March 02, 2010

By Jennifer Cassel

On March 10, 2010, EPA entered into a legal settlement with the Center for Biological Diversity (“CBD”) in which EPA agreed to sign, by March 15, 2010, a Federal Register notice seeking comments on ocean acidification as it pertains to § 303(d) of the Clean Water Act (“CWA”).  The settlement resolves a suit in which CBD sued EPA for alleged violating its CWA duties to identify Washington’s ocean waters as impaired due to acidification (caused by absorption of CO2).  Under the terms of the settlement, EPA will seek comment on (1) whether EPA should issue guidance concerning the listing of waters as impaired or threatened due to ocean acidification, and if so, what that guidance should state; (2) how states can determine if waters are threatened or impaired by acidification; (3) how states can monitor acidification and its effects; and (4) recommendations for development of Total Maximum Daily Loads (“TMDL”) for waters impaired or threatened by acidification.  By November 15, 2010, EPA will issue a memorandum detailing EPA’s plan for its CWA § 303(d) program in light of the comments it receives in response to the Federal Register notice.  EPA issued the Federal Register notice on March 22, 2010, and the comment period will close on May 21, 2010.   

More information on the settlement agreement is available at

The Federal Register notice is available at