Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency

Decision Date02 March 2015
Docket NumberCase No. C13–1866JLR.
Citation90 F.Supp.3d 1177
CourtU.S. District Court — Western District of Washington
PartiesCENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Cari Miyoko Sakashita, Emily Jeffers, San Francisco, CA, Sarah Uhlemann, Seattle, WA, for Plaintiff.

Cynthia J. Morris, US Department of Justice, Washington, DC, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, for Defendant.

AMENDED ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court are the parties' cross motions for summary judgment. (See CBD Mot. (Dkt. # 33); EPA Mot. (Dkt. # 34).) This case concerns the water quality problem of ocean acidification and its effects on aquatic life in the coastal and estuarine waters of the states of Washington and Oregon. Plaintiff Center for Biological Diversity (CBD) claims that Defendant United States Environmental Protection Agency (EPA) arbitrarily and capriciously approved Washington's and Oregon's decisions not to identify any waters experiencing ocean acidification as impaired under Section 303(d) of the Clean Water Act, 33 U.S.C. § 1251 et seq. Having considered the submissions of the parties, the submissions of amici curiae, the administrative record, and the relevant law, and having heard oral argument, the court denies CBD's motion for summary judgment and grants EPA's motion for summary judgment.

II. BACKGROUND
A. Ocean Acidification

Ocean acidification is a long-term decrease in pH of the earth's oceans. On a worldwide scale, the primary driver of ocean acidification is carbon uptake: seawater absorbs increased carbon dioxide (CO2

) emissions, which leads to a series of chemical reactions that make the seawater more acidic. WA–00731 (“Pelejero 2010”) at 1.1 The leading cause of increased atmospheric CO2 is combustion of fossil fuels. Id. It is estimated that anthropogenic sources of atmospheric carbon dioxide have increased the acidity of average open-ocean surface waters by about 30%. WA–000731 (“Feely 2010”) at 4. In coastal regions, other local factors can exacerbate the acidification process. WA–000712 (“Blue Ribbon Panel”) at 4. Regional drivers include both natural phenomena, such as upwelling of deep ocean water and freshwater inputs from rivers, and anthropogenic factors such as nutrient deposits from agricultural runoff, carbon deposits from stormwater runoff and industrial pollution, and local emissions of nitrogen and sulfur oxides. Id. at xii; WA–000712 (“Feeley 2012) at xii, 33, 37.

The changing ocean chemistry affects marine organisms and ecosystems in various ways, with some of the clearest impacts being felt by organisms whose shells and skeletons are composed of calcium

carbonate (CaCO32– ). Pelejaro 2010 at 1; Blue Ribbon Panel at 10. Specifically, the same chemical reactions that increase the acidity of the ocean reduce the concentration of carbonate ions (CO32– ) that shellfish rely on to build shells. Pelejaro 2010 at 1; Blue Ribbon Panel at 10. As a result, marine organisms face difficulties forming and maintaining calcium carbonate-based shells and skeletons. Pelejaro 2010 at 1; Blue Ribbon Panel at 10. Additionally, the reduction of precipitated carbonate ions decreases the saturation states of important biominerals such as aragonite and calcite. Blue Ribbon Panel at 10; Feely 2010 at 3. Seawater with such decreased saturation states is chemically corrosive and can dissolve the shells of small crustaceans and immature shellfish. Feeley 2010 at 4; Blue Ribbon Panel at 10. Because many small calcifiers provide habitat, shelter, or food for other marine plants and animals, ocean acidification is also a threat to the broader marine environment. Blue Ribbon Panel at xiv, 16–20; see also Feeley 2012.

B. The Clean Water Act

The Clean Water Act employs two main regulatory approaches to achieve water quality: (1) technological controls on effluents discharged from point sources and (2) water quality standards. This case concerns water quality standards. See Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.2002) ; see generally 33 U.S.C. § 1251 et seq.

Each state is required to set water quality standards for all waters within its boundaries. Pronsolino, 291 F.3d at 1126 ; 33 U.S.C. § 131(a)-(c) ; 40 C.F.R. § 130.3. These standards, which include designated beneficial uses, numeric and narrative criteria, and anti-degradation policies, set goals for improving or maintaining water quality. 40 C.F.R. § 130.3. Wherever attainable, the standards should “provide water quality for the protection and propagation of fish, shellfish, and wildlife and for recreation.” Id.

Pursuant to Section 303(d) of the Clean Water Act, every two years each state must generate a list of impaired water bodies for which existing pollution controls are insufficient to meet the water quality standards applicable to the water body. 33 U.S.C. § 1313(d) ; 40 C.F.R. § 130.7(d)(1). Section 303 requires the states to submit their impaired waters lists to the EPA for approval. 33 U.S.C. § 1313(d) ; 40 C.F.R. § 130.7(d)(1). If EPA disapproves a list, it must identify within 30 days the waters that should have been listed as impaired. 33 U.S.C. § 1313(d) ; 40 C.F.R. § 130.7(d)(1).

After a water body is listed as impaired, the state must establish a total maximum daily load (“TMDL”) of each pollutant that the water body can receive and still meet water quality standards. 33 U.S.C. § 1313(d) ; 40 C.F.R. § 130.7(d)(1) ; see also Pronsolino, 291 F.3d at 1127–28. The state must incorporate TMDLs into the state's statutorily required water quality management plan. 33 U.S.C. § 1313(e) ; Pronsolino, 291 F.3d at 1128. The state, however, retains the responsibility and discretion to implement the TMDLs by controlling pollution from nonpoint and point sources.2 33 U.S.C. § 1313(e) ; Pronsolino, 291 F.3d at 1128. As such, “TMDLs are primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans.” Pronsolino, 291 F.3d at 1128.

In 2010, EPA issued a memorandum recognizing the “seriousness of aquatic life impacts associated with” ocean acidification, and instructing that “States should list waters not meeting water quality standards, including marine pH [water quality criteria], on their 2012 303(d) lists.” WA–01116–31 (“EPA 2010 OA Memo”) at 1, 4.

C. Washington's and Oregon's Section 303(d) Lists

Several of Washington's water quality standards implicate ocean acidification. Most 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 (crabs, shrimp, crayfish, scallops, etc.) rearing and spawning.” WAC 173–201A–612 ; WAC 173–201A–210(1)(a). With respect to numerical criteria, waters of extraordinary or excellent quality must meet a pH range of 7.0–8.5 with a human-caused variation within that range of 0.2 or 0.5 units, respectively.3

WAC 173–201A–612 ; WAC 173–201A–210(1)(f). Additionally, 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.” WAC 173–201A–260(2)(a). Finally, [n]o degradation may be allowed that would interfere with, or become injurious to, existing or designated uses.” WAC 173–201A–310.

Washington's 2010 Section 303(d) list, however, did not identify any coastal or estuarine waters as impaired due to pollutants associated with or conditions attributable to ocean acidification.4 When reviewing Washington's list, EPA independently evaluated numerous relevant ocean acidification references, as well as Washington's analysis of ocean acidification data and information. WA–00011–20 (EPA review of Washington's analysis of ocean acidification data); WA–000021–65 (EPA's review of ocean acidification references). EPA approved Washington's 303(d) list in full in December, 2012. WA–000001–2 (“WA Approval”).

Similarly, several of Oregon's water quality standards implicate ocean acidification. Oregon's coastal waters are designated for the beneficial uses of “fish and aquatic life,” as well as fishing. See OAR 340–041–0220 et seq. Narrative 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,” OAR 340–041–0011, and that the “creation of ... conditions that are deleterious to fish or other aquatic life ... may not be allowed,” OAR 340–041–0007(10). Oregon's anti-degradation policy provides that any existing level of water quality necessary to support propagation of fish and shellfish must be maintained and protected. Id. at –0004(6).

Oregon's 2010 Section 303(d) list, however, did not identify any coastal or estuarine waters as impaired due to pollutants associated with or conditions attributable to ocean acidification. EPA originally partially disapproved Oregon's 303(d) list, finding that Oregon had not reasonably assembled and evaluated all readily available data and water-quality information. OR1–000001 (“OR Disapproval”). Specifically, Oregon had failed to consider data for numerous pollutants available in Oregon's own Laboratory Analytical and Storage Retrieval (“LASAR”) database. OR1–00008. Accordingly, EPA independently reviewed this and other available water quality data and, on December 14, 2012, issued a decision adding 870 additional impaired segments to Oregon's 303(d) list. OR1–00008–9; see also OR2–000001–9 (“OR Approval”). These additions, however, were unrelated to ocean acidification: EPA independently evaluated Oregon's ocean acidification information and approved Oregon's assessment that the information did not...

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