industrial era.”39 Moreover, this altered chemical state is likely to be of long duration—at least from a human and ecological perspective. As reported in Science, “It takes the ocean about 1000 years to flush carbon dioxide added to surface waters into the deep sea where sediments can eventually neutralize the added acid.”40 C. Biological and Ecological Impacts from Ocean Acidification Such unprecedented changes in ocean chemistry, especially when combined with the other impacts on the ocean from climate change like rising water temperatures, have significant negative implications for marine life, biodiversity, and ecosystems. Of course, not every species will react to ocean acidification the same way. As NOAA has summarized: Photosynthetic algae and seagrasses may benefit from higher CO2 conditions in the ocean, as they require CO2 to live just like plants on land. On the other hand, studies have shown that a more acidic environment has a dramatic effect on some calcifying species, including oysters, clams, sea urchins, shallow water corals, deep sea corals, and calcareous plankton. When shelled organisms are at risk, the entire food web may also be at risk. Today, more than a billion people worldwide rely on food from the ocean as their primary source of protein.41 39 Feely, Sabine, & Fabry, supra note 25, at 2. See also Richard A. Kerr, Ocean Acidification Unprecedented, Unsettling, 328 SCIENCE 1500, 1500 (18 June 2010) (emphasizing the speed of current ocean acidification). 40 Richard A. Kerr, Ocean Acidification Unprecedented, Unsettling, 328 SCIENCE 1500, 1500-­‐01 (18 June 2010). 41 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 10 WASHINGTON LAW REVIEW [DRAFT There are also considerable uncertainties regarding how various forms of marine life will respond to ocean acidification,42 and research lags regarding the effects of ocean acidification “on communities and ecosystems.”43 Nevertheless, even under low-­‐emissions scenarios, and taking into account all of the impacts of climate change, “warm-­‐water corals and mid-­‐latitude bivalves [two-­‐shelled shellfish like clams and oysters] will be at high risk by 2100.”44 Moreover, a variety of marine organisms have already been affected by the combination of ocean acidification and warming ocean waters, including warm-­‐water corals, “mid-­‐latitude seagrass, high-­‐latitude pteropods and krill, mid-­‐latitude bivalves, and fin fishes.”45 Scientific research regarding the impacts of ocean acidification tends to concentrate on various kinds of shell-­‐forming animals, especially pteropods, shellfish, and coral reefs. These animals build their shells from calcium carbonate and hence are directly impacted by the chemical effects of ocean acidification, particularly in terms of reduced saturation of calcium carbonate minerals in seawater. As NOAA explains: Calcium carbonate minerals are the building blocks for the skeletons and shells of many marine organisms. In areas where most life now congregates in the ocean, the seawater is supersaturated with respect to calcium carbonate minerals. This means there are abundant building blocks for calcifying organisms to build their skeletons and shells. However, continued ocean acidification is causing many parts of the ocean to become undersaturated with these minerals, which is likely to affect the ability of some organisms to produce and maintain their shells.46 42 Roger Harrabin, “Shortages: Fisheries on the slide,” BBC NEWS Science & Environment, 17 June 2012, http://www.bbc.com/news/science-­‐environment-­‐
18353964. See also 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3 (“Biological impacts are already being observed as acidification is a direct threat to all marine organisms that build their skeletons out of calcium carbonate, including reef-­‐forming corals, crustaceans, molluscs and other planktonic species that are at the lower levels of pelagic food webs.”). 43 Gattuso, et al., supra note 24, at 50. 44 Id. at 45. 45 Id. 46 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 2015] Dealing with Ocean Acidification 11 Decreasing pH is projected to reduce the availability of calcium carbonate by about 60% by the end of the century.47 As one example of the biological impacts of reduced calcium carbonate, pteropods (also known as sea butterflies) are small (pea-­‐sized) shelled sea creatures that serve as a food source for everything from krill to North Pacific juvenile salmon to mighty whales. 48 In laboratory experiments, pteropods subjected to seawater at the pH levels projected for the ocean by the end of the 21st century dissolved in 45 days. 49 Field studies, in turn, have revealed “dissolution of live pteropod shells in the California Current system and Southern Ocean, both areas that experience significant anthropogenic acidification.”50 As the BBC has summarized the potential widespread problems resulting from pteropod sensitivity to pH, “[s]tudies suggest that pteropods—tiny swimming snails—will be badly hit because they need alkaline water to make their shells. That could matter to us because pteropods feed the salmon, herring, mackerel and cod that we like to eat.” 51 Shellfish, especially bivalves like clams and oysters, are also victims of ocean acidification, and effects on shellfish have been documented in the wild.52 Specifically, ocean acidification and the resulting undersaturation of calcium carbonate minerals and aragonite interferes with the ability of young oysters and clams to form shells.53 Beyond clams and oysters, a number of other marine organisms such as mussels, snails, sea urchins, and certain types of microscopic plants and animals (calcareous phytoplankton and zooplankton, respectively) use calcium carbonate to build their shells, and lab testing has demonstrated that 47 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3. 48 Id. 49 Id. 50 Gattuso, et al., supra note 24, at 50. 51 Harrabin, supra note 42. See also 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3 (“Biological impacts are already being observed as acidification is a direct threat to all marine organisms that build their skeletons out of calcium carbonate, including reef-­‐forming corals, crustaceans, molluscs and other planktonic species that are at the lower levels of pelagic food webs.”). 52 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, http://www.pmel.noaa.gov/co2/story/What+is+Ocean+Acidification%3F (as viewed June 29, 2015). 53 Id. 12 WASHINGTON LAW REVIEW [DRAFT many species cannot survive well in water at pH levels equal to the projected decreases.54 Coral reefs and the highly productive ecosystems that they support are at particularly high risk.55 “Coral reefs occupy a small part of the world’s oceans yet harbor a hugely disproportionate amount of its biodiversity.” 56 They suffer particularly acutely in this climate change era because of past abuses and a sensitivity to rising sea temperatures,57 but tropical corals are also shell-­‐forming organisms harmed by decreasing concentrations of carbonate ions. 58 As a result, “within decades, rates of reef erosion will exceed rates of reef accretion across much of the tropics and subtropics.”59 While coral species exhibit considerable variation in their ability to build shells despite ocean acidification and to adapt to warming waters,60 giving some cause for hope, the future of the world’s coral reefs is far from certain. As marine biologists summarized in a 2011 article in Science, “[t]he most pessimistic projection is for global-­‐scale losses of coral reefs resulting from annual mass bleaching events,” and both the corals’ own adaptation abilities and “aggressive emissions reduction” will be “ necessary to avoid extended declines in coral cover to very low levels.”61 More recently, however, many corals appear to be losing the battle: Scientists have noted that “[d]ecreases in net calcification, at least partly because of ocean acidification, have . . . been observed in a coral reef cover over 1975 to 2008, and conditions are already shifting some coral reefs to net erosion.”62 As the connections to marine food production noted above suggest, the impacts of ocean acidification on marine ecosystems—and human well-­‐being—are likely to be much broader than just the effects on shell-­‐forming organisms. Recent 54 Ocean Acidification Network, How will ecosystems be affected?, http://www.ocean-­‐acidification.net. 55 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3-­‐4; Joan A. Kleypas & Kimberly K. Yates, Coral Reefs and Ocean Acidification, OCEANOGRAPHY, Dec. 2009, at 108, 109. 56 John M. Pandolfi, et al., Projecting Coral Reef Futures Under Global Warming and Ocean Acidification, 333 SCIENCE 418, 418 (22 July 2011). 57 Id. at 418, 419. 58 Id. at 418. 59 Id. 60 Id. at 420. 61 Id. at 421. 62 Gattuso, et al., supra note 24, at 50. 2015] Dealing with Ocean Acidification 13 scientific studies have “begun to report community-­‐level responses [to ocean acidification] in phytoplanktonic, bacterial, seagrass, and algal communities.”63 At the biological level, ocean acidification can cause acidosis, the buildup of carbonic acid in organisms’ bodily fluids, which in turn can cause “lowered immune response, metabolic depression, behavioural depression, affecting physical activity and reproduction, and asphyxiation.”64 At the level of marine biochemistry, “the pH gradient across cell membranes is coupled to numerous critical physiological/biochemical reactions within marine organisms, ranging from such diverse processes as photosynthesis, to nutrient transport, to respiratory metabolism.”65 At the physical level, decreasing pH levels decrease the ocean’s ability to absorb sound, and the resulting increased noise in the ocean may impact acoustically sensitive whales and dolphins, while decreasing concentrations of calcium carbonate allow for more light penetration, with unknown impacts.66 Given emerging marine community responses to ocean acidification and its multitude of ancillary impacts, the marine ecosystem impacts from ocean acidification could be tremendous, resulting in loss of commercially important fisheries, locally important fisheries, and coastal protection from storms.67 The economic and cultural costs for humans, especially those in developing nations or coastal countries, could be enormous.68 In addition, as with coral reefs, ocean acidification is likely to interact synergistically with other impacts of climate change on the oceans to multiply harms to marine ecosystems. Given all of these impacts, moreover, it is entirely possible that ocean acidification could also cause—or at least contribute significantly to—the next global mass extinction event. As reported in Science, “[t]he closest analog in the geologic record to the present acidification appears to be the Paleocene-­‐Eocene Thermal Maximum (PETM) 55.8 million years ago.” 69 The International 63 Id. (citations omitted). 64 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 4. 65 Scott C. Doney et al., Ocean Acidification: A Critical Emerging Problem for the Ocean Sciences, Oceanography, Dec. 2009, at 16, 16. 66 Id. 67 Id.; see also Sarah R. Cooley, Hauke L. Kite-­‐Powell & Scott C. Doney, Ocean Acidification’s Potential to Alter Global Marine Ecosystem Services, OCEANOGRAPHY, Dec. 2009, at 172, 172–76 (detailing these ecosystem impacts); Gattuso, et al., supra note 24, at 45. 68 See generally Cooley, Kite-­‐Powell, & Doney, supra note 67, at 172–76 (detailing the value of marine ecosystem services that could be impacted by ocean acidification). 69 Kerr, supra note 39, at 1500. 14 WASHINGTON LAW REVIEW [DRAFT Programme for the State of the Ocean (IPSO) made the same connection in its 2013 State of the Ocean report: [T]he scale and rate of the present day carbon perturbation, and resulting ocean acidification, is unprecedented in Earth’s known history. Today’s rate of carbon release, at approximately 30 Gt [gigtons] of CO2 per year, is at least 10 times faster than that which preceded the last major species extinction (the Paleocene Eocene Thermal Maximum extinction, or PETM, ca. 55 million years ago), while geological records indicate that the current acidification is unparalleled in at least the last 300 million years. We are entering an unknown territory of marine ecosystem change, and exposing organisms to intolerable evolutionary pressure. The next mass extinction event may have already begun.70 Multiple scientific studies, therefore, conclude that ocean acidification is both an immediate and long-­‐term threat to both marine and human life, warranting a much stronger global commitment to reducing anthropogenic emissions of carbon dioxide.71 Until that global legal commitment is in place, however, coastal states and regions must pursue more limited legal responses. D. Ocean Acidification, Marine Food Supply, and Marine Aquaculture While a global mass extinction event remains ocean acidification’s ultimate threat, it is ocean acidification’s more immediate impacts on marine life that are driving interest in more creative legal approaches to the problem. In particular, ocean acidification is immediately threatening marine food supplies, in terms both of natural stocks and marine aquaculture. As noted, the effects of ocean acidification on shell-­‐forming organisms like bivalves and coral reefs has already been documented. In 2012, environmental NGO Oceana published a report on how ocean acidification and climate change are impacting global food security as a result of the impacts on marine organisms. It noted that “[m]any coastal and small island developing nations depend more heavily on fish and seafood for protein than developed nations. In some places, such as the Maldives, well over half of the available food protein comes from seafood. Other countries in which people eat large amounts of fish and seafood 70 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3. 71 E.g., Gattuso, et al., supra note 24, at 45. 2015] Dealing with Ocean Acidification 15 include Iceland, Japan, Kiribati and the Seychelles.”72 Ocean acidification poses a threat to many of these nations. As one example, “The decline of coral reefs threatens many fish species and the people that depend on those fish for food and livelihoods. About a quarter of all marine fish species live on coral reefs and about 30 million people around the world depend heavily on these fish as a stable source of protein.”73 Similarly, shellfish mollusks “may represent only a small fraction of all available protein on a global scale, they can provide 50 percent or more of the available protein in places like Aruba, Turks and Caicos Islands and the Cook Islands. Losses in mollusk populations could impact many jobs and the global economy, but the most significant hardships may be felt by nations that are most heavily reliant on mollusks for food.”74 Oceana concluded that the ten nations most threatened by ocean acidification are the Cooks Islands (South Pacific Ocean), New Caledonia (Southwest Pacific Ocean), Turks and Caicos Islands (Caribbean), Comoros (Indian Ocean), Kiribati (Central Tropical Pacific Ocean), Aruba (southern Caribbean), Faroe Islands (North Atlantic Ocean), Pakistan (Arabian Sea), Eritrea (Red Sea), and Madagascar (Indian Ocean).75 However, ocean acidification impacts on fisheries and food supply do not need to rise to the level of existential vulnerability for nations to notice them. As the United Nations Environment Programme (UNEP) observed in 2010: Productivity ‘hotspots’ such as upwelling regions where cold water is rich in both nutrients and CO2, coastal seas, fronts, estuaries and sub-­‐polar regions often supply the main protein source for coastal communities. However, many of these areas are also projected to be very vulnerable to ocean acidification this century. As world populations rise alongside a predicted growth in coastal populations due to internal migration, the demand for ocean protein products is also likely to rise. Fish stocks, already declining in many areas due to 72 Matthew Huelsenbeck, Oceana, Ocean-­‐Based Food Security Threatened in a High CO2 World: A Ranking of Nations’ Vulnerability to Climate Change and Ocean Acidification 3 (Sept. 2012) (citations omitted), available at http://oceana.org/sites/default/files/reports/Ocean-­‐
Based_Food_Security_Threatened_in_a_High_CO2_World.pdf. 73 Id. at 6 (citations omitted). 74 Id. (citations omitted). 75 Id. at 8 tbl. 3. 16 WASHINGTON LAW REVIEW [DRAFT over-­‐fishing and habitat destruction, now face the new threats posed by ocean acidification.76 In the United States, for example, fisheries in Alaska, “which accounted for 50% of the United States’ total catch in 2009,” are notably vulnerable to ocean acidification.77 Specifically, the pH levels in the four seas that ring Alaska—the Chukchi, Beaufort, Bering, and Gulf of Alaska—has dropped by 0.1 units since the Industrial Revolution and is forecast to lower about another 0.4 units by the end of the century. Alaska’s cold waters naturally absorb more carbon dioxide from the atmosphere than warmer waters do, and its upwelling currents bring more acidic waters to the surface, making it harder for organisms like mollusks to form their shells.78 The effects on commercially important marine species are already occurring. “Studies have found that more acidic water in Alaska is stunting the growth of red king crabs and tanner crabs.”79 A more recent NOAA study “found rural areas in southern Alaska are at high risk of losing hundreds of millions of dollars in commercial and subsistence fishing stocks. Declining seafood harvests will impact about 20 percent of Alaska’s population, which relies on subsistence fishing for significant amounts of their diet . . . .”80 On the East Coast, runoff of nutrients from land is accelerating ocean acidification, and “[t]he Chesapeake Bay, which receives runoff from one of the most densely populated watersheds in the United States, is acidifying three times faster than the rest of the world’s oceans. Long Island Sound, Narragansett Bay and 76 United Nations Environment Programme (UNEP), Environmental Consequences of Ocean Acidification: A Threat to Food Security 4 (2010), available at http://www.unep.org/dewa/Portals/67/pdf/Ocean_Acidification.pdf. 77 Xochiti Rojas-­‐Rochas, “Worsening ocean acidification threatens Alaska fisheries,” Science Insider Daily News, http://news.sciencemag.org/climate/2014/07/worsening-­‐ocean-­‐acidification-­‐
threatens-­‐alaska-­‐fisheries (29 July 2014). 78 Id. 79 Reid Wilson, “Marine industries at risk on both coasts as oceans acidify,” Washington Post, July 30, 2014, http://www.washingtonpost.com/blogs/govbeat/wp/2014/07/30/marine-­‐
industries-­‐at-­‐risk-­‐on-­‐both-­‐coasts-­‐as-­‐oceans-­‐acidify/. 80 Id. 2015] Dealing with Ocean Acidification 17 the Gulf of Mexico are all showing signs of rapid acidification.”81 This long-­‐term acidification may be contributing to the drop in oyster harvests from the coastal Atlantic Ocean.82 In addition, mudflats in Maine have become acidic enough in some spots to kill young clams.83 Ocean acidification “hot spots” are also proving troubling to shellfish aquaculture. In the Pacific Northwest, for example, “Puget Sound has some of the world’s most corrosive waters. Scientists are finding that marine waters in the Northwest have become so corrosive that they are eating away at oyster shells before they can form.”84 Natural upwelling patterns in this region exacerbate the ocean acidification occurring in Puget Sound and off the coast of Oregon. 85 Beginning in 2008, oyster aquaculture facilities in Puget Sound began experiencing drops in larvae production, from 7 billion larvae in 2006 and 2007 to half that in 2008 and one-­‐third in 2009, and similar drops occurred in Oregon facilities.86 The Seattle Times reported in 2013 that oyster aquaculturists are moving their 81 Id. 82 Id. 83 Natural Resources Defense Council, Gulf of Maine: Ocean Acidification 1 (2008), available at http://www.nrdc.org/oceans/acidification/files/ocean-­‐acidification-­‐
maine.pdf. 84 Pacific Marine Environmental Laboratory, NOAA, Acidifying Water Takes Toll on Northwest Shellfish, http://www.pmel.noaa.gov/co2/story/Acidifying+Water+Takes+Toll+On+Northw
est+Shellfish (as viewed June 29, 2015). 85 Specifically, Regional marine processes including coastal upwelling exacerbate the acidifying effects of global carbon dioxide emissions. Coastal upwelling brings deep ocean water, which is rich in carbon dioxide and low in pH, up into the coastal zone. This upwelled water has spent decades circulating deep in the ocean, out of contact with the atmosphere for 30 to 50 years. This means that the waters currently upwelled onto the coast of the Pacific Northwest reflect the atmospheric carbon dioxide concentrations of the 1970s and 1980s. Northwest Association of Networked Ocean Observing Systems (NANOOS), Ocean Acidification: What Is Ocean Acidification?, http://www.nanoos.org/education/learning_tools/oa/ocean_acidification.php (as viewed June 29, 2015). 86 Id. 18 WASHINGTON LAW REVIEW [DRAFT facilities to Hawai’i because young Pacific oysters in Washington “stopped growing.”87 III. THE CLEAN WATER ACT AND OCEAN ACIDIFICATION
As the IPCC noted in 2013, “Uptake of anthropogenic CO2 is the dominant cause of observed changes in the carbonate chemistry of surface waters.” 88 Because ocean acidification is thus largely the result of emissions of carbon dioxide into the air, the United States’ source-­‐based approach to environmental regulation underscores the domestic need to use the Clean Air Act 89 to address ocean acidification. As such, the Environmental Protection Agency’s (EPA’s) increasing efforts to address greenhouse gas emissions through the Clean Air Act may eventually help to address the ocean acidification problem. Indeed, many of the EPA’s recent greenhouse gas regulations and proposed regulations explicitly mention ocean acidification as one reason for imposing increased emissions controls.90 Nevertheless, there is no disputing the fact that the effects of ocean acidification occur in the water, meaning that ocean acidification can be fairly characterized as a water pollution problem. Moreover, in some places other forms of water pollution—like, as noted, the nutrient runoff pollution into Chesapeake Bay—can exacerbate ocean acidification. Thus, the federal Clean Water Act 91 would also seem to be relevant. The Center for Biological Diversity (CBD) has certainly been agitating for the Clean Water Act to play a larger role in addressing ocean acidification, and on January 16, 2009, the EPA agreed to respond to the CBD’s December 2007 petition requesting that the EPA revise its water quality 87 Craig Welch, “Sea Change: Oysters dying as coast is hit hard,” The Seattle Times, Sept. 12, 2013, http://apps.seattletimes.com/reports/sea-­‐
change/2013/sep/11/oysters-­‐hit-­‐hard/. 88 2013 IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 294 (2013). 89 42 U.S.C. §§ 7401-­‐7671q (2012). 90 See, e.g., U.S. EPA, Carbon Pollution Standards for Modified and Reconstructed Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,960, 34,967 (June 18, 2014) (referencing the National Research Council’s 2010 report, “Ocean Acidification: A National Strategy to Meet the Challenges of a Changing Ocean”); U.S. EPA, Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1439 (Jan. 8, 2014) (noting that ocean acidification is one reason for pursuing reductions in carbon dioxide emissions and climate stabilization). 91 33 U.S.C. §§ 1251-­‐1388 (2012). 2015] Dealing with Ocean Acidification 19 criteria for marine pH pursuant to the federal Clean Water Act92 to reflect current knowledge about ocean acidification.93 The CBD has also invoked the Clean Water Act’s impaired waters listing process as being relevant to ocean acidification, leading to a recent federal district court decision. Nevertheless, the EPA has done little to expand the role of the Clean Water Act in addressing ocean acidification, citing natural variability and lack of baseline data as complicating issues. The question, of course, is what the Clean Water Act can actually contribute to any resolution of the ocean acidification problem. This Part begins by providing an overview of the Clean Water Act’s regulatory provisions in light of the CBD’s 2007 petition. It then reviews subsequent administrative responses to ocean acidification and the ocean acidification litigation that has occurred in the United States, emphasizing the 2015 federal district court decision denying the CBD’s challenge to the EPA’s approval of Washington’s and Oregon’s 2010 impaired waters lists. A. An Overview of the Clean Water Act’s Regulatory Regime in Light of the Center for Biological Diversity’s 2007 Petition to the EPA The CBD has spearheaded a multi-­‐faceted effort to bring ocean acidification within the ambit of state and federal law. For example, acknowledging the role of states in protecting water quality, on February 28, 2007, the CBD petitioned the State of California to regulate carbon dioxide pollution under the Clean Water Act.94 Beginning in 2009, moreover, the CBD began working to have many species of coral listed for protection under the federal Endangered Species Act (ESA)95 because of the twin threats of ocean acidification and climate change.96 The CBD 92 33 U.S.C. §§ 1251-­‐1388 (2012). 93 Letter from Benjamin H. Grumbles, Assistant Administrator, U.S. Environmental Protection Agency, to Ms. Miyoko Sakashita, Attorney, Center for Biological Diversity, dated Jan. 16, 2009, at 1 available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/EPA_Res
ponse_to_ CBD_Ocean_ Acidification_Petition.pdf. 94 Center for Biological Diversity, “Conservation Group Petitions to Regulate Carbon Dioxide Under Clean Water Act,” http://www.biologicaldiversity.org/news/press_releases/ocean-­‐acidification-­‐02-­‐
28-­‐2007.html (Feb. 28, 2007). The petition itself is available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/acidifica
tion-­‐cwa-­‐petition.pdf. 95 16 U.S.C. §§ 1531-­‐1544 (2012). 96 Center for Biological Diversity, “Suit Will Be Filed to Protect 83 Corals Threatened by Global Warming, Ocean Acidification,” 20 WASHINGTON LAW REVIEW [DRAFT later also pursued ESA protections for black abalone, orange clownfish, and seven species of damselfish.97 With respect to federal efforts under the Clean Water Act, however, the CBD has concentrated its attention on the EPA’s criteria for marine pH and alleged violations of ocean water quality standards in Washington and Oregon. These efforts formally began on December 18, 2007, when the CBD formally petitioned the EPA to strengthen the federal national recommended (or reference) water quality criterion under the Clean Water Act for ocean pH and to provide guidance to the states regarding ocean acidification and water quality.98 More specifically, the CBD petitioned the EPA to revise, pursuant to Section 304 of the Clean Water Act,99 the EPA’s water quality criterion for pH to acknowledge and address ocean acidification.100 The CBD’s petition acknowledged that ocean acidification is primarily a result of carbon dioxide emissions into the air, but it also stressed how significant a water quality problem that ocean acidification could become: Carbon dioxide pollution has already lowered average ocean pH by 0.11 units, with a pH change of 0.5 units projected by the end of the century under current emission trajectories. These changes are likely to have devastating impacts on the entire ocean ecosystem. The primary known impact of acidification is impairment of calcification, the process whereby corals, crabs, abalone, oysters, sea urchins, and other animals make shells and skeletons. Many species http://www.biologicaldiversity.org/news/press_releases/2010/corals-­‐01-­‐20-­‐
2010.html (Jan. 20, 2010). 97 Center for Biological Diversity, “Endangered Oceans: Ocean Acidification Action Timeline,” http://www.biologicaldiversity.org/campaigns/endangered_oceans/action_timeli
ne.html (as viewed July 3, 2015). 98 Center for Biological Diversity, “Lax Standard Fails to Prevent Souring Seas; Group Petitions EPA to Address the Threat of Ocean Acidification,” http://www.biologicaldiversity.org/news/press_releases/ocean-­‐acidification-­‐12-­‐
18-­‐2007.html (Dec. 18, 2007). 99 33 U.S.C. § 1314 (2012). 100 Center for Biological Diversity, Before the Environmental Protection Agency: Petition for Revised pH Water Quality Criteria under Section 304 of the Clean Water Act, 33 U.S.C. § 1314, to Address Ocean Acidification i, ii (Dec. 18, 2007), available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/section-­‐
304-­‐petition-­‐12-­‐18-­‐07.pdf. 2015] Dealing with Ocean Acidification 21 of phytoplankton and zooplankton, which form the basis of the marine food web, are also particularly vulnerable to ocean acidification. Laboratory studies have shown that at carbon dioxide concentrations likely to occur in the ocean in the next few decades, the shells of many marine species deform or dissolve. Scientists predict that the majority of coral reefs will turn to rubble before the end of the century. Absent significant reductions in carbon dioxide emissions, ocean acidification will accelerate, likely ultimately leading to the collapse of oceanic food webs and catastrophic impacts on the global environment.101 The petition also emphasized that the Clean Water Act is “the nation’s strongest law protecting water quality” and that “[b]ecause ocean acidification is changing seawater chemistry and degrading water quality, EPA needs to address this threat before it harms marine life and resources.”102 It argued that, in light of ocean acidification, the EPA’s national recommended water quality criterion for ocean pH did not reflect the latest scientific knowledge.103 Under the Clean Water Act, the EPA’s Section 304 nationally recommended (reference) water quality criteria have very little direct legal force of their own; instead, they function primarily to provide information and suggested criteria to states that states can then incorporate into their own Section 303(c) water quality standards.104 Nevertheless, the Act specifies that the EPA’s criteria must reflect: the latest scientific knowledge (A) on the kind and extent of all identifiable effects on health and welfare, including, but not limited to, plankton, fish, shellfish, wildlife, plant life, shorelines, beaches, esthetics, and recreation which may be expected from the presence of pollutants in any body of water, including ground water, (B) on the concentration and dispersal of pollutants, or their byproducts, through biological, physical, and chemical processes, and (C) on the effects of pollutants on biological community diversity, productivity, and stability, including information on the factors affecting rates of eutrophication and rates of organic and inorganic sedimentation for varying types of receiving waters.105 101 Id. at ii (emphasis added). 102 Id. 103 Id. at ii-­‐iii. 104 See 33 U.S.C. § 1313(c) (2012). 105 Id. § 1314(a)(1). 22 WASHINGTON LAW REVIEW [DRAFT In addition, the EPA is required to “develop and publish” information regarding how to restore and maintain water quality, how to protect shellfish, fish, and wildlife in various kinds of waters, how to measure water quality, and how to set TMDLs.106 Relying on the EPA’s national recommended (reference) criteria, states set water quality standards for all of the navigable waters, including the first three miles of ocean, within their boundaries.107 Water quality standards have two components: designated uses—that is, the uses that the state wants the waters to support, including all existing uses; and water quality criteria, which are the numeric and narrative standards for various pollutants—pH, toxics, temperature, nutrients, and so on—that the water body must meet in order to support the designated uses.108 In addition, the Clean Water Act explicitly requires states to consider, inter alia, the waters’ “use and value for . . . propagation of fish and wildlife . . . .”109 As a result, states should be considering the effect of ocean pollution (like ocean acidification) on marine life. However, the roles of the EPA’s reference water quality criteria and water quality standards also must be appreciated in the larger context and structure of the Clean Water Act. The Act’s regulatory programs derive from the statute’s declaration that, except as in compliance with the Act itself, “the discharge of any pollutant by any person shall be unlawful.” 110 Under the Act’s definitions, a “discharge of a pollutant” is “(A) any addition of any pollutant to navigable waters from any point source, [and] (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.”111 Thus, for Clean Water Act jurisdiction to exist, there must be: (1) an addition; (2) of a pollutant; (3) to jurisdictional waters; (4) from a point source. According to the Act, the “navigable waters” are the “waters of the United States, including the territorial sea,”112 and the territorial sea is the first three 106 Id. § 1314(a)(2). The EPA’s current water quality criteria are available at U.S. EPA, National Recommended Water Quality Criteria, http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm (as last updated June 29, 2015 & viewed June 30, 2015). 107 Id. § 1313(a), (c). 108 40 C.F.R. § 131.3(b), (f) (2014). 109 33 U.S.C. § 1313(c)(2)(A) (2012). 110 33 U.S.C. § 1311(a) (2012). 111 Id. § 1362(12). 112 Id. § 1362(7). 2015] Dealing with Ocean Acidification 23 miles of ocean.113 The Act’s references to the territorial sea, the contiguous zone, and the ocean make it clear that the Clean Water Act applies to discharges of pollutants into the seas, which forms one legal basis for the CBD’s ocean acidification petition. Federal Clean Water Act jurisdiction also requires the “addition” of a “pollutant” from a “point source.” A “point source” is “any discernible, confined, and discrete conveyance,” like a pipe,114 but the phrase had also been broadly interpreted to apply to most human-­‐controlled conveyances of pollutants to waterways.115 Sources of water pollution such as runoff that do not qualify as point sources are nonpoint sources, which the states are supposed to regulate through other means.116 The Act also defines “pollutant” broadly, to include: dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.117 Finally, the Act does not define “addition.” Nevertheless, case law has defined this term to include most non-­‐natural conveyances of pollutants to a water body.118 113 Id. § 1362(8). 114 33 U.S.C. § 1362(14) (2012). 115 E.g., Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1009 (11th Cir. 2004); Dague v. City of Burlington, 935 F.2d 1343, 1354-­‐55 (2d Cir. 1991) (both interpreting “point source” broadly). 116 See 33 U.S.C. § 1329 (2012) (governing state nonpoint source pollution plans). 117 Id. § 1362(6). However, the Act also specifies that “pollutant” does not mean (A) “sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces” within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. Id. 118 See generally, e.g., Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist., 280 F.3d 1364 (11th Cir. 2002) (establishing a “but for” test to 24 WASHINGTON LAW REVIEW [DRAFT If federal jurisdiction exists, the most common way of complying with the Clean Water Act is to get a permit. Persons discharging “dredged” or “fill” material119 into the navigable waters must obtain a Section 404 “dredge and fill” permit from the U.S. Army Corps of Engineers120 or, in limited circumstances, from the relevant state.121 Persons discharging any other kind of pollutant into the navigable waters or the ocean must generally obtain a Section 402 National Pollutant Discharge Elimination System (NPDES) permit, generally now from the relevant state, 122 although the EPA has NPDES permitting authority in non-­‐
delegated states and tribal lands.123 Water quality criteria and state water quality standards can affect the exact terms of a particular permit. For example, for Section 404 permits, the EPA has determine whether an addition of pollutants has occurred); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 491-­‐93 (2d Cir. 2001) (invoking a “natural flow” test for whether an addition of pollutants has occurred); Dubois v. U.S. Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996) (holding that waters that flow non-­‐naturally from a more polluted to a less polluted water body “add” pollutants for purposes of the Act). 119 “Dredged material” is “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(c) (2014). “Fill material,” in turn, is “material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of a water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 33 C.F.R. § 323.2(e) (2014). 120 33 U.S.C. § 1344(a), (d) (2012). 121 Id. § 1344(g). While the Act allows state to acquire Section 404 permitting authority, however, that authority does not extend to the traditionally navigable waters. Id. § 1344(g)(1). Moreover, only two states, Michigan and New Jersey, have acquired Section 404 permitting authority. U.S. EPA, State or Tribal Assumption of the Section 404 Permit Program, http://www.epa.gov/owow/wetlands/facts/fact23.html (last updated Jan. 12, 2009). As a result, the Army Corps issues almost all Section 404 permits. 122 Id. § 1342(b). Unlike for Section 404 permits, most states have acquired at least partial NPDES permitting authority. U.S. EPA, National Pollutant Discharge Elimination System (NPDES): State Program Status, http://cfpub.epa.gov/npdes/statestats.cfm (last updated April 14, 2003). Therefore, states issue most NPDES permits. 123 33 U.S.C. § 1342(a) (2012). 2015] Dealing with Ocean Acidification 25 issued the Section 404(b)(1) Guidelines under the Act.124 These Guidelines specify that, in general: dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystem of concern.125 More specifically, inter alia, the Guidelines explicitly prohibit discharges of dredged or fill material that cause or contribute to violations of state water quality standards. 126 State water quality standards, and the reference water quality criteria that they rely on, can thus directly influence both the issuance and the terms of a Section 404 permit. In contrast, the terms of NPDES permits generally derive from the Act’s various technology-­‐based effluent limitations.127 An effluent limitation under the Act is: any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharge from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.128 Technology-­‐based effluent limitations are generally thus numeric limitations on the amount of concentration of a specific pollutant that can be discharged from a point source, based on the technology available within the relevant industry to control that discharge. These effluent limitations constitute the starting point for discharge limitations in an NPDES permit. However, NPDES permits must include terms that are more stringent than what the applicable technology-­‐based effluent limitations would require when addition pollution control is necessary to ensure that the waterbody meets state-­‐
set water quality standards.129 Thus, state water quality standards constitute the 124 33 U.S.C. § 1344(b)(1) (2012); 40 C.F.R. Part 230 (2014). 125 40 C.F.R. § 230.1(c) (2014). 126 Id. § 230.10(b). 127 33 U.S.C. § 1311(b) (2012). 128 Id. § 1362(11). 129 Id. §§ 1312(a), 1313(c). 26 WASHINGTON LAW REVIEW [DRAFT regulatory “backstop” to protect specific waters even when the industry-­‐wide technology-­‐based effluent limitations cannot do the job. State water quality standards also drive the Section 303(d) process, which is designed to ensure that states continue to make progress toward their ultimate water quality goals. Under this process, states are supposed to identify all state waters that do not meet their water quality standards, generating a biennial “impaired waters” or Section 303(d) list.130 States then rank these impaired waters in order of priority131 and begin to set total maximum daily loads (TMDLs) for them. Specifically, the state sets a TMDL for each pollutant contributing to the water quality standard violation.132 A TMDL is the total amount of a specific pollutant that can be added to the water body on a daily basis without violating the relevant water quality standard. Setting a TMDL can be time-­‐consuming and expensive,133 and most states and the EPA have set them only in response to litigation.134 However, setting the TMDL is only the first step in the process. Once the TMDL exists, the state must divvy up this pollutant allowance among the point sources (the waste load allocation, or WLA), nonpoint sources (the load allocation, or LA), and natural background sources.135 Thus, a TMDL can lead both to amendments of NPDES permits to impose more stringent discharge requirements and to revisions in state nonpoint source regulation. If states begin settling TMDLs for ocean acidification, nonpoint source regulation is likely to be the most relevant state response, given that carbon dioxide emissions (a form of atmospheric deposition), most nutrient pollution, and coastal upwelling all qualify as nonpoint source or background pollution. 130 Id. § 1313(d)(1). 131 Id. § 1313(d)(1). 132 Id. 133 U.S. EPA, TMDL DEVELOPMENT COST ESTIMATES: CASE STUDIES OF 14 TMDLS 13 (May 1996) (reporting that 8 of 14 TMDLs studied in the 1990s cost between $100,000 and over $1 million each just to develop). Virginia expects to spend over $10.7 million over the course of 10 years to develop and implement TMDLs required by litigation. Virginia Department of Environmental Quality, TMDL Program Five Year Progress Report 2 (Feb. 2005), available at http://www.deq.state.va.us/export/sites/default/tmdl/pdf/04rptfs.pdf. 134
U.S. EPA, Litigation Status: TMDL Litigation by State, http://www.epa.gov/owow/tmdl/lawsuit.html (last updated Feb. 23, 2009). 135 40 C.F.R. § 130.2(g), (h), (i) (2014). 2015] B. Dealing with Ocean Acidification 27 The National Recommended (Reference) Water Quality Criterion for Ocean pH The EPA began assembling its national recommended water quality criteria even before the Clean Water Act’s passage, in the 1968 so-­‐called “Green Book.” 136 Immediately after the Act’s passage in 1972, the EPA published its 1973 “Blue Book” of water quality criteria.137 Most of the current nationally recommended water quality criteria, however, have evolved from the EPA’s next two compendia, the 1976 “Red Book”138 and the 1986 “Gold Book,” but they also include more recent additions and amendments. The Red Book’s criterion for pH in marine waters was based on the water quality needs of aquatic life (rather than, say, human health) and was set at 6.5-­‐8.5, a narrower range than for freshwater139 but still a fairly broad range. 140 The EPA limited this breadth, however, by further specifying that pH changes in specific waterways could be “not more than 0.2 units outside of normally occurring range.”141 The recommended criterion thus recognized both that marine waters have a wide range of “normal” pH statuses and that small changes in that normal range, whatever it is, are likely to be harmful to marine organisms. According to the best science available in 1976, normal seawater pH at the surface ranges from 8.0 to 8.2, but ocean pH decreases to 7.7 or 7.8 in deeper waters,142 a reflection, among other things, of the greater ability of cold water to absorb carbon dioxide. Tropical and subtropical marine waters can be even more variable, and “in the shallow, biologically active waters in tropical or subtropical areas, large diurnal pH changes occur naturally because of photosynthesis,” ranging from a pH of 9.5 in daytime to a pH of 7.3 just before dawn.143 The EPA also concluded that the science indicated that marine invertebrates were probably 136 U.S. EPA, QUALITY CRITERIA FOR WATER 1986, at ii (May 1, 1986), available at http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/upload/2009
_01_13_criteria_goldbook.pdf. 137 Id. 138 U.S. EPA, QUALITY CRITERIA FOR WATER (July 1976), available at http://water.epa.gov/scitech/swguidance/standards/criteria/current/upload/20
09_01_13_criteria_redbook.pdf. 139 The EPA noted that “[b]ecause of the buffering system present in sea water, the naturally occurring variability of pH is less than in fresh water.” Id. at 342. 140 Id. at 337. 141 Id. 142 Id. 143 Id. 28 WASHINGTON LAW REVIEW [DRAFT more sensitive to pH changes than marine fish, and it suggested that oysters and oyster larvae would be adversely affected at pH levels of about 6.5 (acidic) or 9.0 (basic).144 Moreover, it cautioned states, “rapid pH fluctuations that are due to waste discharges should be avoided.”145 The EPA carried the 1976 marine pH criterion unchanged into the 1986 “Gold Book,”146 and these Gold Book marine pH recommended criteria remained in place for the 1998 compilation of water quality criteria, as well.147 Indeed, the EPA’s current web site of national recommended water quality criteria still relies on both the Red Book and the Gold Book as the sources for the marine pH criterion.148 As a result, when the CBD filed its 2007 petition with the EPA, the EPA had not amended the Section 304 national recommended marine pH criterion since at least 1976. Whether the science of ocean acidification is yet definitive enough to force either set of regulators to alter their standards, however, is a complex issue, and so far the EPA, the states, and the courts are not convinced. C. The CBD, the EPA, NOAA, and the Courts on Ocean Acidification The CBD and the EPA have now engaged in an eight-­‐years-­‐and-­‐counting skirmish over ocean acidification and the Clean Water Act, with the most helpful administrative response actually coming from NOAA. Moreover, the CBD’s Clean Water Act efforts have now evolved beyond the Section 304 reference water quality criterion issue to the Section 303(d) impaired waters lists and TMDL process. 1. Section 304 Reference Water Quality Criteria for Marine pH When the EPA failed to respond to the CBD’s 2007 petition, the CBD filed notice of its intent to sue for failure to respond on November 13, 2008.149 The CBD 144 Id. 145 Id. at 343. 146 U.S. EPA, QUALITY CRITERIA FOR WATER 1986 (May 1, 1986), available at http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/upload/2009
_01_13_criteria_goldbook.pdf. 147 U.S. EPA, National Recommended Water Quality Criteria; Republication, 63 Fed. Reg. 68,354, 68,361 (Dec. 10, 1998). 148
U.S. EPA, National Recommended Water Quality Critieria, http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm (as updated June 29, 2015 and viewed July 3, 2015). 149 Center for Biological Diversity, “Environmental Protection Agency Warned to Address Ocean Acidification or Face Lawsuit,” 2015] Dealing with Ocean Acidification 29 alleged in this notice of intent that “the EPA’s current water-­‐quality criterion for pH is outdated and woefully inadequate in the face of ocean acidification. A decline of 0.2 pH—allowed under the current standard—would be devastating to the marine ecosystem.”150 Thus, the CBD directly challenged the EPA’s aquatic life protection rationale for the national recommended marine pH criterion, alleging that the permitted variation in pH was already too much for organisms to handle. Notably, however, the CBD also emphasized that ocean pH has already changed on average 0.11 pH units, 151 meaning that—even under the EPA’s current water quality criterion—ocean acidification has already driven ocean pH, on average, more than halfway to a pervasive Clean Water Act violation. In response to the CBD’s notice of intent to sue, in April 2009 the EPA published a Notice of Data Availability in the Federal Register, which both solicited additional scientific information regarding ocean acidification and notified the public of the EPA’s “intent to review the current aquatic life criterion for marine pH to determine if a revision is warranted to protect the marine designated uses of States and Territories pursuant to Section 304(a)(1) of the Clean Water Act.”152 The EPA later stated its intent to respond to the CBD’s petition by spring of 2010.153 Nevertheless, given the wide variability of “normal” marine pH values and insufficient data regarding ocean acidification and its impacts on aquatic life, the EPA decided in 2010 to not revise the Section 304 national recommended reference marine pH water quality criterion. 154 This decision is arguably scientifically vulnerable. Ocean science has evolved considerably since 1976, especially with respect to the more-­‐recently-­‐identified phenomenon of ocean http://www.biologicaldiversity.org/news/press_releases/2008/ocean-­‐
acidification-­‐11-­‐13-­‐2008.html (Nov. 13, 2008). 150 Id. 151 Id. 152 U.S. EPA, Ocean Acidification and Marine pH Water Quality Criteria, 74 Fed. Reg. 17,484, 17,484 (April 15, 2009). 153 U.S. EPA, Clean Water Act Section 303(d): Notice of Call for Public Comment on 303(d) Program and Ocean Acidification, 75 Fed. Reg. 13,537, 13,538 (March 22, 2010). 154 Memorandum from Denise Keehner, Director, Office of Wetlands, Oceans, and Watersheds, U.S. EPA, to Water Division Directors, Regions 1-­‐10, on “Integrated Reporting and Listing Decisions Related to Ocean Acidification,” dated Nov. 15, 2010, at 4 available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/oa_memo_nov20
10.pdf. 30 WASHINGTON LAW REVIEW [DRAFT acidification and its actual and potential impacts on marine organisms. As noted above, current ocean acidification science suggests that shellfish impacts are already occurring with global average pH changes of 0.1, suggesting that the CBD may be correct that the 0.2 average deviation is not in fact sufficient to protect marine aquatic life. Moreover, as will be discussed in more detail below, nothing in the EPA’s national water quality criterion actually requires coastal states to tailor the standard to their own coastal waters—or, most maddeningly, to establish a baseline “normal” pH for those specific waters. As a result, both the EPA’s criterion and the states’ implementation of it have become problematic. Nevertheless, neither the EPA nor the CBD have (yet) pursued this specific Clean Water Act issue further. 2. Section 303(d): The CBD’s 2009 Impaired Waters Litigation and Its Aftermath In March 2009, the CBD refocused its Clean Water Act/ocean acidification attention on Section 303(d) and TMDLs, filing suit against the EPA, alleging that the EPA should not have approved the State of Washington’s 2008 Section 303(d) list of impaired waters. The CBD alleged that ocean acidification was already causing pH water quality standard violations in Washington’s territorial sea, which Washington had failed to list as impaired.155 More specifically, according to the CBD, “Scientists monitoring waters off the coast of Washington reported that ocean acidification is already affecting seawater quality and marine ecosystems. According to the 2008 report in the Proceedings of the National Academy of Sciences, since 2000 the pH of Washington’s coastal waters has declined by more than 0.2 units, violating the state’s water-­‐quality standard for pH.”156 The EPA described this first round of impaired waters litigation as follows: The Center for Biological Diversity (CBD) filed a complaint against EPA on May 14th, 2009 challenging EPA’s approval of Washington State’s 2008 303(d) list citing failure to include coastal waters as impaired for marine pH. In addition, CBD has sent letters to 14 States and 2 Territories requesting that they list under CWA Section 303(d) 155 Center for Biological Diversity, “Lawsuit Filed Against Environmental Protection Agency for Failure to Combat Ocean Acidification,” http://www.biologicaldiversity.org/news/press_releases/2009/ocean-­‐
acidification-­‐05-­‐14-­‐2009.html (May 14, 2009). 156 Id. 2015] Dealing with Ocean Acidification 31 all ocean waters impaired by ocean acidification, and revise their marine pH criteria.157 The lawsuit settled 10 months later, with the EPA agreeing to consider “how states can address ocean acidification under the Clean Water Act.”158 As part of fulfilling its settlement promise, the EPA in March 2010 called for public comment on how the Clean Water Act’s Section 303(d) program—that is, the impaired waters and TMDL program—could help to address ocean acidification. 159 According to the EPA, “Ocean acidification presents a suite of environmental changes that would likely negatively affect ocean ecosystems, fisheries, and other marine resources.”160 The EPA emphasized impacts on shell-­‐
forming organisms in particular, noting that “[c]alcifying marine organisms may be adversely affected by future ocean acidification if declining carbonate saturation influences their ability to produce shells and skeletons out of calcium carbonate. For instance, ocean acidification would likely reduce calcification rates in corals, and may affect shellfish species such as oysters, clams, and crabs.”161 The EPA’s notice generated about 30,000 comments in 60 days, most of which supported using the Clean Water Act to address ocean acidification.162 In accordance with the settlement agreement, moreover, on November 15, 2010, the EPA issued a guidance memorandum to the ten EPA Regions on 157 U.S. EPA, Clean Water Act Section 303(d): Notice of Call for Public Comment on 303(d) Program and Ocean Acidification, 75 Fed. Reg. 13,537, 13,538 (March 22, 2010) (citing Center for Biological Diversity v. EPA, No. 2:09cv670 (W. D. Wash. 2009)). 158 Center for Biological Diversity, “Legal Settlement Will Require EPA to Evaluate How to Regulate Ocean Acidification Under Clean Water Act,” http://www.biologicaldiversity.org/news/press_releases/2010/ocean-­‐
acidification-­‐03-­‐11-­‐2010.html (March 11, 2010). 159 U.S. EPA, Clean Water Act Section 303(d): Notice of Call for Public Comment on 303(d) Program and Ocean Acidification, 75 Fed. Reg. 13,537, 13,537 (March 22, 2010). 160 Id. (citations omitted). 161 Id. (citations omitted). 162 Memorandum from Denise Keehner, Director, Office of Wetlands, Oceans, and Watersheds, U.S. EPA, to Water Division Directors, Regions 1-­‐10, on “Integrated Reporting and Listing Decisions Related to Ocean Acidification,” dated Nov. 15, 2010, at 2 available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/oa_memo_nov20
10.pdf. 32 WASHINGTON LAW REVIEW [DRAFT “Integrated Reporting and Listing Decisions Related to Ocean Acidification.”163 The EPA noted that, “[a]s a result of absorbing large quantities of human-­‐made CO2 emissions, ocean chemistry is changing, which is likely to negatively affect important marine ecosystems and species, including coral reefs, shellfish, and fisheries. In addition, [ocean acidification] could cause these ecosystems to become even more vulnerable to other environmental impacts, especially those from climate change, such as increases in sea surface temperatures.”164 In terms of the Clean Water Act, it also noted that “all 23 coastal States and 5 Territories . . . have marine pH water quality criteria (WQC) in place that are similar to EPA’s CWA 304(a)(1) recommended national criterion” and that “more than half the States have coastal monitoring programs.”165 However, “in most coastal regions, data are not readily available to characterize short-­‐term marine pH diurnal and seasonal variability, or to quantify a normally occurring pH ‘baseline’ necessary to identify variation from natural and any long-­‐term trends.”166 In other words, states don’t know what the “normal” pH of their territorial seas actually is, making quantifiable assessment of ocean acidification’s impact almost impossible. This fact, as a practical if not legal matter, affects what states can do with their Section 303(d) listings of impaired coastal waters. The EPA’s November 2010 guidance reflects the increasing tension between legal requirements and scientific knowledge: EPA has concluded that States should list waters not meeting water quality standards, including marine pH WQC, on their 2012 303(d) lists, and should also solicit existing and readily available information on [ocean acidification] using the current 303(d) listing program framework. This Memorandum does not elevate in priority the assessment and listing of waters for [ocean acidification], but simply recognizes that waters should be listed for [ocean acidification] when data are available. EPA recognizes that information is absent or limited for [ocean acidification] parameters and impacts at this point in time and, therefore, listings for ocean acidification may be absent or limited in many States.167 163 Memorandum from Denise Keehner, Director, Office of Wetlands, Oceans, and Watersheds, U.S. EPA, to Water Division Directors, Regions 1-­‐10, on “Integrated Reporting and Listing Decisions Related to Ocean Acidification,” dated Nov. 15, 2010. 164 Id. at 1. 165 Id. at 4. 166 Id. (citation omitted). 167 Id. 2015] Dealing with Ocean Acidification 33 The EPA promised more guidance when more scientific information becomes available.168 In the interim, it recommended that coastal states regularly solicit information about ocean acidification in their individual waters. 169 It also encouraged states to develop ocean acidification assessment methods for their territorial seas,170 and, “to improve implementation of the marine pH criteria, EPA suggests States begin requesting information on, and developing methods for, interpreting their marine pH water quality standards related to natural condition,”171 particularly with respect to marine life like coral reefs.172 Finally, the EPA again emphasized that states have considerable discretion in prioritizing TMDL development for impaired waters, and it clearly conveyed its own position that it does not believe that enough information yet exists regarding ocean acidification to allow coastal states to develop ocean acidification-­‐related carbon TMDLs.173 The clear expectation from the EPA’s guidance memorandum, therefore, is that states will not be rushing to generate ocean acidification-­‐based TMDLs anytime in the near future. In fact, the EPA’s memorandum implies that any such TMDLs would be scientifically indefensible. Nevertheless, as the EPA also acknowledged, coastal states are not powerless in the face of ocean acidification problems: States could address [ocean acidification] impacts immediately by evaluating marine waters that are currently listed for other pollutants and that are considered vulnerable to [ocean acidification] (e.g., waters with coral reefs, marine fisheries, shellfish resources). For example, researchers have demonstrated that nutrient enrichment can also lead to decreases in marine pH due to natural respiration processes and remineralizing dead organic matter back to CO2. States could focus their efforts on these [ocean acidification]-­‐vulnerable waters to promote ecological restoration.174 168 Id. at 4-­‐5. 169 Id. at 6. 170 Id. at 7. 171 Id. at 9. 172 Id. at 11. 173 Id. at 12. 174 Id. (citation omitted). 34 WASHINGTON LAW REVIEW [DRAFT Therefore, the EPA’s advice to coastal states, in essence, is to learn more, measure more, start keeping long-­‐term records, and take care of other pollution problems first. While the EPA’s November 2010 guidance memorandum is hardly the ocean acidification “call to action” that the CBD was probably hoping for, it is also probably worthwhile to consider ocean acidification-­‐based impaired waters listing and TMDL development in the context of the Section 303(d) program more generally. A perhaps surprisingly low percentage of the nation’s waters have actually been subject to water quality assessments—only about 19% in 2002—and of those, about 40% are assessed to be impaired.175 Given the dearth of water quality assessment even in freshwaters, it is perhaps unsurprising that states have not been assessing coastal waters for ocean acidification. Moreover, while more information about ocean acidification would certainly be helpful, a TMDL is highly unlikely to be the most efficient way to address the relevant sources—air emissions of carbon dioxide and mostly nonpoint (agricultural) sources of nutrient pollution (as in the Chesapeake Bay states). As Part IV will discuss in more detail, motivated coastal states have in fact been using other mechanisms to address their ocean acidification problems. 3. Section 303(d): The CBD’s 2013 Lawsuit Despite the acknowledged science gaps regarding ocean acidification, the CBD contends that there is enough scientific data about ocean acidification in some coastal waters to warrant the application of the Clean Water Act’s Section 303(d) process. In 2013, the CBD filed suit against the EPA in the U.S. District Court for the Western District of Washington, challenging the EPA’s approval of Washington’s and Oregon’s 2010 submissions of their Section 303(d) impaired waters lists—
neither of which included coastal waters impaired by ocean acidification.176 On cross-­‐motions for summary judgment, the Western District of Washington upheld the EPA’s approval of the two states’ lists as not being arbitrary and capricious, granting the EPA’s motion for summary judgment and denying the CBD’s.177 The court acknowledged that both Washington and Oregon have water quality standards that implicate ocean acidification,178 and it found the 175 OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION 4 (2d ed. 2002). 176 Center for Biological Diversity v. U.S. Environmental Protection Agency, -­‐-­‐-­‐ F. Supp. 2d -­‐-­‐-­‐, 2015 WL 9188686, at *1 (W.D. Wash. March 2, 2015). 177 Id. at *31. 178 Id. at *2-­‐*3. 2015] Dealing with Ocean Acidification 35 CBD to have standing.179 On the merits, the CBD raised two issues: “(1) EPA’s explanation for its decision to approve Washington’s and Oregon’s Section 303(d) lists runs counter to the evidence before the agency and is implausible in light of that evidence, and (2) Washington and Oregon failed to consider all existing and readily available water quality data when creating their impaired waters lists.”180 With respect to Washington, the CBD relied on the Wooten study, which “analyzed eight years of pH data from a tidepool on Tatoosh Island, which is located off the northwestern tip of Washington’s Olympic Peninsula at the mouth of the Strait of Juan de Fuca.”181 According to the CBD, the data showed a steady decline in pH in the tidepool amounting to a decline of 0.368 pH units over eight years—more than the 0.2 pH unit change allowed under both the EPA’s national reference marine pH criterion and Washington’s own water quality standards.182 Washington rejected the study for three reasons: it did not prove that the pH changes were from anthropogenic causes; the monitoring site was located within the Makah Indian Reservation, out of the state’s regulatory jurisdiction; and data from the tidepool could not be extrapolated to the larger waters beyond, including the Strait itself.183 The EPA also independently reviewed the Wooten study and rejected its implications for waters outside of the tidepool for many of the same reasons. 184 The court upheld both Washington’s and the EPA’s reasoning, emphasizing that the Wooten study “did not take into consideration natural processes, such as river discharge effects”185 and concluding that, “even if the Wooten study did prove violations of Washington’s numerical pH standard [in the tidepool on tribal land], EPA was justified in determining that the study’s results did not require listing adjacent waters, such as the Strait of Juan de Fuca.”186 The CBD also claimed that ocean acidification is causing violations of Oregon’s and Washington’s narrative water quality standards regarding shellfish.187 For example, “[m]ost of Washington’s coastal waters are designated as ‘extraordinary quality’ or ‘excellent quality’ for aquatic life uses, which include ‘clam, oyster, and mussel rearing and spawning; crustaceans and other shellfish 179 Id. at *6-­‐*13. 180 Id. at *13. 181 Id. at *17. 182 Id. 183 Id. at *18. 184 Id. 185 Id. 186 Id. at *19. 187 Id. 36 WASHINGTON LAW REVIEW [DRAFT (crabs, shrimp, crayfish, scallops, etc.) rearing and spawning.’”188 In addition, “for both aquatic life uses and shellfish harvesting, ‘deleterious material concentrations must be below those which have the potential . . . to adversely affect characteristic water uses [or] cause acute or chronic conditions to the most sensitive biota dependent upon those waters.’” 189 Similarly, “Oregon’s coastal waters are designated for the beneficial uses of ‘fish and aquatic life,’ as well as fishing.”190 Oregon’s “[n]arrative water quality criteria provide that ‘[w]aters of the state must be of sufficient quality to support aquatic species without detrimental changes in the resident biological communities,’ and that the ‘creation of . . . conditions that that deleterious to fish or other aquatic life . . . may not be allowed.’”191 According to the CBD, based primarily on laboratory and shellfish aquaculture studies, ocean acidification is clearly having detrimental impacts on shellfish in Oregon and Washington. However, the district court concluded that “CBD’s evidence regarding observations of declining wild shellfish populations in the Pacific Northwest is scant,”192 that the EPA was reasonable in its conclusion that “laboratory studies did not reflect natural conditions, and therefore could not be extrapolated to show harm to wild populations,”193 and that the EPA reasonably concluded that hatchery studies in specific bays “could not be extrapolated to require listing of distant or dissimilar Washington and Oregon waters.”194 Nevertheless, the district court noted, it was a closer question as to whether the hatchery studies were sufficient to require listing of the waters actually studied, such as Netarts Bay in Oregon, and it chided the EPA for relying solely on the states’ numeric water quality criteria for pH to reject the studies’ implications. 195 Nevertheless, deferring to the EPA’s “technical expertise,” the court accepted the EPA’s explanation of why oyster hatchery die-­‐offs from ocean acidification in both Oregon and Washington did not require those states to list the local waters as impaired, because those die-­‐offs demonstrated nothing about the effects of ocean acidification on wild and natural populations—an analytical limitation the court accepted for both states even though Oregon’s standards (unlike Washington’s) do not clearly exclude effects on hatchery or farmed shellfish populations.196 188 Id. at *2 (citing WASH. ADMIN. CODE §§ 173-­‐201A-­‐612, 173-­‐201A-­‐210(1)(a)). 189 Id. (citing WASH. ADMIN. CODE § 173-­‐201A-­‐260(2)(a)). 190 Id. at *3 (citing OR. ADMIN. RULES § 340-­‐041-­‐0220 et seq.). 191 Id. (citing OR. ADMIN. RULES §§ 340-­‐041-­‐0011, 340-­‐041-­‐0007(10)). 192 Id. at *20. 193 Id. at *21. 194 Id. at *22. 195 Id. 196 Id. 2015] Dealing with Ocean Acidification 37 As for the CBD’s second argument, the district court could identify no data that Oregon had not considered in compiling its 2010 impaired waters list.197 As for Washington, the court upheld Washington’s reasoned explanation for rejecting long-­‐term marine monitoring data as not credible,198 and it concluded that there was “no indication in the record that marine pH data from the USGS, STORET, and NOAA databases were submitted to [the Washington Department of] Ecology (or, later, EPA) for consideration, or that the possibility of obtaining additional marine pH data from the USGS and STORET databases was otherwise raised before Ecology or EPA by CBD or any other party.”199 As this Article goes to press, there is no indication that the CBD will appeal the district court’s decision to the U.S. Court of Appeals for the Ninth Circuit. However, the CBD is already pursuing a similar lawsuit based on the EPA’s decision to approve Oregon’s and Washington’s 2012 Section 303(d) impaired waters lists.200 These sequential lawsuits will presumably continue to focus on the issue of when exactly affected coastal states know enough about the particular impacts of ocean acidification in specific waters (and apparently on wild and natural populations) to trigger the Clean Water Act’s Section 303(d) process. Notably, the Western District of Washington upheld the EPA in allowing a fairly high knowledge threshold before coastal waters must be deemed “impaired” for ocean acidification under the Clean Water Act: Area-­‐specific studies must demonstrate that anthropogenic causes (preferably human emissions of carbon dioxide) are causing decreases in local pH that either are greater than 0.2 pH units from “normal” or are causing demonstrable impacts on wild/natural populations of marine life. This standard hardly reflects a precautionary approach to impaired waters listings for ocean acidification—although, again, it is not always clear what the TMDL process could actually accomplish. Nevertheless, some coastal states are likely to cross even that high knowledge threshold sometime in the near future. Indeed, one of the perverse ironies of the CBD’s Section 303(d) litigation is that some of the states—like Oregon and Washington—that are resisting ocean acidification-­‐based Section 197 Id. at *25. 198 Id. at *25-­‐*28. 199 Id. at *28. 200 Susannah L. Bodman, “Lawsuit over ocean acidification in Oregon, Washington gets a hearing in Seattle,” The Oregonian, Feb. 10, 2015, http://www.oregonlive.com/pacific-­‐northwest-­‐
news/index.ssf/2015/02/ocean_acidification_seattle.html. 38 WASHINGTON LAW REVIEW [DRAFT 303(d) listings are also leaders in intensively pursuing state and regional ocean acidification programs. This Article turns to those state and regional programs in Part IV. 4. Parallel Developments: The National Ocean Policy, the FOARAM Act, and NOAA As the EPA itself has noted repeatedly,201 the CBD’s efforts to apply the Clean Water Act to ocean acidification arose concurrently with several other federal efforts to improve ocean management generally and to address ocean acidification in particular. For example, on July 19, 2010, President Barack Obama issued Executive Order 13547 to establish a National Ocean Policy. 202 This Executive Order established a National Ocean Council and charged it and all federal agencies to pursue the recommendations of the Interagency Ocean Policy Task Force.203 These recommendations included a policy to “provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification . . . .”204 Thus, the National Ocean Council is now addressing ocean acidification. Congress has also addressed ocean acidification. For instance, on March 30, 2009, it enacted (as part of the Omnibus Public Land Management Act of 2009), the Federal Ocean Acidification Research and Monitoring (FOARAM) Act of 2009.205 This Act appropriated $96 million to NOAA and NASA, spread over four years,206 to: (1) develop a comprehensive interagency plan to research and monitor ocean acidification and establish an interagency ocean acidification research and monitoring program; (2) establish an ocean acidification program within NOAA; (3) assess the effects of ocean acidification on ecosystems and socioeconomics, both nationally and regionally; and (4) develop adaptation techniques that will effectively conserve marine ecosystems even as they cope with ocean acidification.207 201 E.g., U.S. EPA, Clean Water Act Section 303(d): Notice of Call for Public Comment on 303(d) Program and Ocean Acidification, 75 Fed. Reg. 13,537, 13,539 (March 22, 2010). 202 Pres. Barack Obama, Exec. Order No. 13547: Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75 Fed. Reg. 43,023 (July 19, 2010). 203 Id. §§ 1, 4, 75 Fed. Reg. at 43,023, 43,024. 204 Id. § 1, 75 Fed. Reg. at 43,023. 205 Pub. L. No. 111-­‐11, §§ 12401-­‐12409, 123 Stat. 991, 1436-­‐42 (March 30, 2009). 206 Id. § 12409, 123 Stat. at 1441-­‐42. 207 Id. § 12402, 123 Stat. at 1436-­‐37. 2015] Dealing with Ocean Acidification 39 In response to the FOARAM Act, NOAA has established an ocean acidification program.208 Moreover, on March 26, 2014, NOAA and its partners in the Interagency Working Group on Ocean Acidification released their Strategic Plan for Federal Research and Monitoring of Ocean Acidification.209 The Working Group was “guided by the following vision: ‘A nation, globally engaged and guided by science, sustaining healthy marine and coastal ecosystems, communities, and economies through informed responses to ocean acidification.’ This vision reflects the intention that U.S. ocean-­‐acidification efforts be societally relevant and to be based on the best available information and science.” 210 The plan has seven themes—“(1) monitoring; (2) research; (3) modeling; (4) technology development; (5) socioeconomic impacts; (6) education, outreach, and engagement strategies; and (7) data management and integration”—and it recommends both short-­‐ and long-­‐term research.211 The plan also identifies 13 goals for ocean acidification research and monitoring, five of which are directly relevant to effectively implementing Clean Water Act water quality criteria, water quality standards, and TMDL processes, including identifying coastal waters that actually have been impacted by ocean acidification. These goals include: (1) “Develop[ing] comprehensive models to predict changes in the ocean carbon cycle, oceanic carbonate-­‐buffer systems, and impacts on marine ecosystems and organisms”; (2) Ensur[ing] the ability to measure all required parameters with adequate data quality through technology development and standardization of measurements”; (3) “Undertak[ing] investigations that translate and reconcile laboratory results with real-­‐world situations”; (4) “Develop[ing] vulnerability assessments for various CO2 emissions scenarios”; and (5) “Identify[ing] and engag[ing] stakeholders and local communities in developing adaptation and mitigation strategies for responsible stewardship of marine and Great Lakes organisms and ecosystems.”212 The very need for this research plan, however, suggests that the EPA’s 2010 assessment of the current state of place-­‐specific ocean acidification science for Clean Water Act purposes is generally correct: Most coastal states do not have the 208 National Oceanic & Atmospheric Administration, NOAA Ocean Acidification Program, http://oceanacidification.noaa.gov (as viewed July 4, 2015). 209 Interagency Working Group on Ocean Acidification, Strategic Plan for Federal Research and Monitoring of Ocean Acidification (March 2014), available at https://www.whitehouse.gov/sites/default/files/microsites/ostp/NSTC/iwg-­‐
oa_strategic_plan_march_2014.pdf. 210 Id. at 6. 211 Id. 212 Id. at 7. 40 WASHINGTON LAW REVIEW [DRAFT scientific data and support necessary to even assess problematic changes in pH (short-­‐term or long-­‐term) in their local waters, let alone implement meaningful TMDLs that will make a difference to marine health. NOAA’s research plan, if implemented well and quickly, may help to provide coastal states with much-­‐
needed information to undergird their coastal water quality programs, potentially improving legal responses to ocean acidification in the future. In the mean time, however, a few states are also exploring other approaches to ocean acidification, the subject of Part IV. IV. STATE AND REGIONAL APPROACHES TO OCEAN ACIDIFICATION The Clean Water Act, of course, is not the only possible legal response to ocean acidification. Arguably, moreover, the purpose of the Section 303(d) process is to make states aware of their ocean acidification problems and to prompt state law regulation of sources—often nonpoint sources like atmospheric carbon dioxide or nutrient pollution runoff—to improve water quality. However, as noted, without large-­‐scale and probably global regulation of carbon dioxide emissions, the main cause of ocean acidification is largely beyond individual state control. Some states and coastal regions affected by ocean acidification have been responding to that problem—but they have chosen to do so outside of the relatively constricting structure of the Clean Water Act. These state and regional programs document the potential scope of the ocean acidification problem for ecosystems and industries within individual states and tend to emphasize techniques to both minimize and adapt to ocean acidification. This Part provides a snapshot of state and regional ocean acidification programs. It focuses on Washington, the first state to seriously address ocean acidification through state law and policy; Maine, which enacted ocean acidification legislation in 2014 and released its ocean acidification report and recommendations in 2015; and the still-­‐nascent regional ocean acidification efforts along the West Coast. A. Washington’s Ocean Acidification Program 1. Ocean Acidification in Washington As noted, “Puget Sound has some of the world’s most corrosive waters. Scientists are finding that marine waters in the Northwest have become so 2015] Dealing with Ocean Acidification 41 corrosive that they are eating away at oyster shells before they can form.”213 Indeed, effects on oyster and other shellfish aquaculture within the State of Washington—and especially in Puget Sound—are what first turned state regulators’ attention to the ocean acidification problem. As Washington’s Blue Ribbon Panel on Ocean Acidification would later recount, Between 2005 and 2009, disastrous production failures at Pacific Northwest oyster hatcheries signaled a shift in ocean chemistry that has profound implications for Washington’s marine environment. Billions of oyster larvae were dying at the hatcheries, which raise young oysters in seawater. Research soon revealed the cause: the arrival of low-­‐pH seawater along the West Coast, which created conditions corrosive to shell-­‐forming organisms like young oysters. The problem, in short, was ocean acidification.214 Ocean acidification in Washington threatens the state’s coastal ecology, the livelihoods of its Tribes, and several economic industries.215 Several sources cause and exacerbate ocean acidification in Washington coastal waters. As is true for oceans everywhere, “[c]arbon dioxide emissions are the leading cause of ocean acidification.”216 Moreover, according to Washington’s team of scientists, “At the current rate of carbon dioxide emissions, the average acidity of the surface ocean is expected to increase by 100 to 150 percent over preindustrial levels by the end of this century.”217 In addition, however, several regional and local causes exacerbate Washington’s vulnerability to ocean acidification. At the regional level, Washington and the Pacific Coast generally face increased threats from open ocean upwelling: 213 Pacific Marine Environmental Laboratory, NOAA, Acidifying Water Takes Toll on Northwest Shellfish, http://www.pmel.noaa.gov/co2/story/Acidifying+Water+Takes+Toll+On+Northw
est+Shellfish (as viewed June 29, 2015). 214 WASHINGTON STATE BLUE RIBBON PANEL ON OCEAN ACIDIFICATION, OCEAN ACIDIFICATION: FROM KNOWLEDGE TO ACTION, WASHINGTON STATE’S STRATEGIC RESPONSE xi (2012), available at https://fortress.wa.gov/ecy/publications/publications/1201015.pdf [hereinafter 2012 WASHINGTON PANEL REPORT]. 215 Id. at 4-­‐5. 216 Id. at 9. 217 Id. 42 WASHINGTON LAW REVIEW [DRAFT When strong northerly winds blow along Washington’s outer coast, surface seawater is pushed away from the coastline and deeper offshore water is drawn up to replace it. This upwelled water is naturally rich in nutrients, high in carbon dioxide, and low in pH due to biological processes in the ocean. However, today’s upwelled waters are also carrying an ever-­‐growing load of human-­‐generated carbon dioxide picked up from the atmosphere 30 to 50 years ago when the water was last in contact with the atmosphere. As a result, today’s upwelled water is more corrosive to calcifying organisms like oysters, clams, scallops, mussels, crabs, abalone, and pteropods than would be seen from natural conditions alone. It also means that this water will become increasingly corrosive in coming decades as water with more recent (and higher) human-­‐generated carbon dioxide content upwells.218 More locally, nutrient water pollution from land-­‐based sources and organic carbon pollution flowing down rivers and streams can exacerbate ocean acidification.219 Nutrient pollution can spur algal blooms (one form of which is a “red tide”). 220 When the algae then dies and decomposes, the decomposition processes uses most of the oxygen in the water, creating an hypoxic area (more colloquially, a “dead zone,” like in the Gulf of Mexico). 221 At the same time, however, the decomposing algae release carbon dioxide to the water column, exacerbating ocean acidification.222 Freshwater inputs carrying organic carbon pollution, in turn, combine the generally lower pH of freshwater with the pH-­‐
reducing properties of sewage effluent, municipal wasterwater discharges, and industrial discharges to exacerbate the pH effects of ocean acidification. As a result, “When fresh water and seawater mix at river mouths or in estuaries, the water can sometimes be corrosive to calcifying organisms. This is the case for the Columbia River in summer and in Puget Sound in winter.”223 Finally, the ocean’s absorption of other gases besides carbon dioxide can exacerbate ocean acidification.224 In particular, nitrogen oxides and sulfur dioxide have long been regulated under the Clean Air Act because they cause acid rain, and 218 Id. at 10. 219 Id. at 10-­‐12. 220 Id. at 11. 221 Id. 222 Id. 223 Id. at 12. 224 Id. at 13. 2015] Dealing with Ocean Acidification 43 those same acidifying properties can locally exacerbate ocean acidification issues.225 These multiple causes of ocean acidification in Washington mean that different areas of Washington’s coastal waters are vulnerable to different combinations of causes. In Washington’s outer coast, the primary drivers of ocean acidification are absorption of carbon dioxide, coastal upwelling (especially in summer), and freshwater inputs from the Columbia River.226 In contrast, “[t]he primary influence on ocean acidification conditions in the Columbia River estuary is the naturally low pH of the Columbia River and its tributaries. Decomposition of organic carbon can drive the pH even lower.”227 In the Puget Sound and the Strait of Juan de Fuca, corrosive upwelling water from the ocean is a strong influence, but the more inward estuaries in Puget Sound also suffer from nutrient and organic carbon pollution flowing into the Sound from rivers and streams; these areas may also suffer from atmospheric deposition of nitrogen oxides and sulfur dioxide.228 Puget Sound also exhibits much pH variability, and “[s]ome of the lowest pH levels and aragonite saturation states observed in Washington marine waters have been measured in the southern part of the Hood Canal basin.”229 Reflecting back on Part III momentarily, Washington’s studies of its coastal acidification underscores the potential limitations of the Clean Water Act in addressing the problem: There is little the Clean Water Act can do to address global carbon dioxide emissions or offshore upwelling currents. Similarly, increased local controls on emissions nitrogen oxides and sulfur dioxide would have to come through the Clean Air Act. Conversely, as Washington has recognized, more stringent controls on land-­‐based nutrient water pollution and organics pollution—clearly within the province of the Clean Water Act—could bring some relief. 2. Washington State Blue Ribbon Panel on Ocean Acidification In 2011, Washington Governor Christine Gregoire convened the Washington State Blue Ribbon Panel on Ocean Acidification. Within a year, the Panel issued its report, Ocean Acidification: From Knowledge to Action,230 outlining a strategic state response to the impacts of ocean acidification. 225 Id. 226 Id. at 14. 227 Id. at 15. 228 Id. 229 Id. 230 2012 WASHINGTON PANEL REPORT, supra note 214. 44 WASHINGTON LAW REVIEW [DRAFT The Panel concluded that Washington coastal waters are particularly vulnerable to ocean acidification because of upwelling. 231 It also emphasized, however, that upwelling is not the only local factor contributing to ocean acidification in Washington and that the relative importance of local factors varies by location.232 As is true with ocean acidification more generally, shell-­‐forming organisms in Washington’s coastal waters are the most vulnerable to ocean acidification. However, these creatures constitute a large proportion of Washington’s marine life: More than 30 percent of Puget Sound’s marine species are vulnerable to ocean acidification by virtue of their dependency on the mineral calcium carbonate to make shells, skeletons, and other hard body parts. Puget Sound calcifiers include oysters, clams, scallops, mussels, abalone, crabs, geoducks . . ., barnacles, sea urchins . . ., sand dollars, sea stars, and sea cucumbers. Even some seaweeds produce calcium carbonate structures.233 Moreover, the economic impacts to Washington from ocean acidification’s effects on these species are fairly direct: Washington is the country’s top provider of farmed oysters, clams, and mussels. Annual sales of farmed shellfish from Washington account for almost 85 percent of U.S. West Coast sales (including Alaska).2 The estimated total annual economic impact of shellfish aquaculture is $270 million, with shellfish growers directly and indirectly employing more than 3,200 people.3 Shellfish are also an integral part of Washington’s commercial wild fisheries, generating over two-­‐thirds of the harvest value of these fisheries.4 Shellfish of ecological and economic importance include oysters, mussels (native and Mediterranean), clams (e.g., geoduck, razor, littleneck, Manila), scallops, Dungeness crab, shrimp (e.g., spot prawns, pink shrimp), pinto abalone, and urchins.234 231 Id. at xii. 232 Id. 233 Id. at xiii, Box S-­‐1. 234 Id. at xv. 2015] Dealing with Ocean Acidification 45 In addition, “licensing for recreational shellfish harvesting generates $3 million annually in state revenue and recreational oyster and clam harvesters contribute more than $27 million annually to coastal economies. Overall, Washington’s seafood industry generates over 42,000 jobs in Washington and contributes at least $1.7 billion to gross state product through profits and employment at neighborhood seafood restaurants, distributors, and retailers.”235 The panel recognized that global carbon dioxide emissions are the main cause of ocean acidification,236 but it also stressed the need for local adaptation: Washington’s shellfish industry and native ecosystems cannot rely on emissions reductions alone, however. Our marine waters are continuing to acidify and reducing carbon dioxide emissions takes time. To rely solely on those reductions would result in significant—
and in some cases irreversible—economic, cultural, and environmental impacts. Additional local actions, including local source reduction and adaptation and remediation, are necessary to “buy time” while society collectively works to reduce global carbon dioxide emissions.237 For example, the panel recommended local reductions in nitrogen and organic carbon inputs into coastal waters from point, nonpoint, and natural sources,238 a recommendation that could have direct implications for Washington’s implementation of its Clean Water Act program. The panel also stressed the need for increased research, monitoring, and public outreach. “Investing in research and monitoring will help fill those gaps and ensure that our efforts to reduce the risks of ocean acidification are appropriately focused and effective.”239 In turn, “[o]utreach and public engagement connects Washingtonians to the problem of ocean acidification by informing them about the science and the significance of changing ocean chemistry for Washington’s economy, environment, and tribes. This can empower citizens and businesses to help develop and implement solutions.”240 235 Id. 236 Id. at xvii. 237 Id. 238 Id. at xviii. 239 Id. 240 Id. 46 WASHINGTON LAW REVIEW [DRAFT Finally, recognizing that ocean acidification is a long-­‐term problem, the panel recommended both “Key Early Actions (KEAs) and longer-­‐term strategies and actions. The 18 KEAs included both scientific and governance suggestions and ranged from “[w]ork[ing] with international, national, and regional partners to advocate for a comprehensive strategy to reduce carbon dioxide emissions”241 to “[i]mplement[ing] effective nutrient and organic carbon reduction programs in locations where these pollutants are causing or contributing to multiple water quality problems”242 to “[e]nsur[ing] continued water quality monitoring at the six existing shellfish hatcheries and rearing areas to enable real-­‐time management of hatcheries under changing pH conditions”243 to setting up “refuges for organisms vulnerable to ocean acidification and other stressors”244 to “[e]stablishing the ability to make short-­‐term forecasts of corrosive conditions for application to shellfish hatcheries, growing areas, and other areas of concern”245 to establishing a person or entity in the Governor’s Office to coordinate all ocean acidification research and activity.246 The KEAs represent what the panel considered to be “essential” first steps to implementing its six overall strategies for dealing with ocean acidification. These six recommendation strategies are: (1) reducing emissions of carbon dioxide; (2) reducing local land-­‐based contributions to ocean acidification; (3) increasing Washington’s ability to adapt to and remediate the impacts of ocean acidification; (4) investing in the state’s ability to monitor and investigate the effects of ocean acidification; (5) informing, educating, and engaging stakeholders, the public, and decision makers in ocean acidification issues; and (6) maintaining a continued and coordinated focus on ocean acidification. 247 Longer-­‐term recommendations to pursue these six strategies ranged from using shells in specific marine areas to reduce the impacts of ocean acidification on shellfish’s abilities to form shells by increasing concentrations of calcium carbonate (calcite and aragonite) in the immediately surrounding waters 248 to enhancing ocean acidification modeling and long-­‐term predictive capabilities249 to creating ocean acidification school curricula for K-­‐12 and higher education.250 241 Id. at xx, tbl. S-­‐1. 242 Id. 243 Id. 244 Id. 245 Id. at xxi, tbl. S-­‐1. 246 Id. 247 Id. at 28-­‐32, tbl. 1. 248 Id. at 30, tbl. 1 (Strategy 6.1, Action 6.1.3.). 249 Id. at 31, tbl. 1 (Strategy 7.4). 250 Id. at 32, tbl. 1 (Strategy 8.2, Action 8.2.1). 2015] Dealing with Ocean Acidification 47 3. Washington’s Marine Advisory Councils In response to the Blue Ribbon Panel’s 2012 report, in 2013 the Washington Legislature enacted Senate Bill 5603 to create the Washington Coastal Marine Advisory Council and the Washington Marine Resources Advisory Council.251 The Washington Coastal Marine Advisory Council operates out of the Office of the Governor, 252 although the Washington Department of Ecology provides the administrative and staff support for the Council.253 The Council’s broad membership reflects the broad state, private, and tribal interests in Washington’s marine waters,254 and it has several duties, including serving as a forum to discuss coastal issues, including coastal waters resource policy, planning, and management; serving as a point of contact for collaboration with the federal government, regional entities, and other states; providing a collaborative response to issues facing coastal communities and coastal waters resources; identifying and pursuing funding; and, probably most importantly, providing consensus-­‐based255 “recommendations to the governor, the legislature, and state and local agencies on specific coastal waters resource management issues,” including marine spatial planning, principles and standards for emerging new coastal uses, and scientific research needed for coastal resources management,256 which should include ocean acidification. The Washington Marine Resources Advisory Council (MRAC) also operates out of the Office of the Governor257 and also has a broad and representative membership.258 However, its duties focus more directly on ocean acidification. Specifically, by statute, this Council must: (1) “maintain a sustainable coordinated focus, including the involvement of and the collaboration among all levels of government and nongovernmental entities, the private sector, and citizens by increasing the state's ability to work to address impacts of ocean acidification;” (2) “advise and work with the University of Washington and others to conduct ongoing technical analysis on the effects and sources of ocean acidification. The 251 63rd Wash. Leg., S.B. 5603, as engrossed (April 2013), available at http://lawfilesext.leg.wa.gov/biennium/2013-­‐
14/Pdf/Bills/Senate%20Passed%20Legislature/5603.PL.pdf. 252 Id. § 1(1). 253 Id. § 1(8). 254 See id. § 1(2) (listing all the members). 255 Id. § 1(6). 256 Id. § 2(1). 257 Id. § 4(1). 258 Id. § 4(2). 48 WASHINGTON LAW REVIEW [DRAFT recommendations must identify a range of actions necessary to implement the recommendations and take into consideration the differences between instate impacts and sources and out-­‐of-­‐state impacts and sources;” (3) “deliver recommendations to the governor and appropriate committees in the Washington state senate and house of representatives”; (4) “seek public and private funding resources necessary, and the commitment of other resources, for ongoing technical analysis to support the council's recommendations;” and (5) “assist in conducting public education activities regarding the impacts of and contributions to ocean acidification and regarding implementation strategies to support the actions adopted by the legislature.”259 The Council sunsets on June 30, 2017.260 MRAC has been meeting since November 2013. 261 At its March 2014 meeting, it announced its strategic plan, which focuses on four goals: (1) Advancing implementation of the Blue Ribbon Panel’s recommendations; (2) collaborating with and advocating for the Washington Ocean Acidification Center; (3) ensuring effective multi-­‐agency collaboration and coordination; and (4) engaging in broad public education about ocean acidification.262 The main goal of the strategic plan was to come up with an implementation plan.263 In addition, MRAC began to focus on local contributions to ocean acidification, building off the Blue Ribbon Panel’s recommendations. Noting that “[r]educing inputs of nutrients and organic carbon from local sources will decrease acidity in Washington’s marine waters that are impacted by these local sources,”264 it began to map local watershed contributions of these pollutants (natural, onsite sewage facilities, upstream wastewater treatment plants, and agricultural runoff) and municipal and industrial marine point source contributors along the Washington coast.265 It also 259 Id. § 4(8). 260 Id. § 4(9). 261 Washington Department of Ecology, Ocean Acidification and Washington State: Washington Marine Resources Advisory Council (MRAC), http://www.ecy.wa.gov/water/marine/oceanacidification.html (as viewed July 17, 2015). 262 Washington Marine Resources Advisory Council, Strategic Plan 4 (Mar. 7, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20140307MRACstrategicplan.pdf. 263 Id. at 6, 8. 264 Washington Marine Resources Advisory Council, What Can We Do Locally?, at 2 (Mar. 7, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20140307MRACroberts.pdf. 265 Id. at 3. 2015] Dealing with Ocean Acidification 49 noted that increased efforts were already underway in monitoring, modeling, and adaptation efforts, but that more would be needed.266 By November 2014, as part of the Puget Sound Action Agenda, MRAC identified seven priority ocean acidification actions and submitted them for funding, which became part of the 2014-­‐2015 Puget Sound action plan as Near-­‐
Term Actions (NTAs). 267 These NTAs were to: (1) support MRAC and the Washington Ocean Acidification Center in research regarding the biological response to ocean acidification; (2) support MRAC and the Washington Ocean Acidification Center in coordinating research with federal and state agencies; (3) expand the ocean acidification monitoring network; (4) develop a forecast modeling system; (5) identify local source impacts and develop modeling for them; (6) develop mitigation strategies to improve native oyster resilience; and (7) develop the cultivation and harvest of seaweed as a mitigation strategy.268 In addition, MRAC further refined its own longer-­‐term role in addressing ocean acidification, concluding that it would annual ocean acidification status reports to the Governor and Washington Legislature; submit annual budget requests related to ocean acidification; engage in ongoing legislative, funding, and communication strategies; and facilitate public understanding of ocean acidification.269 MRAC produced its first Ocean Acidification Status Report in February 2015,270 which had several positive conclusions. First, with respect to necessary funding, “[i]n the 2013-­‐2015 biennium, Washington State invested $1.85 million towards ocean acidification research and coordination, and this investment has been used to leverage up to $1.93 million in additional public and private funding.” 271 Second, Washington is improving scientific understanding of how ocean acidification affects marine shellfish industries. Specifically, the Washington Ocean Acidification Center (WOAC) has been “[w]orking closely with the shellfish 266 Id. at 4. 267 Washington Marine Resources Advisory Council, Ocean Acidification NTAs 2 (Nov. 18, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20141118MRACpresentationPSP.pdf. 268 Id. at 3. 269 Washington Marine Resources Advisory Council, Marine Resources Advisory Council Long-­‐Range Vision 1 (Nov. 18, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20141118MRAChandoutLongRangeVi
sion.pdf. 270 WASHINGTON MARINE RESOURCES ADVISORY COUNCIL, STATE OF OCEAN ACIDIFICATION IN WASHINGTON (Feb. 2015), available at http://www.ecy.wa.gov/water/marine/oa/20150331MRACstatusOA.pdf. 271 Id. at 5. 50 WASHINGTON LAW REVIEW [DRAFT industry . . . to assist the industry in gathering vital information on local ocean acidification conditions so hatchery operators can react in real-­‐time to minimize the loss of oyster larvae.”272 Third, relatedly, shellfish growers in Washington are developing a suite of adaptation strategies.273 Fourth, the Washington Department of Ecology “is working to fully understand the impact of local nutrient contributions on acidification. The results of their work will inform whether more focused actions are needed to minimize impacts of local contributions to ocean acidification.”274 Finally, ocean acidification efforts are increasing both locally and nationally; for example, “[t]he Suquamish Tribe has worked to develop an Ocean Acidification Curriculum Collection for K-­‐12 educators to use in the classroom that includes curricula developed at the University of Washington.”275 However, as MRAC also noted, much remains to be done. It offered a long list of recommended actions to be undertaken between 2015 and 2017: • Continue and expand monitoring efforts that directly contribute to marine industries taking action against ocean acidification conditions • Provide ocean acidification forecasts to inform shellfish growers and resource manager actions • Study how ocean acidification affects vital commercial and managed species such as salmon, rockfish, razor clams, geoduck, and fish • Investigate the capacity of species to genetically adapt to ocean acidification • Complete research on how local sources of nutrients exacerbate acidic conditions • Investigate various strategies to adapt to and alleviate the impacts of ocean acidification, including: o Developing a seaweed cultivation program o Restoring native oyster populations o Supporting the creation of a shell recycling program o Establishing and managing refuges for species vulnerable to ocean acidification 272 Id. 273 Id. at 6. 274 Id. 275 Id. 2015] Dealing with Ocean Acidification •
•
•
51 Continue to educate and raise awareness of ocean acidification to potentially impacted industries, stakeholders, and the general public Seek public and private funding to support these efforts including: o A 2015-­‐17 biennium state funding request in the Governor’s budget of $1.7 million for continued ocean acidification research and coordination o Working to identify federal funding opportunities that can be used in conjunction with state funding to improve monitoring and adaptation efforts. Track the results of this work through the Puget Sound Partnership276 It of course remains to be seen whether Washington can fulfill MRAC’s ambitious goals to address ocean acidification. 4. Washington Ocean Acidification Center Also in response to the Blue Ribbon Commission’s 2012 report, in 2013 the Washington Legislature created the Washington Ocean Acidification Center, housed in the University of Washington College of the Environment.277 It acts as Washington’s ocean acidification science clearinghouse, pursuing five missions that the legislature articulated: (1) “Establish an expanded and sustained ocean acidification monitoring network to measure trends in local acidification conditions and related biological responses”; (2) “[a]s part of the monitoring network, ensure continued water quality monitoring at the six existing shellfish hatcheries and rearing areas to enable real-­‐time management of hatcheries under changing pH conditions”; (3) “[e]stablish the ability to make short-­‐term forecasts of corrosive conditions for application to shellfish hatcheries, growing areas, and other areas of concern”; (4) “[c]onduct laboratory studies to assess the direct causes and effects of ocean acidification, alone and in combination with other stressors, on Washington’s species and ecosystems’; and (5) “[i]nvestigate and develop commercial-­‐scale water treatment methods or hatchery designs to protect larvae from corrosive seawater.”278 The Center also partners with a variety of institutions besides the University of Washington, including the Washington State 276 Id. at 6-­‐7. 277 College of the Environment, University of Washington, Washington Ocean Acidification Center, http://environment.uw.edu/research/major-­‐
initiatives/ocean-­‐acidification/washington-­‐ocean-­‐acidification-­‐center/ (as viewed July 17, 2015). 278 Id. 52 WASHINGTON LAW REVIEW [DRAFT Department of Natural Resources, the Washington Department of Ecology, Western Washington University, NOAA, EPA, and Taylor Shellfish Farms.279 With regard to monitoring, the Center has both leveraged existing coastal monitoring networks and deployed new sensors into Washington’s coastal waters, creating a fairly geographically comprehensive monitoring system for Washington’s coast.280 In addition, it has integrated water quality and biological monitoring,281 allowing it to measure carbon variables, standard water quality parameters, and plankton concentrations simultaneously at the same locations.282 This integrated monitoring reveals that pteropod shells in Puget Sound show signs of dissolution.283 In addition, based on 2008 data, the Center has been able to produce a map of aragonite saturation variation throughout Puget Sound, 284 and it has also mapped dissolved oxygen patterns there in 2014.285 By tying these and other parameters, to pteropod conditions, the Center hopes to be able to use pteropods as a bio-­‐indicator for assessing changing ocean conditions and species’ responses to those changing conditions, generating results that are comparable across different regions of the ocean and across time.286 With regarding to shellfish hatcheries, “Evidence shows that water chemistry in bays and estuaries each summer already falls well below the optimal growing conditions of sensitive marine species. Data collection at hatchery sites also reveals that there is a great deal of local variability in water chemistry.”287 The Center provides real-­‐time monitoring data to hatcheries and is working with shellfish facilities to install water treatment systems to improve shellfish growing 279 Terrie Klinger & Jan Newton, Co-­‐Directors, Washington Ocean Acidification Center, Science Update for the Washington Marine Resources Advisory Council 3 (March 31, 2015), available at http://www.ecy.wa.gov/water/marine/oa/20150331MRACnewton.pdf.. 280 Id. at 4. 281 Id. at 4, 6. 282 Id. at 6. 283 Id. at 7. 284 Id. at 5. 285 Id. at 8. 286 Id. at 9. 287 Washington Ocean Acidification Center & Washington Marine Resources Advisory Council, Monitoring and Adaptation to Ocean Acidification in the Shellfish Industry Science Information Sheet 1 2015] Dealing with Ocean Acidification 53 conditions.288 “Small-­‐scale systems in place at the Whiskey Creek hatchery have proven effective at maintaining healthy conditions in growing tanks and have improved survival and growth among growing shellfish. Another pilot system being tested by Taylor Shellfish has shown increased shellfish survival and growth. Challenges remain in scaling up these systems to operate at commercial scales, however.”289 5. Conclusion Washington has invested considerable time—in terms both of scientific research and of policy development—and money into learning to monitor and cope with ocean acidification, and those efforts are beginning to bear fruit—a fairly comprehensive monitoring system (especially in Puget Sound), a greater understanding of how ocean acidification works in state coastal waters, the beginnings of bio-­‐indicators and predictive models, and some increasingly effective adaptation measures for shellfish farms. Water quality regulatory improvements for nutrient and organic carbon pollution and adaptation measures for natural stocks of marine species, in contrast, seem to be lagging behind. While these are, to be sure, more scientifically challenging, there are also multiple reasons beyond ocean acidification for Washington to pursue these measures, including the reduction of algal blooms and hypoxic zones and the improvement of coastal ecosystems’ general resilience to climate change as well as ocean acidification impacts. Nevertheless, even with respect to water quality, Washington appears to have improved its scientific understanding of ocean acidification sufficient to be coming very close to triggering the Section 303(d) impaired water process, especially in coastal waters where pteropod shell dissolution has already been documented. B. Maine’s Efforts to Address Ocean Acidification 1. Ocean Acidification Issues in Maine to Date Ocean acidification problems in Maine most visibly manifested first as acidic muds. For example, in the clam-­‐bearing mud flats of Casco Bay, clams began to disappear.290 Research by the Friends of Casco Bay revealed that the clams “that do grow may be stunted and pitted; others simply dissolve. After sampling at 30 288 Id. at 1-­‐2. 289 Id. at 2. 290 Friends of Casco Bay, “The Mystery of the Disappearing Clams,” http://www.cascobay.org/the-­‐mystery-­‐of-­‐the-­‐disappearing-­‐clams/ (April 2, 2013). 54 WASHINGTON LAW REVIEW [DRAFT clam flats around the Bay over the past two summers, researchers at Friends of Casco Bay suspect an insidious connection between nitrogen pollution and acidic mud, leading to clam flats that no longer grow clams.”291 The Bangor Daily News reported in January 2014 that “[t]he spread of ‘dead mud’ among Maine’s shellfish flats could have disastrous implications for clammers, lobstermen, oyster farmers and others whose livelihoods depend on healthy coastal ecosystems.” 292 The growing problem was causing increasing concern among wild clam harvesters, oyster aquaculturists, and lobster fishermen.293 As in Washington, ocean acidification in Maine is caused primarily by increasing anthropogenic emissions of carbon dioxide294 but is exacerbated by local factors. Specifically, “[i]n addition to atmospheric CO2, there are two other drivers of inshore acidification potentially very important to Maine’s marine resources: freshwater runoff and nutrient loading from onshore sources.” 295 “Freshwater runoff is typically more acidic than seawater,” and climate change models predict increasingly frequent and increasingly severe storms in Maine, leading to more such runoff. 296 In addition, “[a]dding to the difficult task of understanding how Maine’s marine environment is acidifying, the dominant source of freshwater to the larger Gulf of Maine comes from watersheds and melting ice to the north entering from the Scotian Shelf.”297 The effects of nutrient pollution in Maine are much the same as in other places, like the Chesapeake Bay and Puget Sound in Washington: “large phytoplankton blooms resulting from the addition of excess nutrients eventually decompose and release CO2,” exacerbating ocean acidification.298 291 Id. 292 Christopher Cousins, “As ocean becomes more acidic, will ‘dead mud’ consume Maine’s bountiful shellfish flats?”, Bangor Daily News, http://bangordailynews.com/2014/01/13/news/state/as-­‐ocean-­‐becomes-­‐more-­‐
acidic-­‐will-­‐dead-­‐mud-­‐consume-­‐maines-­‐bountiful-­‐shellfish-­‐flats/ (Jan. 13, 2014). 293 Id. 294 COMMISSION TO STUDY THE EFFECTS OF COASTAL AND OCEAN ACIDIFICATION AND ITS EXISTING AND POTENTIAL EFFECTS ON SPECIES THAT ARE COMMERCIALLY HARVESTED AND GROWN ALONG THE MAINE COAST, FINAL REPORT TO THE STATE OF MAINE 126TH LEGISLATURE SECOND REGULAR SESSION ii (Jan. 2015), available at http://www.maine.gov/legis/opla/Oceanacidificationreport.pdf [hereinafter 2015 MAINE OCEAN ACIDIFICATION REPORT]. 295 Id. 296 Id. 297 Id. 298 Id. 2015] Dealing with Ocean Acidification 2. 55 The Maine Ocean Acidification Commission On April 30, 2014, the Maine Legislature used its emergency authority to establish the Commission To Study the Effects of Coastal and Ocean Acidification and Its Existing and Potential Effects on Species That Are Commercially Harvested and Grown along the Maine Coast.299 The Commission’s purpose was to identify the actual and potential effects of coastal and ocean acidification on commercially valuable marine species, to identify the scientific data and knowledge gaps that hinder Maine's ability to craft policy and other responses to coastal and ocean acidification and prioritize the strategies for filling those gaps and to provide policies and tools to respond to the adverse effects of coastal and ocean acidification on commercially important fisheries and Maine's shellfish aquaculture industry . . . .300 In addition, the Commission was to rather quickly produce a report on these subjects.301 The Commission released its report on February 5, 2015. 302 It first acknowledged that both global and local factors influenced ocean acidification in Maine waters. 303 Despite the complexities and knowledge gaps surrounding these interactions, moreover, the Commission was convinced that “[a]pplicable scientific research suggests that in the Gulf of Maine, such changes are likely having an impact on commercially important species.”304 Because of the basic chemistry of ocean acidification, “[t]he waters of the Gulf of Maine are more susceptible to ocean acidification than other regional waters surrounding the United States for two main reasons. First, because of the relative freshness of waters entering the Gulf of Maine, its waters tend to be less chemically buffered against increasing 299 State of Maine, 126th Maine Legislature, Resolve 2013, Chapter 110 (H.P. 1174 -­‐ L.D. 1602), § 1 (April 30, 2014), available at http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=HP1174&item=6
&snum=126. 300 Id., Preamble. 301 Id. § 8. 302 Katie Valentine, “Maine Report Warns of ‘Urgent’ Need to Address Ocean Acidification,” ClimateProgress, http://thinkprogress.org/climate/2015/02/06/3619987/maine-­‐ocean-­‐
acidification-­‐report/ (Feb. 6, 2015). 303 2015 MAINE OCEAN ACIDIFICATION REPORT, supra note 294, at ii. 304 Id. at 3. 56 WASHINGTON LAW REVIEW [DRAFT acidity. Secondly, because CO2 is more soluble in colder water, our region tends to absorb more atmospheric CO2.” 305 As in Washington, the impact of ocean acidification on shell-­‐forming organisms was particularly troubling, because “[i]n Maine, 87% of the landings value of harvested or grown species comes from organisms that make calcium carbonate shells.”306 The Maine Commission concluded that ocean acidification in Maine is an urgent political and economic problem, requiring considerable public education and difficult state-­‐wide decisions.307 It unanimously adopted six goals and 25 recommendations to achieve those goals.308 The six goals are to: 1. Invest in Maine’s capacity to monitor and investigate the effects of ocean acidification and determine impacts of ocean acidification on commercially important species and the mechanisms behind the impacts; 2. Reduce emissions of carbon dioxide; 3. Identify and reduce local land-­‐based nutrients and organic carbon that contribute to ocean acidification by strengthening and augmenting existing pollution reduction efforts; 4. Increase Maine’s capacity to mitigate, remediate and adapt to the impacts of ocean acidification; 5. Inform stakeholders, the public and decision-­‐makers about ocean acidification in Maine and empower them to take action; and 6. Maintain a sustained and coordinated focus on ocean acidification.309 In terms of water quality, the Commission further recommended extensive water quality and marine life monitoring,310 improved water assessment tools to identify ocean acidification, 311 specific identification of the causes of ocean 305 Id. at 4. 306 Id. 307 Id. at 6. 308 Id. at iii. 309 Id. 310 Id. at 7-­‐9. 311 Id. at 9. 2015] Dealing with Ocean Acidification 57 acidification in different Maine coastal waters,312 and identification of the effects on marine organisms. 313 The Commission also recommended that Maine pay considerably more attention to nutrient loading in coastal waters, including identifying the relevant point and nonpoint sources and considering the need for amended or new water quality criteria.314 In terms of adaptation measures, the Commission’s recommendations ranged from the fairly specific—“Spread shells or other forms of calcium carbonate (CaCO3) in bivalve areas to remediate impacts of local acidification;”315 “[i]dentify refuges and acidification hotspots to prioritize protection and remediation efforts”316—to the more general and aspirational, such as increasing the adaptive capacity of the fishing and aquaculture industries317 and encouraging the creation of new research hatcheries.318 The Commission also proposed legislation to create a permanent Ocean Acidification Council.319 The Council would both facilitate implementation of the Commission’s recommendations and pursue seven goals: 1. Establish partnerships with state agencies involved with ocean acidification matters; 2. Coordinate the implementation of the commission’s recommendations with other ocean and coastal actions; 3. Incorporate refinements and updates to the recommendations according to the latest science on ocean acidification; 4. Bridge ocean acidification related science and policy needs by supporting continued productive interaction between scientists and policymakers; 5. Coordinate with other states and key federal agencies, including the National Oceanographic and Atmospheric Administration, the Environmental Protection Agency and the Department of the Interior and work within the framework of the National Ocean Policy and with the National Ocean Council, the Northeast Regional 312 Id. at 10. 313 Id. at 10-­‐11. 314 Id. at 14-­‐18. 315 Id. at 19. 316 Id. at 20. 317 Id. at 19. 318 Id. at 20. 319 Id. at iii, Appendix D. 58 WASHINGTON LAW REVIEW [DRAFT Planning Body, the Northeast Regional Ocean Council and the Northeast Coastal Acidification Network, while sharing data with the Northeast Ocean Data Portal.14 This can be done by developing memoranda of understanding or other mechanisms among partners to support data sharing, collaboration and leveraging and prioritizing of funding; 6. Identify and promote economic development opportunities afforded by ocean acidification through development and commercialization of new technologies and businesses; and 7. Build public awareness, support and engagement to advance public understanding of the importance of a healthy ocean and of the most pressing challenges facing the ocean and to engage citizens and various stakeholders in the development of and support for actions and solutions needed to address those challenges.320 3. The Aftermath of the Report and Regional Prospects for the Future A bill was introduced into the Maine Legislature in 2015 to implement the Commission’s recommendations.321 However, in June 2015, this legislation was held over until the next legislative session. Nevertheless, efforts to address ocean acidification appear to be spreading in throughout the Northeast states. In particular, Massachusetts, Rhode Island, and New Hampshire have, to varying extents, begun to follow Maine’s lead, potentially spurring a regional effort to address ocean acidification in Northeast coastal waters in the future.322 3. Conclusion 320 Id. at 22-­‐23. 321 An Act to Create the Ocean Acidification Council, LD 493, 127th Maine Legislature (2015), available at http://www.mainelegislature.org/legis/bills/bills_127th/billtexts/HP033201.asp. 322 Patrick Whittle, “New England states following a model set by Maine to reduce ocean acidity,” The Portland Press Herald, http://www.pressherald.com/2015/03/29/new-­‐england-­‐states-­‐following-­‐a-­‐
model-­‐set-­‐by-­‐maine-­‐to-­‐reduce-­‐ocean-­‐acidity/ (March 29, 2015). 2015] Dealing with Ocean Acidification 59 According to the U.S. Global Research Program in 2014, the Northeast Region is expected to experience increased winter and spring precipitation and increasing numbers of heavy rainfall events.323 Similarly, nutrient pollution is a recognized water quality program throughout the Northeast. 324 As the Maine Commission’s report suggested, therefore, New England coastal states’ efforts to address ocean acidification should consider strengthening controls on stormwater runoff and nutrient pollution. However, as the Maine Commission also acknowledged, these water quality controls are not enough, and these states must also pursue other efforts to adapt to ocean acidification. C. West Coast Collaboration on Ocean Acidification 1. Ocean Acidification and the West Coast While the State of Washington took the lead on ocean acidification responses, ocean acidification problems are common to the entire West Coast of the United States and Canada, 325 particularly in the Pacific Northwest region extending from Alaska and British Columbia to northern California. For example, shellfish hatcheries in Oregon began experiencing die-­‐offs at the same time that Washington hatcheries did, from 2005 to 2009,326 and, as already noted, ocean acidification is already affecting multiple fisheries in Alaska.327 Moreover, the entire Pacific coast suffers from the same upwelling that exacerbates ocean acidification in Washington. This coast is dominated by the California Current and its associated ecosystem, which “covers approximately 32,000 km2 of ocean habitat from British Columbia, Canada to Baja California, Mexico.”328 Upwelling of nutrients along this coast is a well-­‐known and normal 323 U.S. GLOBAL CHANGE RESEARCH PROGRAM, CLIMATE CHANGE IMPACTS IN THE UNITED STATES: THE THIRD NATIONAL CLIMATE ASSESSMENT 374 (2014). 324 E.g., New England Interstate Water Pollution Control Commission, letter to EPA Administrator Lisa Jackson, dated January 3, 2011, at 1-­‐2, available at https://www.neiwpcc.org/neiwpcc_docs/NEIWPCCCommentLetteronNutrientCrit
eria1-­‐3-­‐11.pdf. 325 2012 WASHINGTON PANEL REPORT, supra note 214, at 3. 326 Id. 327 Rojas-­‐Rochas, supra note 77. 328 LINDSAY YOUNG, ET AL., CLIMATE CHANGE AND SEABIRDS OF THE CALIFORNIA CURRENT AND PACIFIC ISLAND ECOSYSTEMS: OBSERVED AND POTENTIAL IMPACTS AND MANAGEMENT IMPLICATIONS: FINAL REPORT TO THE U.S. FISH & WILDLIFE SERVICE REGION 1, at 3 (2 May 2012), available at http://www.faralloninstitute.org/Publications/YoungEtal2012USFWSRep.pdf. 60 WASHINGTON LAW REVIEW [DRAFT phenomenon. 329 For example, the Partnership for Interdisciplinary Studies of Coastal Oceans (PISCO) notes that: Every summer off Oregon and Washington, northerly winds and the earth’s rotation combine to drive surface waters offshore and bring naturally nutrient-­‐rich but oxygen-­‐poor waters to the coast . . . . When this water wells up to the ocean surface, microscopic plants called ‘phytoplankton’ bloom in the sunlight creating a rich broth that feeds a variety of fish and marine invertebrates. It is this upwelling of nutrient-­‐rich waters that makes the west coast of North America one of the most productive marine ecosystems on earth.330 At the beginning of the 21st century, however, these currents began to change. As PISCO reports, “the occurrence of low-­‐oxygen water close to shore (the inner shelf, less than 50 m (165’) of water) is highly unusual and had not been reported prior to 2002 despite over 50 years of scientific observations along the Oregon coast.”331 In 2006, these changing ocean currents created an unprecendented anoxic (oxygen-­‐lacking) “dead zone” off the coast of Oregon, “result[ing] in mass die-­‐offs of long-­‐lived marine animals such as seastars and sea cucumbers.”332 Hypoxia is thus a climate-­‐change-­‐related concern for the Pacific Coast states and British Columbia. However, as noted for Washington, changing patterns of upwelling bring low-­‐pH waters to the surface, while the plankton and algal blooms resulting from the increased nutrients lead to increased carbon dioxide in the water; both effects exacerbate ocean acidification. Despite the fact that the California Current is in general very well studied because of its importance to fisheries,333 “long-­‐term records of pH in the [California Current] are very rare.”334 Thus, as with most places in the United States, basic scientific data regarding ocean acidification along the Pacific Coast were just missing. To deal with this region-­‐wide problem, the states of California, Oregon, Washington, and 329 Id. (noting that “the California Current is a highly productive system where upwelling and advection transport nutrients and drive primary productivity in the system.”). 330 Partnership for Interdisciplinary Studies of Coastal Oceans, Hypoxia in the Pacific Northwest, http://www.piscoweb.org/research/science-­‐by-­‐
discipline/coastal-­‐oceanography/hypoxia-­‐new/hypoxia-­‐in-­‐pacific-­‐northwest (Feb. 11, 2011). 331 Id. 332 Id. 333 YOUNG, supra note 328, at 10. 334 Id. at 11. 2015] Dealing with Ocean Acidification 61 (increasingly) Alaska and the Canadian province of British Columbia have increasingly pooled their efforts to develop the necessary scientific information, ocean acidification adaptation tools and strategies, and policy recommendations. 2. West Coast Governors Alliance on Ocean Health In 2006, the states of Washington, Oregon, and California formed a partnership—the West Coast Governors Alliance on Ocean Health—“to protect and manage ocean and coastal resources along the West Coast.” 335 The Alliance reformulated its goals in 2012 to include ocean acidification,336 and the Alliance includes tribal governments, as well. In general, the Alliance develops “shared priorities and action plans across the region for marine debris, climate change, and ocean acidification.”337 Building on the 2012 Washington Blue Ribbon Panel on Ocean Acidification, supports and works with the West Coast Ocean Acidification and Hypoxia Science Panel (see below), which formed in November 2013. 338 The Alliance is also “working with shellfish farmers and hatcheries to connect them to the real-­‐time monitoring data that they need,” and it “partners with the California Current Acidification Network (C-­‐CAN), a West Coast-­‐wide collaborative network that aims to increase understanding of ocean acidification along the California Current System” (see below).339 Finally, the Alliance is helping to create data products specific to West Coast ocean acidification: “The West Coast Governors Alliance has partnered with the Integrated Ocean Observing Systems (IOOS) West Coast regions (SCCOOS, CeNCOOS and NANOOS) to connect oceanographic data collected by IOOS to a broader West Coast audience through a California Sea Grant fellowship. The fellow is helping to tie OOS real-­‐time oceanographic data and time-­‐
averaged data products into the WCGA.”340 335 WEST COAST OCEAN SUMMIT, FINAL REPORT 5 (Jan. 2015), available at http://www.westcoastoceansummit.org/media/wcos-­‐final-­‐report-­‐-­‐-­‐january-­‐
2015-­‐-­‐-­‐final.pdf. 336 Id. 337 Washington Marine Resources Advisory Council, Ocean Acidification Science and Policy Landscape 1 (Nov. 18, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20141118MRAChandoutLandscape.pd
f. 338 West Coast Governors Alliance on Ocean Health, Ocean Acidification, http://www.westcoastoceans.org/index.cfm?content.display&pageID=182 (as viewed July 5, 2015). 339 Id. 340 Id. 62 WASHINGTON LAW REVIEW [DRAFT 3. Pacific Coast Collaborative and Its Action Plan on Climate and Energy On June 30, 2008, the leaders of Alaska, British Columbia, California, Oregon, and Washington “signed the Pacific Coast Collaborative Agreement, the first agreement that brings together the Pacific leaders as a common front to set a cooperative direction into the Pacific Century. Out of this agreement was born the Pacific Coast Collaborative—a formal basis for cooperative action, a forum for leadership and information sharing, and a common voice on issues facing Pacific North America.”341 Through this umbrella forum, the governors of the four West Coast states and the premier of British Columbia have collaborated to “[p]roved[e] high level coordination and consistency of regional policy priorities including climate change, clean energy, and ocean conservation.”342 As part of these collaborative efforts, in October 2013, the leaders of British Columbia, Washington, Oregon, and California signed the Pacific Coast Action Plan on Climate and Energy.343 That plan covered 14 action items, one of which was to “[e]nlist support for research on ocean acidification and take action to combat it.344 Specifically, this action item noted that “[o]cean health underpins our coastal shellfish and fisheries economies” and promised that “[t]he governments of California, British Columbia, Oregon and Washington will urge the American and Canadian federal governments to take action on ocean acidification, including crucial research, modeling and monitoring to understand its causes and impacts.”345 As part of this Action Plan, in December 2013 the governors of California, Oregon, and Washington and premier of British Columbia wrote to U.S. President Barack Obama and Canadian Prime Minister Stephen Harper, urging increased 341 Pacific Coast Collaborative, Leadership now for a sustainable tomorrow, http://www.pacificcoastcollaborative.org/Pages/Welcome.aspx (as viewed July 18, 2015). 342 Washington Marine Resources Advisory Council, Ocean Acidification Science and Policy Landscape 1 (Nov. 18, 2014), available at http://www.ecy.wa.gov/water/marine/oa/20141118MRAChandoutLandscape.pd
f. 343 Pacific Coast Collaborative, Pacific Coast Action Plan on Climate and Energy (Oct. 28, 2013), available at http://www.pacificcoastcollaborative.org/Documents/Pacific%20Coast%20Clima
te%20Action%20Plan.pdf. 344 Id. at 1. 345 Id. 2015] Dealing with Ocean Acidification 63 national attention in both countries to ocean acidification.346 Specifically, they declared that “[t]here is an urgent need for the U.S. and Canadian federal governments to bolster our ongoing regional and cross-­‐border efforts to address this critical issue with enhanced federal coordination, monitoring, and research support.”347 The governors and premier also emphasized that “[g]lobal and local processes converge in areas along the West Coast, and these ‘hot spots’ of corrosive water are becoming more frequent. As a result, the West Coast is being impacted earlier and harder than other regions of North America, and indeed the planet.”348 The letter underscored that “State governments and regional efforts have catalyzed action and raised awareness of the potential impacts of ocean acidification, providing for unprecedented collaboration,” including the West Coastal Ocean Acidification and Hypoxia Panel, the West Coast Governors Alliance on Ocean Health, the State of Washington’s Blue Ribbon Panel on Ocean Acidification, and the California Current Acidification Network.349 However, the gist of the letter was that the ocean acidification problem was too big even for these regional efforts: “While the West Coast jurisdictions are taking vigorous actions to understand and address acidification, the scope of the challenge merits increasing Canadian and U.S. federal investment in monitoring, research and coordination. The health of our oceans is vital to our economies; this threat to ocean health will require state, regional, federal and international cooperation on an unprecedented scale.”350 They requested continued funding for the federal Integrated Coastal and Ocean Observation System Act and the FOARAM Act, both of which had been funded only through September 2013; continued Canadian and U.S. federal funding of physical and biological co-­‐located monitoring of the oceans; funding to develop biogeochemical models of ocean acidification; assistance in developing resource management tools and strategies; and the convening of a meeting to further discuss strategies.351 346 Letter to U.S. President Barack Obama and Canadian Prime Minister Stephen Harper, from Governor Edmund G. Brown of California, Premier Christy Clark of British Columbia, Governor John Kitzhaber of Oregon, & Governor Jay Inslee of Washington, at 1 (Dec. 12, 2013), available at http://www.ecy.wa.gov/water/marine/oa/20131212_PacificCoastCollaborative_l
etter.pdf. 347 Id. 348 Id. 349 Id. at 2. 350 Id. 351 Id. at 2-­‐3. 64 WASHINGTON LAW REVIEW 4. [DRAFT California Current Acidification Network The California Current Acidification Network emerged in 2010 as a result of a scientific workshop.352 Its mission is to: 1. Coordinate and encourage development of an ocean acidification monitoring network for the west coast that serves publicly available data; 2. Improve understanding of linkages between oceanographic conditions and biological responses; 3. Facilitate and encourage the development of causal, predictive and economic models that characterize these linkages and forecast effects; and 4. Facilitate communication and resource / data sharing among the many groups, organizations and entities that participate in C-­‐CAN or utilize C-­‐CAN as an informational resource.353 Thus, the California Current Acidification Network serves primarily to fill gaps in scientific knowledge about ocean acidification. However, it has also developed guidelines/best practices for monitoring ocean acidification—including monitoring relevant parameters (e.g., nutrients) in land-­‐based pollution354—and provides a clearinghouse of national and international publications related to ocean acidification, including the 2010 National Academy of Sciences study and the 2011 report from the IPCC on ocean acidification.355 5. The West Coast Ocean Acidification and Hypoxia Science Panel California and Oregon initially teamed up to create the West Coast Ocean Acidification and Hypoxia Science Panel (WCOAHSP), but the collaboration now also includes scientists from Washington and the Canadian province of British 352 California Current Acidification Network, C-­‐CAN, http://c-­‐can.msi.ucsb.edu (as modified March 28, 2015, and viewed July 5, 2015). 353 Id. 354 California Current Acidification Network, C-­‐CAN Documents, http://c-­‐
can.msi.ucsb.edu/c-­‐can-­‐documents (as last modified Dec. 3, 2014, and visited July 18, 2015). 355 California Current Acidification Network, National/International OA reference materials, http://c-­‐can.msi.ucsb.edu/materials/oa-­‐reference-­‐materials (as last modified Jan. 18, 2013, and visited July 18, 2015). 2015] Dealing with Ocean Acidification 65 Columbia.356 “The Panel’s core goal is to collaborate with decision makers across the state, regional and federal levels on these complex issues.”357 Specifically, WCOAHSP pursues a four-­‐step iterative process to help policymakers effectively integrate ocean acidification science: develop a scientific research foundation based on decisionmakers’ needs; tailor that information to specific agency needs; put together the scientific building blocks to consider effects on entire ocean ecosystems; and inform policy and management at multiple levels of government.358 The Panel established a series of working groups to summarize knowledge for action on key themes identified by decision makers.”359 More specifically: [T]he Panel has recognized that ocean acidification is not an isolated threat to our oceans, but a part of a shifting environment in which carbonate chemistry and dissolved oxygen are changing alongside nutrients and temperature. These multiple stressors along the West Coast require new information, new directions, and new approaches for future work. To address the information needs of decision-­‐makers, Panelists are contributing to the scientific literature with high-­‐level scientific perspectives that distill the current understanding of oceanographic drivers, and physiological and ecological impacts of ocean acidification and hypoxia.360 In May 2014, the WCOAHSP, in collaboration with a host of other science bodies, including the University of Washington’s Ocean Acidification Center and NOAA’s Ocean Acidification Program, published a two-­‐page fact sheet on Pacific 356 West Coast Ocean Acidification & Hypoxia Panel, Overview, http://westcoastoah.org/overview/ (as viewed July 5, 2015). 357 Id. 358 Skyli McAfee, Executive Director, California Ocean Science Trust, Ocean Protection Council Science Advisor, and West Coast Ocean Acidification and Hypoxia Science Panel Convener, The West Coast Ocean Acidification and Hypoxia Panel: Presentation to the Washington Marine Resources Advisory Council 4 (Mar. 31, 2015), available at http://www.ecy.wa.gov/water/marine/oa/20150331MRACmcafee.pdf. 359 Id. 360 California Ocean Science Trust, West Coast Ocean Acidification and Hypoxia Panel, http://www.oceansciencetrust.org/project/west-­‐coast-­‐ocean-­‐acidification-­‐
and-­‐hypoxia-­‐science-­‐panel/ (as viewed July 5, 2015). 66 WASHINGTON LAW REVIEW [DRAFT Coast ocean acidification.361 This public education brochure announces that “[t]he evidence for ocean acidification in the Pacific Northwest is compelling.” 362 Emphasizing the role of carbon dioxide emissions, the fact sheet also notes, however, that “[a]cidification can be more severe in areas where human activities further increase acidity, such as through nutrient inputs that fuel biological production and respiration processes.” 363 Indeed, “Natural and anthropogenic factors combine to intensify ocean acidification in Pacific Northwest waters.”364 Perhaps most importantly, the fact sheet concludes that: The human contribution to acidification in the Pacific Northwest is quantifiable and has increased the frequency, intensity, and duration of harmful conditions. In Hood Canal, 24-­‐49% of the total increase in CO2 in subsurface waters since the industrial revolution is linked to human activity. Off the Oregon coast, undersaturated conditions [of aragonite], once rare, now occur 30% of the time during the summer upwelling season. Anthropogenic CO2 is the largest human-­‐derived source of acidifying pollution in Pacific Northwest waters, adding an amount of CO2 that can significantly worsen naturally-­‐low [aragonite saturation] conditions for shelled organisms. The human contribution essentially ‘makes a bad day worse’ for shellfish and other organisms, and it causes those bad days to become more frequent.365 In the Pacific Northwest, average “[v]alues of pH 7.8–7.9 are expected by 2100, representing a doubling of acidity,” and “[a]reas that could be particularly vulnerable to ocean acidification include 1) coastal regions that receive large volumes of freshwater, especially when the freshwater contains high levels of dissolved nutrients or organic material; and 2) regions where upwelling brings colder CO2-­‐rich deep water onto the continental shelves, such as along the west coast of North America.” 366 In addition, “The juvenile stages of many Pacific Northwest shellfish species (e.g. oysters, clams, and mussels) are particularly vulnerable to acidification because the biomineral they use to build their shells—
aragonite—has the greatest tendency to dissolve at CO2 levels currently being observed in Pacific Northwest marine waters.” 367 Native as well as hatchery 361 NANOOS, et al., Ocean Acidification in the Pacific Northwest (May 2014), available at http://www.ecy.wa.gov/water/marine/oa/201405-­‐OAfactsheet.pdf. 362 Id. at 1. 363 Id. 364 Id. at 2. 365 Id. 366 Id. at 1. 367 Id. 2015] Dealing with Ocean Acidification 67 species are already being affected, and “[s]mall changes in the environment can cause large responses among living organisms. While most marine organisms can tolerate a range of environmental conditions, at some point their tolerance fails; even small changes in the environment can cause an abrupt biological response when the limits of tolerance are passed.”368 “Long-­‐term decline in pH could exceed the tolerance limits of some marine species that live in coastal waters,” and “[t]he current rate of acidification may be unprecedented in Earth’s history.”369 As the fact sheet ominously concludes: Contemporary ocean acidification could threaten the flow of goods and services to marine-­‐dependent communities. A new study has shown that the fishing industry in Southeast and Southwest Alaska will be vulnerable to declines in both commercial and subsistence harvests due to ocean acidification in coming decades. Disruptions in Alaska fisheries could have significant economic impacts throughout the Pacific Northwest due to the economic linkages between the two regions.370 On the policy side, the WCOAHSP has advocated a broad range of legal approaches to ocean acidification, emphasizing that “[t]here is a cost to inaction.” 371 It advocates a coast-­‐wide approach 372 that incorporates emission control goals and cap-­‐and-­‐trade programs for carbon dioxide emissions; incorporation of “ocean health” as a priority mission across regulatory agencies; refinement of the Clean Water Act’s role, focusing on a permit program for nonpoint source pollution as well as greater ocean-­‐related attention to NPDES permits; increased use of marine protected areas and ecosystem-­‐based fisheries management; and increased use of “smart monitoring” for adaptive learning.373 In addition, the WCOAHSP has produced or is producing a wide range of publications for both scientists and policymakers.374 On the policy side, a recent report explains Ocean Acidification and Hypoxia: Today’s Need for a Coast-­‐Wide Approach, while forthcoming reports will discuss Scientific Approaches to Making a 303(d) Assessment for Near Coastal Acidification and Rethinking the Federal Clean 368 Id. at 2. 369 Id. 370 Id. 371 McAfee, supra note 358, at 8. 372 Id. at 9. 373 Id. at 11. 374 West Coast Ocean Acidification and Hypoxia Science Panel, Products, http://westcoastoah.org/panelproducts/ (as visited July 18, 2015). 68 WASHINGTON LAW REVIEW [DRAFT Water Act.375 Thus, the WCOAHSP may provide states with practical instructions for applying the Clean Water Act and state water quality standards to ocean acidification. 6. West Coast State Laws on Ocean Acidification Despite all of these regional efforts to analyze, understand, and respond to ocean acidification, legal responses to ocean acidification remain minimal. Neither Alaska’s statutes nor its administrative code mention “ocean acidification.” The complex California Code contains a single mention of ocean acidification, authorizing ocean acidification research to be funded by the California Ocean Protection Trust Fund;376 California has no ocean acidification regulations. Oregon also has one statute that mentions ocean acidification, authorizing ocean acidification research as part of Oregon State University’s Oceangoing Research Vessel Program. 377 The Washington statutes have three mentions of ocean acidification—one in connection with the duties of the Washington Marine Resources Advisory Council 378 and two related to funding ocean acidification research.379 Moreover, cycling back to the Clean Water Act, none of the Pacific Coast states have tailored their marine water quality standards to acknowledge ocean acidification. Alaska, for example, classifies its marine waters according to four designated uses: (A) water supply (for aquaculture, seafood processing, or industrial uses); (B) water recreation, either contact recreation or secondary recreation; (C) growth and propagation of fish, shellfish, other aquatic life, and wildlife; and (D) harvesting for consumption of raw mollusks or other raw aquatic life.380 For aquaculture water supply and growth and propagation of fish, shellfish, and other aquatic life and wildlife, marine pH “[m]ay not be less than 6.5 or greater than 8.5, and may not vary more than 0.2 pH unit outside of the naturally occurring range”381—the EPA’s 1976 reference criterion. California’s water quality standards for ocean waters specify that “[t]he pH shall not be changed at any time more than 0.2 units from that which occurs naturally” and that “[m]arine communities, including vertebrate, invertebrate, and plant species, shall not be 375 Id. 376 CAL. PUB. RESOURCES CODE § 35650 (2014). 377 OR. REV. STAT. § 352.252 (2014). 378 WASH. STAT. § 43.06.338 (2014). 379 Id. §§ 70.105D.070(3)(v); 75.109.150(1), 380 18 ALAS. ADMIN. CODE § 70.020(a)(2) (2015). 381 ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WATER QUALITY STANDARDS 19 (April 8, 2012). 2015] Dealing with Ocean Acidification 69 degraded.”382 Oregon’s water quality standards state that, in general, the pH for marine waters may not fall outside the range of 7.0 to 8.5.383 While Oregon does set basin-­‐specific water quality standards,384 none of the marine pH standards in these basins varies from Oregon’s general marine pH requirement.385 Washington establishes four categories of marine waters for aquatic life uses—extraordinary, excellent, good, and fair quality386—and establishes pH water quality criteria for each. In extraordinary marine waters, “pH must be within the range of 7.0 to 8.5 with a human-­‐caused variation within the above range of less than 0.2 units”; in excellent and good marine waters, “pH must be within the range of 7.0 to 8.5 with a human-­‐caused variation within the above range of less than 0.5 units”; and in fair quality marine waters, “pH must be within the range of 6.5 to 9.0 with a human-­‐caused variation within the above range of less than 0.5 units.”387 Thus, while the Pacific Coast states and British Columbia have pursued several regional partnerships, these partnerships have so far been much more effective in generating the science needed to address ocean acidification than in changing ocean or water quality law and policy. Of course, efforts to address ocean acidification at all are still fairly new: We are only three years out from the Washington Blue Ribbon Panel’s report, after all. The next five to ten years will likely be critical in determining whether state and regional efforts will mature into actual legal programs to address ocean acidification—or whether, instead, the dance of litigation using old tools like the Clean Water Act will continue. V. CONCLUSION
The ocean acidification science that has emerged suggests that changing pH along the United States’ coasts is already affecting marine species, marine ecology, and marine industries like shellfish aquaculture. Eventually (and maybe sooner 382 STATE WATER RESOURCES CONTROL BOARD & CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY, WATER QUALITY CONTROL PLAN: OCEAN WATERS OF CALIFORNIA 6, 11 (Oct. 16, 2012, effective Aug. 19, 2013), available at http://www.waterboards.ca.gov/water_issues/programs/ocean/docs/cop2012.p
df. 383 OR. ADMIN. RULES § 340-­‐041-­‐0021(1)(a) (2014). 384 See OR. ADMIN. RULES §§ 340-­‐041-­‐0101 to 340-­‐041-­‐0350 (2014). 385 OR. ADMIN. RULES §§ 340-­‐041-­‐0225 (Mid-­‐Coast Basin); 340-­‐041-­‐0235 (North Coast Basin); 340-­‐041-­‐0275 (Rogue River Basin); 340-­‐041-­‐0305 (South Coast Basin); 340-­‐041-­‐0326 (Umqua River Basin). 386 WASH. ADMIN. CODE § 173-­‐201A-­‐210(1)(a) (2014). 387 Id. § 173-­‐201A-­‐210(1)(f). 70 WASHINGTON LAW REVIEW [DRAFT rather than later for Oregon and Washington), states will compile enough scientific data and ocean pH will change enough to establish violations of marine pH water quality standards, setting the Clean Water Act’s Section 303(d) processes in motion. When that event occurs, however, a significant question remains regarding what exactly the Clean Water Act can do. A carbon-­‐based TMDL for the oceans would do little, legally, to reach the primary cause of ocean acidification—
emissions of carbon dioxide—nor could any Clean Water Act legal requirement do much to reach the major ocean acidification exacerbating factor along the West Coast—more destructive upwelling currents. These problems can ultimately be resolved, if at all, only by fixing the underlying problem of climate change and greenhouse gas emissions more generally. In the meantime, coastal states must begin to pursue ocean acidification adaptation strategies with the same urgency that they should be pursuing climate change adaptation strategies. In this sense, Washington’s and Maine’s nascent efforts to buffer their wild shellfish populations with additional calcium carbonate by spreading shells, and Washington’s efforts to help its shellfish aquaculture industry to cope with low-­‐pH seawater are steps in the right (and necessary) direction. Nevertheless, the emerging ocean acidification science also suggests that the CBD, the states, and the EPA should be thinking a bit more creatively about the role of the Clean Water Act in addressing ocean acidification. Specifically, ocean acidification exacerbating factors that clearly fall within the scope of the Act are nutrient pollution and stormwater runoff. With respect to nutrient pollution in particular, ocean acidification presents yet another reason—beyond harmful algal blooms, beyond dead zones, beyond damaged ecosystems like the Gulf of Mexico, Florida Everglades, and Florida Keys—to finally get serious about bringing agricultural pollution under the Act’s direct federal purview. Somewhat ironically, the much-­‐beleaguered multi-­‐state Chesapeake Bay nutrient TMDL388 may someday prove to be the first, best thing that the Clean Water Act ever did to address regional ocean acidification—and that TMDL may also become the most pragmatic model for making the Clean Water Act an effective instrument within a growing ocean acidification toolbox. 388 The EPA established this multi-­‐state TMDL—the first of its kind—in December 2010, and it covers nitrogen and phosphorus, both of which are nutrients, as well as sediment. U.S. Environmental Protection Agency, Chesapeake Bay TMDL, http://www.epa.gov/chesapeakebaytmdl/ (as viewed July 18, 2015). The TMDL has been subject to numerous challenges, but on July 6, 2015, the U.S. Court of Appeals for the Third Circuit unanimously upheld it. American Farm Bureau Federation v. U.S. EPA, -­‐-­‐-­‐ F.3d -­‐-­‐-­‐, 2015 WL4069224, at *1 (3rd Cir. July 6, 2015).