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Home    |   Currents   |   Harnessing the Potential of the Clean Water Act to Address Ocean Acidification

Harnessing the Potential of the Clean Water Act to Address Ocean Acidification

Dec 05, 2009



In the halls of Congress and at the climate conference in Copenhagen, the question of how we can agree to reduce greenhouse gas pollution looms
large. Under the sea’s surface, the question is whether the carbon dioxide (CO2)
reductions will come soon enough. Each day the oceans absorb another 22
million tons of CO2 from the atmosphere, altering seawater chemistry
and making it more acidic. Ocean acidification is rapidly advancing, with
harmful consequences for marine life and ocean ecosystems on the horizon. Yet,
ocean acidification has received far too little attention in the public and
policy debate around climate change. We need a fresh approach to the problem of
ocean acidification, and there is no need to wait for a new climate law or
treaty. Instead, the Clean Water Act offers a framework with the potential to
begin to address this dire problem.

Impacts of High CO2 Oceans

As a result of CO2 pollution, primarily from
burning fossil fuels, the oceans have already become about 30 percent more
acidic on average since preindustrial values.[1]
Ocean acidification impairs the ability of marine animals to build the
protective shells they need to survive. This phenomenon affects marine life
from plankton to corals with perilous biological consequences.

While the worst consequences are predicted for the future,
the impacts of ocean acidification are already underway in some regions. Coral
growth rates have declined in the Great Barrier Reef,[2]
and scientists predict that the world’s coral reefs will be destroyed by
mid-century.[3] A
survey of the California coast, with its unique currents, has shown that waters
affected by acidification are upwelling onto the continental shelf, exposing
marine life along the entire coast to corrosive waters during certain seasons.[4]
Along the Oregon and Washington coasts, oyster farm production has collapsed in
recent years with reproductive failures up to 80 percent, which are likely due
to impacts from ocean acidification.[5] One new
report forecasts that by 2016, parts of the Arctic Ocean will become corrosive,
which means that mussels and other calcifying animals may begin to dissolve
more quickly than they can grow.[6] Tiny
plankton, which form the basis of the marine food web, are growing thinner and
weaker shells in some areas of the ocean,[7] which
is particularly troubling given the potential effects of decreased plankton
populations on entire ecosystems. Ocean acidification also stresses fish, shellfish,
and other marine animals, leaving them more susceptible to other threats such
as ocean warming, disease, and pollution.

These effects warn of more troubling impacts to come if we
fail to reduce CO2 pollution. According to preeminent coral biologist
Charlie Veron, most of the world’s coral reefs are committed to an irreversible
decline at the current levels of 387 parts per million (ppm) of CO2
in the atmosphere.[8]
Scientists now tell us that to avoid mass extinctions on land and sea, atmospheric
CO2 will need to be stabilized below 350 ppm.[9]
However, society is on the opposite trajectory. By the end of this century, CO2
levels are predicted to reach 788 ppm, which could amount to a 100–150 percent
change in ocean acidity.[10] A pH
change of this magnitude has not occurred for more than 20 million years.[11]
Unfortunately, the CO2 reductions proposed in the climate bill now
making its way through Congress are unlikely to result in an atmospheric
concentration below 450 ppm, much less 350 ppm.

only does ocean acidification threaten severe problems for marine biodiversity
and the healthy functioning of ocean ecosystems, it also comes at a cost to
society and our economy
. Assuming business as usual projections
for carbon emissions and a corresponding decline in ocean pH and mollusk
harvests, ocean acidification’s broader economic losses for the United States would range from $1.5–6.4 billion through 2060.[12]
Coral reefs are estimated to be worth $172 billion a year worldwide for the
variety of food, tourism, and other services they provide.[13]
Additionally, many other industries and communities rely on ocean and coastal
resources, which are increasingly threatened by acidification.

Only in recent years has it become widely accepted that we
need to take action on climate change, but it is this lesser known but dire
acidification problem that also needs our urgent attention.

Water Quality Problem? Clean Water Act Solution

While it may not be obvious to use the Clean Water Act to
address carbon dioxide pollution, the law has sufficient breadth to address
ocean acidification. Congress enacted the Clean Water Act to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s
waters.”[14] This
makes the Clean Water Act the nation’s strongest law protecting water quality
and a good match for addressing ocean acidification, because it is poised to
become the foremost threat to seawater quality. Increasingly, environmental law
is shifting towards an understanding that ecosystem-based management is
necessary, and treating air pollution as if it has no effect on the water is a
fallacy for which the day is past. Using the Clean Water Act to address carbon
effects in our oceans advances us towards President Obama’s call for
ecosystem-based management of our oceans.[15]

The Clean Water Act broadly regulates all sorts of water
pollution. Among its various provisions, section 303 provides a framework with
the potential for tackling ocean acidification. First, the law establishes
standards against which to measure water quality, including a standard for
seawater acidity. Next, an unacceptable change in ocean acidity can trigger
regulatory provisions aimed at reducing pollution causing the water quality
problem. A discussion of how each of these steps applies to ocean acidification

Water Quality Standards for Ocean Acidification

Toward the Clean Water Act’s goals of eliminating water
pollution and protecting water quality for marine life and recreation, the
Clean Water Act requires states to establish water quality standards.[16]
These standards must “provide water quality for the protection and propagation
of fish, shellfish and wildlife and for recreation.”[17]

Standards for ocean water acidity are already in
place. While precise standards vary from state to state, the Environmental
Protection Agency (EPA) criteria establish that seawater acidity shall not
deviate more than 0.2 pH units from natural variation.[18]
This translates to about a 60 percent change in acidity because a decrease of 1
unit on the pH scale marks a tenfold increase in acidity. States must adopt
EPA’s criterion or provide a science-based alternative for implementing their
water quality standards.

Recent EPA actions underscore the ability to address ocean
acidification through the Clean Water Act’s water quality standards. Right now,
EPA is reviewing its recommended seawater pH criteria to determine if revisions
are needed to better protect marine life from the threat of ocean
acidification. On April 15, 2009, EPA issued a notice in the Federal Register
soliciting information and data on how to account for ocean acidification in
its seawater pH water quality criterion.[19] In the
notice, EPA acknowledged the threat that ocean acidification poses to marine

Preliminary projections indicate
that oceans will become more acidic over time and overall, the net effect is
likely to disrupt the normal functioning of many marine and coastal ecosystems.[20]

In the coming year, EPA will make a determination about how
to address ocean acidification through the Clean Water Act water quality
criteria. This EPA undertaking responded to a citizen-petition that sought to
strengthen seawater pH criteria to help protect American waters from ocean
According to the petition, one impediment to coastal states properly reviewing
whether their ocean waters are impaired by acidification is that EPA’s
governing pH criterion, adopted in 1976, is outdated because little was known
about acidification when this standard was created.

EPA’s water quality criteria are vital to preventing ocean
acidification because they are the measure against which states gauge the need
to regulate pollution. States must update their own water quality standards to
conform to the EPA’s criteria or provide a scientifically defensible
alternative.[22] It is
against these standards that all pollution controls under the Clean Water Act
are based, including impaired waters listings and total maximum daily loads,
which brings us to step two.

Impaired Waters Trigger Regulation

Under the Clean Water Act, each state must identify waters
within its boundaries that violate any water quality standard.[23]
Specifically, every two years states must establish a list of impaired water
bodies for which existing pollution controls “are not stringent enough to
implement any water quality standard applicable to such waters.”[24]
EPA reviews and approves each state’s list of impaired waters, and must assist
states in remedying inadequate lists.[25]

With respect to ocean acidification, the Clean Water Act requires
a state to deem as impaired any coastal waters affected by acidification in
excess of the seawater pH standard. Even though the EPA’s seawater pH criterion
is likely underprotective, ocean acidification is occurring so rapidly that
acidification levels once predicted for century’s end are already being
measured and the criterion is being exceeded in certain regions. According to
one scientific study, seawater pH off the coast of the State of Washington has declined by more than 0.2 pH units over the past decade.[26]
A lawsuit is currently pending in U.S. District Court that seeks to compel EPA
to designate these Washington waters as impaired.[27]
Additionally, ocean acidification may also warrant listing of waters as
impaired for violating other water quality standards, which include all numeric
criteria, narrative criteria, water body uses, and antidegradation
requirements.[28] For
example, most coastal waters are designated for the protection and propagation
of fish, shellfish, and wildlife.[29] Since
ocean acidification may threaten these water body uses, this requirement can
serve as another basis for impaired waters listing.

There are a variety of benefits to listing ocean waters as
impaired due to ocean acidification. First, there is an educational benefit that
local and state governments and the public will recognize the importance of
addressing ocean acidification. Second, it puts ocean acidification as a
priority issue in water quality management. Third, it can help garner funding
and guidance for states to address ocean acidification.

Most importantly, once a water body is listed as impaired
pursuant to Clean Water Act § 303(d), the state has the authority and duty to
control pollutants from all sources that are causing the impairment.
Specifically, the state or EPA must establish total maximum daily loads of
pollutants that a water body can receive and still attain water quality
standards.[30] States
then implement the maximum loads by incorporating them into the state’s water
quality management plan and controlling pollution from point sources and
nonpoint sources.[31] The
goal of section 303(d) is to ensure that our nation’s waters attain water
quality standards regardless of the source of pollution.

The Clean Water Act can provide for concrete pollution reductions
that could be used to address ocean acidification and reduce CO2
emissions. The implementation of total maximum daily loads is flexible and can
take a number of forms. Point sources are required to reduce pollution through
permit requirements, and nonpoint sources can be controlled through a variety
of state, regional, or national programs, which can be regulatory, voluntary,
or incentive based. Moreover, grants and other assistance are available to
reduce pollution contributing to impaired waters. The Clean Water Act has
successfully helped reduce other atmospheric forms of pollution such as
mercury, polychlorinated biphenyls (PCBs), and compounds causing acid rain.

The Clean Water Act tools discussed above are designed to
operate specifically where other pollution controls have proven insufficient to
protect water quality. This characteristic of the Clean Water Act ensures that
it will remain an important supplement to any climate laws or other CO2
regulations that are ultimately implemented. EPA and the states should move
forward quickly with pollution reduction measures under the law. For the West
Coast shellfish farmers whose oyster harvests are collapsing, that time has
clearly come. The Clean Water Act has been successfully applied to traditional
and emerging pollution problems for over three decades. Although we have only
recently come to recognize CO2 as a form of water pollution, the
Clean Water Act, properly applied, is an essential tool in reducing this most
dangerous of pollutants.

* Miyoko Sakashita is Oceans Director at the Center for Biological
. The Center’s oceans program works to secure protections for
imperiled marine life and ecosystems from threats ranging from global warming
and ocean acidification to fisheries and pollution. Miyoko holds a law degree
from the University of California, Berkeley, where she also earned a Bachelor
of Science in conservation and resource studies.

[1] Richard
A. Feely et al., Evidence for Upwelling of Corrosive “Acidified” Water onto
the Continental Shelf
, 320 Science
1490, 1490 (2008); James C. Orr et al., Anthropogenic Ocean Acidification
over the Twenty-first Century and Its Impact on Calcifying Organisms
, 437 Nature 681, 681 (2005).

[2] Glenn
De'ath, Janice M. Lough & Katharina E. Fabricius, Declining Coral
Calcification on the Great Barrier Reef
, 323 Science 116, 116 (2009).

[3] Ove
Hoegh-Guldberg et al., Coral Reefs Under Rapid Climate Change and Ocean
, 318 Science
1737, 1740–41 (2007).

[4] Feely
et al., supra note 1, at 1490, 1492.

[5] A.
Whitman Miller et al., Shellfish Face Uncertain Future in High CO2
World: Influence of Acidification on Oyster Larvae Calcification and Growth in
, 4(5) PLoS ONE
e5661, e5661 (2009)
(last visited Nov. 18, 2009).

[6] Marco
Steinacher et al., Imminent Ocean Acidification in the Arctic Projected with
the NCAR Global Coupled Carbon Cycle-Climate Model
, 6 Biogeosciences 515, 525 (2009).

D. Moy et al., Reduced Calcification in Modern Southern Ocean Planktonic
, 2 Nature Geoscience
276, 276 (2009).

[8] Charlie
Veron et al., The Coral Reef Crisis: The Critical Importance of <350 ppm
, 58 Marine Pollution
. 1428, 1428 (2009).

[9] Id.;
see also James Hansen et al., Target Atmospheric CO2:
Where Should Humanity Aim?,
2 Open
Atmospheric Sci. J. 217, 217
(2008); Long Cao & Ken Caldeira, Atmospheric
CO2 Stabilization and Ocean Acidification
, 35 Geophysical Res. Letters L19609 (2008)
(noting that to prevent harmful consequences of ocean acidification we need
stabilize CO2 below 450 ppm).

[10] Orr et
al., supra note 1, at 681–82 (figures are based on atmospheric CO2
levels reaching 788 ppm by 2100, as predicted by the Intergovernmental Panel on
Climate Change’s IS92a “business-as-usual” scenario).

Richard A. Feely et al., Impact of Anthropogenic CO2 on the CaCO3
System in the Oceans
, 305 Science
362, 362 (2004).

[12] Sarah
R. Cooley & Scott C. Doney, Anticipating Ocean Acidification’s Economic
Consequences For Commercial Fisheries
, 4 Envtl.
Res. Letters
024007 (2009)
(last visited Nov. 18, 2009).

[13] John
Platt, How Much Are Coral Ecosystems Worth? Try $172 Billion—A Year, Scientific American Observations (Oct.
22, 2009).

[14] 33 U.S.C.
§ 1251(a) (2006).

[16] 33
U.S.C. § 1313.

[17] Water Quality
Standards, 40 C.F.R. § 130.3 (2008).

[18] U.S.
Envtl. Prot. Agency, Quality Criteria for Water
342–43 (1976).

[19] Ocean
Acidification and Marine pH Water Quality Criteria, 74 Fed. Reg. 17,484 (Apr.
15, 2009).

[20] Id. at 17,485.

[22] 40
C.F.R. § 131.11(b) (2008).

[23] 33
U.S.C. § 1313(d) (2006).

[24] Id.

[25] 33
U.S.C. § 1313(d)(2).

Timothy J. Wootton, Catherine A. Pfister & James D. Forester, Dynamic Patterns
and Ecological Impacts of Declining Ocean pH in a High-Resolution Multi-Year
, 105 Proceedings of the Nat’l
Acad. of Sci.
18,848, 18,849 (2008) (pH declined in an annual trend of
-0.045 pH on average).

Ctr. for Biological Diversity v. EPA, No. 2:09-cv-670 (W.D. Wash. filed May 15,

Section 303(d) of the Clean Water Act requires states to establish a list of
impaired water bodies within their boundaries for which existing pollution
controls “are not stringent enough to implement any water quality standard
applicable to such waters.” 33 U.S.C. § 1313(d). In turn, water quality
standards include all numeric criteria, narrative criteria, waterbody uses, and
antidegradation requirements. 40 C.F.R. § 130.7(b)(3) (2008).

have to establish water quality standards that take into account the water’s
“use and value for public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other purposes.” 33
U.S.C § 1313(c)(2)(A); accord 40 C.F.R § 131.2. California’s Ocean Plan
defines the designated uses of ocean waters: “The beneficial uses of the ocean
waters of the State that shall be protected include industrial water supply;
water contact and non-contact recreation, including aesthetic enjoyment;
navigation; commercial and sport fishing; mariculture; preservation an
enhancement of designated Areas of Special Biological Significance (ASBS); rare
and endangered species; marine habitat; fish migration; fish spawning and
shellfish harvesting.” State Water Res.
Control Bd., Cal. Envtl. Prot. Agency, State of California, Water Quality
Control Plan: Ocean Waters of California: California Ocean Plan
3 (2005)
(under amendment in 2009).

[30] 33 U.S.C. § 1313(d).

[31] 33 U.S.C. § 1313(e); 40 C.F.R. §§ 130.6, 130.7(d)(2).

Copyright 2009 Miyoko Sakashita. All rights reserved.

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