71 K.L. Laidre et al., Quantifying the Sensitivity of Arctic Marine Mammals to Climate-Induced Habitat Change, 18 ECOLOGICAL APPLICATIONS S97, S99 (2008); A.S. Hansen et al., Impact of Changing Ice Cover on Pelagic Productivity and Foodweb Structure in Disko Bay, West Greenland: A Dynamic Model Approach, 50 DEEP SEA RESEARCH I 171, 182 (2003).
72 N.R. Bates & J.T. Mathis, The Arctic Ocean Marine Carbon Cycle: Evaluation of Air-Sea CO2 Exchanges, Ocean Acidification Impacts and Potential Feedbacks, 6 BIOGEOSCIENCES 2433, 2448 (2009).
73 V.J. Fabry et al., Impacts of Ocean Acidification on Marine Fauna and Ecosystem Processes, 65 INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA (ICES) JOURNAL OF MARINE SCIENCES 414, 415 (2008).
74 M. Yamamoto-Kawai et al., Aragonite Undersaturation in the Arctic Ocean: Effects of Ocean Acidification and Sea Ice Melt, 326 SCIENCE 1098, 1099 (2009).
Id.; Bates & Mathis, supra note 72 at 2446. 77 K.F. Drinkwater et al., On the Processes Linking Climate to Ecosystem Changes, 79 JOURNAL OF MARINE SYSTEMS 374, 378 (2010).
delicately balanced to take advantage of the seasonal timing of sea ice melt. When sea ice melts, ocean temperature and light increase, with a consequent increase in photosynthesis by phytoplankton. Phytoplankton are a food source for zooplankton that rise from deeper waters at specific times in the spring to feed. If sea ice melts early, the coupling between photosynthetic production and zooplankton demand becomes uncoupled.71 This trophic mismatch has reverberating consequences throughout the food web. Furthermore, warmer waters that are less saline as a result of melted sea ice become more stratified so that less nutrient cycling occurs between the surface and deep waters, causing further adverse impacts to the Arctic food web.72
The chemical integrity of the oceans is also powerfully influenced by sea ice dynamics. The volume of sea ice melt has direct impacts on ocean acidification. Ocean acidification refers to the decrease in ocean pH that occurs when oceans absorb carbon dioxide from the atmosphere. As pH decreases, carbonate concentrations also decrease. Carbonate and calcium are essential for many organisms, such as plankton and shellfish, to form their shells. One of the common forms of calcium carbonate is aragonite, and the cold waters of the Arctic tend to have lower concentrations of aragonite than mid-latitude oceans.73 Aragonite undersaturation is exacerbated with the loss of sea ice through multiple mechanisms. First, when sea ice melts there is an influx of freshwater that causes a reduction in salinity and total alkalinity, which in turn reduces carbonate concentrations.74 Second, sea ice tends to have a lower concentration of dissolved inorganic carbon, which also intensifies ocean aragonite undersaturation when meltwater enters the oceans.75 Third, sea ice cover reduces the surface of the ocean that is exposed to the air. Because carbon dioxide exchange occurs at the interface of the sea and air, when more surface ocean is exposed with sea ice melt, more carbon dioxide is absorbed by the oceans.76
Besides the extensive biological impacts of the chemical and physical status of the oceans, sea ice itself also confers exceedingly important ecological benefits. Krill, an important food source for many marine organisms including cetaceans, overwinter in sea ice, and krill availability is directly correlated to ice extent.77 For many marine mammals 11
78 See, e.g., Laidre supra
note 71; E. Post et al., Ecological Dynamics Across the Arctic Associated with Recent Climate Change, 325 SCIENCE 1355, 1355 (2009).
supra note 71 at S101.
Id.; Drinkwater, supra note 77.
82 B.A. Bluhm & R. Gradinger,
Regional variability in food availability for Arctic marine mammals, 18 ECOLOGICAL APPLICATIONS S77, S83 (2008).
Id. at S84.
ORLD WILDLIFE FUND INT’L, supra note 61, at 19-20.
Id. at 18.
NITED NATIONS ENVIRONMENTAL PROGRAMME, CLIMATE CHANGE 2009 SCIENCE COMPENDIUM 19 (Catherine McMullen ed., 2009). The disappearance of the Arctic ice cap during the sunlit period of the year would radically reduce the local albedo and cause an annually averaged 19.7 Wm−2 increase in absorbed solar flux at the Arctic Ocean surface, or equivalently an annually averaged 0.55 Wm−2 increase on the planetary scale. C. Matsoukas et al., The Effect of Arctic Sea-Ice Extent of the Absorbed (Net) Solar Flux at the Surface, Based on ISCCP-D2 Cloud Data for 1983-2007, 10 ATMOSPHERIC CHEMISTRY & PHYSICS 777,777 (2010).
NITED NATIONS ENVIRONMENTAL PROGRAMME, supra note 86, at 19.
89 WORLD WILDLIFE FUND INT’L, supra note 61, at 23.
sea ice habitat is as important as aquatic habitat.78 For instance, narwhals depend on winter sea ice for foraging.79 Pinnipeds such as walrus and seals also depend on sea ice for foraging as well as breeding and resting.80 Polar bears depend on sea ice as hunting platforms as well and denning and whelping.81 Finally, sea ice supports an abundant microbial and algal ecosystem within the ice matrix. 82 This intra-ice ecosystem productivity provides food for small amphipods that live under the ice, which in turn are food for diving birds and cod.83
Adverse impacts resulting from the accelerated loss of Arctic sea ice extend well beyond the Arctic Ocean and its coast. By reflecting the sun’s energy back into space, sea ice is an effective insulator, preventing heat in the Arctic Ocean from escaping upward and warming the lower atmosphere.84 The decline of sea ice amplifies warming in the Arctic, which in turn has major implications for temperature patterns over adjacent, permafrost-dominated land areas and for weather patterns across the Northern Hemisphere.85 Rapid retreat of Arctic sea ice is predicted to accelerate warming 1,500 kilometers inland throughout Alaska, Canada and Russia.86 During rapid ice retreat, the rate of inland warming could be more than three times that previously suggested by global climate models.87 Higher temperatures will thaw out extensive expanses of permafrost, resulting in the potential release of methane and carbon dioxide that are currently frozen in Arctic soils thereby further accelerating additional warming.88 Additional warming in the Arctic resulting from the loss of sea ice will also affect weather patterns by altering atmospheric circulation patterns and, through it, weather patterns affecting transportation, agriculture, forestry and water supplies.89 Loss of sea ice in the Arctic Ocean will therefore have serious repercussions as climactic feedbacks resulting from higher temperatures accelerate, the timing of the seasons is altered, and shifting circulation patterns cascade through the Arctic and beyond.
90 World Glacier Monitoring Service, Global Glacier Changes: Facts and Figures at 10 (2009).
91 P. Jansson et al., The Concept of Glacier Storage: a Review. 282 J. HYDROLOGY 116, 117 (2003).
92 Listed in order of glacier extent. R.M. Krimmel, Glaciers of the Western United States, in SATELLITE IMAGE ATLAS OF GLACIERS OF THE WORLD 329, Table 1 (J. Williams & J. Ferrigno, eds., 2002).
93 Id. at 329.
94 R.G. Barry, The Status of Research on Glaciers and Global Glacier Recession: A Review, 30 PROGRESS IN PHYSICAL GEOGRAPHY 285, 286 (2006).
95 Krimmel, supra note 92 at 343, see Table 1 for individual states.
96 Barry, supra note 94 at 286.
97 P. Lemke et al., Chapter 4, Observations: Changes in Snow, Ice and Frozen Ground in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 356 (S. Solomon et al. eds., 2007).
98 GOVERNMENT ACCOUNTABILITY OFFICE, CLIMATE CHANGE: AGENCIES SHOULD DEVELOP GUIDANCE FOR ADDRESSING THE EFFECTS ON FEDERAL LAND AND WATER RESOURCES 18 (Aug. 2007), available at: http://www.gao.gov/news.items/d07863.pdf.
99 Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 534 (9th Cir. 2001) (citation omitted).
100 EPA & Army Corps of Engineers, supra note 68, at 6; see also United States v. TGR Corp., 171 F.3d 762, 764 (2d Cir. 1999) (non-navigable tributaries flowing into navigable streams are "waters of the United States"); Quivira Mining Co v. EPA, 765 F.2d 126, 130 (10th Cir. 1985) (creeks and arroyos connected to streams during intense rainfall are "waters of the United States"); United States v. Texas Pipe Line Co., 611
The World Glacier Monitoring Service defines a glacier as "a mass of surface-ice on land which flows downhill under gravity and is constrained by internal stress and friction at the base and sides."90 Glaciers and ice caps cover 10% of the Earth’s surface and provide about 75% of the world’s fresh water.91 Glaciers in the U.S. are located in Alaska and the continental U.S. from the Rockies westward. Nine western states of the contiguous U.S. have glaciers: Washington, California, Oregon, Montana, Wyoming, Colorado, Idaho, Utah, and Nevada.92 The glaciers of the continental U.S. have a total area of approximately 580 sq. km93 and constitute 7% of world glacier area.94 Washington State accounts for approximately 75% of U.S. glacial extent outside of Alaska.95 Alaska contains approximately 11% of world glacier area.96 Like sea ice, the Earth’s glaciers as a whole are exhibiting rapid recession.97 For example, the number of glaciers at Glacier National Park has dropped from 150 to 26 since 1850, with some projections suggesting that if current trends in the rate of melting continue, the remaining glaciers will disappear within the next 25 to 30 years.98
America’s glaciers are afforded protection under the Clean Water Act because they feed traditional navigable waters and because glaciers meet the "significant nexus" test set forth by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006).
The "Clean Water Act is concerned with the pollution of tributaries as well as with the pollution of navigable streams, and ‘it is incontestable that substantial pollution of one not only may but very probably will affect the other.’"99 Thus, Clean Water Act jurisdiction extends to non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally.100 A non-navigable tributary of a traditional navigable water is a
F.2d 345, 347 (10th Cir. 1979) (oil spill into tributary involved "waters of the United States," even though no evidence tributary was discharging into traditional navigable waters at time of spill). 101 EPA & Army Corps of Engineers, supra note 68, at 6.
102 GOVERNMENT ACCOUNTABILITY OFFICE, supra note 98, at 159.
103 Randy Bowersox, Hydrology of a Glacial Dominated System, Copper River, Alaska, in GLACIAL AND PERIGLACIAL PROCESSES AS HYDROGEOMORPHIC AND ECOLOGICAL DRIVERS IN HIGH-LATITUDE WATERSHEDS 2 (J. Mount et al. eds., 2002).
104 F.R. Hauer et al., Pattern and Process in Northern Rocky Mountain Headwaters: Ecological Linkages in the Headwaters of the Crown of the Continent, 43 J. AM.WATER RESOURCES ASS’N 104, 107 (2007).
105 Alaska Department of Natural Resources, Division of Mining, Land & Water, Alaska Hydrologic Survey, http://dnr.alaska.gov/mlw/water/hydro/index.htm (last visited January 26, 2010).
106 NASA Earth Observatory, Alaska Glaciers and Rivers: Image of the Day, http://earthobservatory.nasa.gov/IOTD/view.php?id=8117 (last visited January 27, 2010).
107 F.R. Hauer et al., supra note 104, at 105.
108 See National Park Service, The Little Tahoma News, http://www.nps.gov/archive/mora/kids/student5.htm (last visited Jan. 28, 2010).
109 EPA & Army Corps of Engineers, supra note 68, at 7.
110 P. Lemke et al., Chapter 4, Observations: Changes in Snow, Ice and Frozen Ground in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 356 (S. Solomon et al. eds., Cambridge Univ. Press 2007).
non-navigable water body whose waters flow into a traditional navigable water either directly or indirectly by means of other tributaries.101 Glaciers meet this definition because their waters flow into traditional navigable waters such as rivers and oceans. Indeed, due to their many important ecological functions, glaciers are considered "part of the fresh waters ecosystem."102
Glacial runoff comes from a variety of sources such as surface melting, melting by geothermal heat, precipitation that falls on glaciers, and pressure melting.103 Kryal streams, which are fed directly by glacial melt, are one of the main types of alpine stream flow contributing to downstream waters.104 Indeed, glaciers significantly influence most of Alaska’s major rivers, even though glaciers cover just 5% of the state.105 Similarly, most of the water flowing into the Gulf of Alaska from the Susitna River comes from mountain glaciers.106 Glaciers in the continental United States are also a water source for downstream rivers. For example, Triple Divide Peak in Glacier National Park contributes to three major river systems: the Columbia, Saskatchewan, and Missouri.107 Similarly, glaciers on Mt. Rainier feed five major rivers: Nisqually, Cowlitz, White, Carbon, and Puyallup.108
Glaciers are also water bodies with continuous seasonal flow. Joint EPA/Army Corps of Engineer guidance provides that a water body is seasonal if it exists "typically three months" of the year.109 Glaciers at all latitudes exhibit annual ablation (melt/loss of snow and ice) during late spring and summer, a span of at least three months.110 At low latitudes, ablation occurs year-round.111
Protection of glaciers under the Clean Water Act is warranted on the alternative grounds that glaciers meet the jurisdictional test articulated by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006) for what constitutes a regulable water
112 Rapanos was decided in a fractured 4-1-4 decision, with Justice Kennedy’s concurrence providing the deciding vote. In interpreting Rapanos, circuit courts have determined that either: (1) Justice Kennedy’s concurrence provides the controlling rule of law; or (2) jurisdictional requirements are met if either the test articulated by Justice Kennedy or the plurality in Rapanos is met. Under either interpretation, regulatory jurisdiction would be established if Justice Kennedy’s test is satisfied. See, e.g., United States. v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (Kennedy concurrence controlling); Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2006) (same); United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006) ("federal government can establish jurisdiction over the target sites if it can meet either the plurality’s or Justice Kennedy’s standard").
113 Rapanos v. United States, 547 U.S. 715, 759 (2006).
114 Id. at 780.
115 R.D. Moore et al., Glacier Change in Western North America: Influences on Hydrology, Geomorphic Hazards and Water Quality. 23 HYDROLOGICAL PROCESSES 42, 53 (2009); F.R. Hauer et al., supra note 104, at 107.
116 R.D. Moore et al., supra note 115, at 53.
117 C. Rosenzweig et al., Chapter 1. Assessment of Observed Changes and Responses in Natural and Managed Systems in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 91 (M.L. Parry et al. eds., Cambridge Univ. Press 2007).
118 R.D. Moore et al., supra note 115, at 53-55.
119 C. Rosenzweig et al., supra note 117, at 91.
120 P. Jansson et al., supra note 91, at 119-22.
121 R.D. Moore et al., supra note 115, at 48.
under the Act.112 In Rapanos, Justice Kennedy held that Clean Water Act jurisdiction extends to waters or wetlands that "possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made."113 A significant nexus exists if "either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’"114
Glaciers meet the significant nexus test because they significantly affect the chemical, physical, and biological integrity of downstream waters. Chemical impacts of glaciers to downstream waters include water dilution and increased pollutant loads. For instance, meltwater contributions from glaciers tend to be relatively dilute with low nutrient content, but with glacier retreat, downstream waters will have greater exposure to soils that could contribute more ions such as phosphorus and nitrogen.115 Because glaciers also concentrate volatile organic compounds transported from agricultural and industrial activity, increased melt rates will result in greater amounts of these compounds being deposited in downstream waters.116 The same has been observed for organochlorides.117 Glacial retreat can result in additional dangers to water quality, including increased suspended sediment load and increased water temperature.118 Changes in water temperature can result in thermal stratification and reduced nutrient cycling.119
The physical integrity of downstream waters in a large number of water basins is dependent on glacial meltwaters. One of the main services provided by glaciers is water storage. Water storage occurs both as frozen water in the form of ice as well as precipitation stored in glacial aquifers.120 In many areas summer melt provides a regulating influence to maintain stream flows during the dry season.121 The importance
122 P. Jansson et al., supra note 91, at 117-19, 123.
123 Id. at 118.
124 M.B. Dyurgerov & M.F. Meier, Glaciers and the Changing Earth System: A 2004 Snapshot at 7, Occasional Paper 58 (2005): Institute of Arctic and Alpine Research, University of Colorado.
125 R.D. Moore et al., Glacier Change in Western North America: Influences on Hydrology, Geomorphic Hazards and Water Quality. 23 HYDROLOGICAL PROCESSES 42 (2009).
126 Z.W. Kundzewicz et al, Chapter 3, Freshwater Resources and their Management in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 188 (M.L. Parry et al. eds., Cambridge Univ. Press 2007).
127 R.D. Moore et al., supra note 115, at 50.
128 Id. at 56.
129 L.E. Brown et al., Vulnerability of Alpine Stream Biodiversity to Shrinking Glaciers and Snowpacks, 13 Global Change Biology 958, 963 (2007).
132 F.R. Hauer et al.,
supra note 104, at 108.
See A. Hodson et al., Glacial Ecosystems, 78 ECOLOGICAL MONOGRAPHS 41 (2008).
of glacial water sources operates at multi-year, seasonal, and daily time scales.122 Non-ice sheet glaciers are also significant because they can change extent much more rapidly than ice sheets, and thus are the current greatest contributor to increases in sea level.123 In fact, it is estimated that the world’s non-ice sheet glaciers would cause a 0.65 ± 0.16 m rise in sea level if they melted completely.124 Glacial water storage and release also has important implications for hydroelectric power plants, irrigation, consumptive use, and local ecosystems.125 Decreasing summer runoff will result in lower water levels in lakes and rivers, which in turn will cause re-suspension of sediment and free harmful compounds within the sediment.126 Destabilization due to glacial retreat can also increase the risk of "geomorphic hazards" such as floods, avalanches, and debris flow.127
Perhaps most important are the ecosystem services provided by glacier water systems. The detrimental chemical and physical effects of glacial retreat can significantly impact the biological integrity of downstream ecosystems. For instance, freshwater temperature is extremely important for salmon spawning.128 The increased temperature in late summer due to glacial recession would represent yet another stress to species that are already imperiled. On the other hand, abundance of macroinvertebrates is likely to increase with reduced meltwater contributions.129 This increase in abundance at a given site, however, will likely be accompanied by a
decrease in biodiversity between streams or within a region.130 This is due to the fact that streams will become more homogeneous in their characteristics and thus species highly-adapted for conditions that include significant meltwater contributions will be extirpated.131 These vulnerable species will be lost as the balance of meltwater and other water sources changes for a given stream.
Specialized alpine ecosystems are highly adapted to the temperature and flow conditions that currently exist near glaciers. Due to their highly adapted nature, these ecosystems are vulnerable to small changes and thus would likely be unable to survive a transition to a different stream system.132 Glaciers also host microbial ecosystems within the ice. These ecosystems are sensitive to heat changes on varying time scales.133 One
134 A.M. Anesio et al., High Microbial Activity on Glaciers: Importance to the Global Carbon Cycle
, 15 GLOBAL CHANGE BIOLOGY 955 (2009).
135 Eran Hood et al.,
Glaciers as a Source of Ancient and Labile Organic Matter to the Marine Environment, 462 NATURE 1044 (2009).
137 EPA, Water: Wetlands, Oceans, and Watersheds,
Air Pollution and Water Quality, http://www.epa.gov/owow/airdeposition/index.html (last visited Jan. 11, 2010).
138 E.P.A., Total Maximum Daily Loads (TMDLs) and Mercury, http://www.epa.gov/owow/tmdl/mercury/ (last visited December 28, 2009).
study suggests that globally the microoganisms living in cryoconite holes on the surface of glaciers may fix as much as 64 Gg of carbon per year.134 Thus, loss of glacial extent would reduce this potential for carbon sequestration and further exacerbate global warming.
For glaciers that are part of coastal watersheds, such as those surrounding the Gulf of Alaska, glaciers are an important source of ancient and labile organic matter for the marine environment.135 Changes in glacier volume due to climactic factors could therefore alter the age, quantity and reactivity of dissolved organic matter entering coastal oceans.136
Thus, not only are glaciers directly connected to traditional navigable waters, but they also significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ Accordingly, EPA has authority to set water quality criteria for glaciers under the Clean Water Act.
Atmospheric Depositions of Black Carbon onto Waters of the United States are Subject to Clean Water Act Authority
Air pollution often has serious adverse impacts on water quality. As recognized by EPA, "[a]irborne pollutants from human and natural sources can deposit back onto land and water bodies, sometimes at great distances from the source, and can be an important contributor to declining water quality."137 Accordingly, pollutants that are emitted into the atmosphere but ultimately impact water quality are regulated under the Clean Water Act. For example, mercury is an airborne pollutant that is regulated under Section 303(d) of the Act.138 Like black carbon, impairment of a waterbody from mercury is predominately a result of atmospheric deposition from a "combination of local, regional and international sources."139 Therefore, the fact that black carbon impairs sea ice and glaciers as a result of atmospheric deposition is not an impediment to regulation under the Clean Water Act.
EPA has the duty under the Clean Water Act to protect and maintain the water quality of our nation. Black carbon pollution jeopardizes the chemical, physical and biological integrity of sea ice, glaciers and the ecosystems they support. This fundamental threat to the continued existence of sea ice and glaciers must be addressed
140 Clean Water Act § 304(a)(1), 33 U.S.C. § 1314(a)(1) (2006).
Final Aquatic Life Ambient Water Quality Criteria for Diazinon, 71 Fed. Reg. 9336 (Feb. 23, 2006).
Notice of Availability of Final Aquatic Life Criteria Document for Tributyltin, 69 Fed. Reg. 342, 343 (Jan. 5, 2004).
under the Clean Water Act. Addressing the adverse effects of black carbon deposition begins with accurate, science-based water quality criteria. EPA’s adoption of water quality criteria triggers the adoption of water quality standards by the states, which are the basis for the required development of implementation plans designed to meet these standards. Establishing water quality criteria for black carbon under Section 304 of the Act is therefore an important first step toward the restoration of sea ice and glaciers.
EPA Must Develop and Publish Water Quality Criteria for Black Carbon Deposition on Sea Ice and Glaciers
The Center for Biological Diversity formally requests that EPA initiate a rulemaking pursuant to the Clean Water Act, 33 U.S.C. § 1314(a)(1), to address water quality threats posed by black carbon to sea ice and glaciers. This Petition for rulemaking specifically requests that EPA adopt a criterion for black carbon stating:
Black carbon concentrations on sea ice and glaciers should not deviate measurably from preindustrial levels.
Section 304 of the Clean Water Act requires EPA to publish and revise water quality criteria "from time to time" to "accurately reflect the latest scientific knowledge."140 As presented herein, there is extensive new information concerning the adverse effects of black carbon deposition on sea ice and glaciers. Pursuant to its duties under the Clean Water Act, EPA must consider this new information and publish national water quality criteria for black carbon.
Water quality criteria must reflect the latest scientific knowledge related to the effects of pollutants "on health and welfare, including, but not limited to, plankton, fish, shellfish, wildlife, plant life, shorelines, beaches, esthetics, and recreation."141 The criteria must also reflect the latest scientific knowledge "on the concentration and dispersal of pollutants, or their byproducts, through biological, physical, and chemical processes; and . . . on the effects of pollutants on biological community diversity, productivity, and stability."142 According to EPA, a "water quality criterion is a level of a pollutant or other measurable substance in water that, when met, will protect aquatic life and/or human health."143 Water quality criteria developed under Section 304(a) must be "based solely on data and scientific judgments . . . . [t]hey do not consider economic impacts or the technological feasibility of meeting the criteria."144
Petitioner requests a new criterion for concentrations of black carbon on sea ice and glaciers that allows
no measurable deviation from preindustrial levels. The latest scientific information indicates that, in today’s warmer climate, even "very small
145 Hearing, supra note 16, at 74 (statement of Charles Zender, Associate Professor, University of California at Irvine).
146 Hansen & Nazarenko, supra note 17, at 424.
147 Id. at 428.
148 Id. at 427.
149 Pronsolino v. Nastri, 291 F.3d 1123, 1127 (9th Cir. 2002).
150 See, e.g., EPA, National Recommended Water Quality Criteria, Part IV, 63 Fed. Reg. 67548 (Dec. 7, 1998); Clean Water Act § 303(b), (c); 33 U.S.C. § 1313(b), (c).
151 Clean Water Act § 303, 33 U.S.C. § 1313 (2006).
152 Clean Water Act § 303(d), 33 U.S.C. § 1313(d) (2006).
153 Clean Water Act § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C) (2006); Pronsolino, 291 F.3d at 1129.
154 Clean Water Act § 303(e), 33 U.S.C. § 1313(e) (2006).
concentrations of black carbon impurities (~10 ppb) are triggering astonishingly large ice-albedo warming."145 Pristine Antarctic regions, which could serve as a basis from which to establish preindustrial levels, have been found to contain black carbon concentrations of 0.1-0.3 ppbw.146 Even seemingly minor increases from these levels have been found to accelerate melt. For example, black carbon amounts as low as 2 ppbw on Greenland may affect visible albedo as much as 1%, which is a measurable contribution compared with the balance of fluxes that determine ice sheet mass balance.147 Black carbon measurements in the Alps revealed concentrations as large as 100 ppbw, enough to reduce the visible albedo by approximately 10% and double the absorption of sunlight.148
Water quality criteria established under Section 304 serve an important regulatory function that will help save sea ice, glaciers, and the ecosystems they support. Under the Clean Water Act, states are required to set water quality standards for all waters within their boundaries regardless of the sources of pollution entering the waters.149 EPA’s adoption of water quality criteria compel states to adopt this standard for their own waters, or an alternative standard subject to EPA approval and consistent with the Act.150 Once adopted, the standards are the basis for developing regulatory controls on the discharge or release of pollutants.151 Specifically, Section 303(d) requires states to identify waters for which existing controls are inadequate to ensure compliance with any water quality standards applicable to those waters and to establish a "total maximum daily load" (TMDL) at the level necessary to implement the applicable water standards.152 TMDLs limit the total amount of a pollutant that can be loaded into the applicable water from all combined sources and serve as a link in the implementation chain that includes federally-regulated point source controls, state or local plans for point and nonpoint source pollution reduction, and assessment of the impact of such measures on water quality, all to the end of attaining water quality goals for the nation’s waters.153 Under Section 303(e) of the Act, states are required to have a continuing planning process approved by EPA that provides, among other things, adequate implementation, including schedules of compliance, to meet its water quality standards.154 Accordingly, the development of water quality criteria by EPA is the first step toward measures to limit black carbon pollution on sea ice and glaciers.
155 Clean Water Act § 303(a)(2), 33 U.S.C. § 1314(a)(2) (2006).
EPA Must Develop and Publish Information on the Factors Necessary to Maintain the Integrity of Sea Ice and Glaciers
Section 304(a)(2) of the Clean Water Act requires that EPA publish and "from time to time thereafter revise" information on: (A) the factors necessary to restore and maintain the chemical, physical, and biological integrity of all of the nations waters; (B) the factors necessary for the protection and propagation of fish, shellfish, and wildlife; (C) measurement and classification of water quality; and (D) identification of pollutants suitable for measuring maximum daily loads related to water quality.155 States use this information to adequately evaluate the Section 304(a)(1) criteria and its applicability to the state’s waters. This information also plays a valuable role in the education of state personnel and the management of state water resources. States can better apply the necessary controls on black carbon emissions to address the loss of sea ice and glaciers if EPA first provides information under Section 304(a)(2)(A).
Pursuant to Section 304(a)(2), Petitioner requests that EPA publish information discussing the factors necessary to maintain the integrity of sea ice and glaciers. It may be helpful to begin this discussion with information on the current and projected losses of sea ice and glaciers and the present and future impacts resulting from this loss. The primary contributors to sea ice and glacier depletion, specifically increased atmospheric concentrations of greenhouse gases and black carbon can then be discussed. As set forth in this Petition, the scientific literature provides extensive data on the role of black carbon in accelerating the loss of sea ice and glaciers.
Because local sources of black carbon emissions are thought to have a disproportionate effect on sea ice and glaciers, it would be helpful for EPA to publish information on sources of black carbon emissions in Alaska and its surrounding waters as well as sources of emissions proximate to glaciers. Once these sources are identified, EPA can provide information on potential measures to reduce emissions from these sources.
The role of black carbon in an overall strategy to save Arctic sea ice and glaciers should also be discussed. Because black carbon has a lifespan in the range of days to weeks, controls on black carbon can provide an immediate climate benefit and an important window of opportunity to stem the loss of glaciers and sea ice until atmospheric concentrations of much longer-lived greenhouse gases are reduced to safe levels.
The provisions of this Petition are severable. If any provision of this Petition is found to be invalid or unenforceable, the invalidity or lack of legal obligation shall not affect other provisions of the Petition.