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ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CENTER FOR BIOLOGICAL 

DIVERSITY,

Plaintiff,

v.

UNITED STATES 

ENVIRONMENTAL PROTECTION 

AGENCY,

Defendant.

CASE NO. C13-1866JLR

AMENDED ORDER ON CROSS 

MOTIONS FOR SUMMARY 

JUDGMENT

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”) 

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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. WA000712 (“Blue Ribbon Panel”) at 4. Regional drivers include both natural phenomena, 

such as upwelling of deep ocean water and freshwater inputs from rivers, and 

 

1 The parties have provided the court with an electronic copy of the administrative and 

supplemental administrative records for EPA’s decisions to approve Washington’s and Oregon’s Section 

303 lists of impaired waters. (See Dkt. ## 27, 28.) References found in Washington’s record are denoted 

by the prefix “WA-” followed by a six-digit page number, and references found in Oregon’s records are 

denoted by the prefix “OR-” or “OR2-” followed by a six-digit page number. If the same six-digit page 

number contains multiple references (or as otherwise necessary for clarity), the court will refer to the 

references by their first author and year of publication, or other appropriate identifier. 

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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 (CaCO3

2-

). 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 (CO3

2-

) 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) 

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ORDER- 4

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 CFR § 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 CFR § 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 CFR § 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 CFR § 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 

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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 

 

2

Point sources are discrete conveyances, such as pipes or tunnels. Pronsolino, 291 F.3d at 1126. 

Nonpoint sources are non-discrete sources, such as agricultural runoff. Id. The Clean Water Act 

establishes federal controls for pollution from “point sources,” but provides “no direct mechanism to 

control nonpoint source pollution.” Id. at 1126-27. Instead, the Act provides federal grants to states to 

accomplish the task of regulating nonpoint sources. Id. 

3 Washington assigns waters to one of five categories. WA-001373-78; see also WA-001218. As 

relevant here, Category 1 waters are waters in attainment of water quality standards, Category 2 waters 

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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”).

//

 

are waters of concern, Category 3 waters lack sufficient data to make a water quality determination, 

Category 4 waters are impaired but do not require a TMDL, and Category 5 waters are impaired. WA001373-78. Pursuant to Washington’s Water Quality Program Policy, waters violate Washington’s pH 

standard, and therefore are placed in Category 5, only if the data shows that a minimum of three 

excursions from the pH standard exist and at least 10% of values in a given year do not meet the pH 

criterion. WA-13399-40. An excursion is a pollutant value that is above or below a water quality 

standard criterion expressed as a range. WA-01416. 

4 Washington did, however, place Puget Sound in Category 2 as a water of concern for “potential 

impacts to fish and shellfish habitat from human activities, including conditions that make the waters 

more vulnerable, such as . . . ocean acidification.” WA-000154. Washington concluded that “some 

credible data create concerns of possible impact to designated uses, but fall short of demonstrating that 

there is a persistent problem.” Id.

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ORDER- 7

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 

require listing any marine waters as impaired. See OR2-0000286-91. 

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ORDER- 8

D. CBD’s Challenge

During the appropriate notice and comment periods, CBD submitted comments 

and scientific studies to Washington, Oregon, and EPA arguing that Washington’s and 

Oregon’s water quality standards were violated due to ocean acidification. See, e.g.,

WA-000066-70; WA-000071-86; WA-000198; WA-00813; OR2-000286; OR2-004614; 

OR004557. In this lawsuit, CBD challenges EPA’s approval of Washington’s and 

Oregon’s 303(d) lists as arbitrary and capricious because the lists do not identify any 

coastal waters as impaired by ocean acidification. (See generally Compl.) 

The court previously denied the Western States Petroleum Association and 

American Petroleum Institute’s (collectively, “API”) motion to intervene, but granted 

API amicus curiae status. (See 2/18/14 Order (Dkt. # 22).) Later, the court also granted 

amicus curiae status to the Ecology Department of the State of Washington (“Ecology”), 

the Pacific Coast Federation of Fishermen’s Association, Southern California Trawlers’ 

Association and Institute of Fisheries Resources (collectively, “Fishing Associations”), 

and climate Ken Caldeira and Jane Lubchenco (collectively, “the Scientists”). (Dkt. 

## 23, 46, 49.) CBD and EPA stipulated to a modified briefing schedule for their crossmotions for summary judgment. (Sched. Ord. (Dkt. # 26).) These motions, as well as the 

amici curiae briefs, are now before the court. 

III. ANALYSIS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment 

where the moving party demonstrates (1) the absence of a genuine issue of material fact 

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and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The 

moving party bears the initial burden of showing the absence of a genuine issue of 

material fact. Celotex, 477 U.S. at 323. 

If the moving party does not bear the ultimate burden of persuasion at trial, it can 

show the absence of an issue of material fact in two ways: (1) by producing evidence 

negating an essential element of the nonmoving party’s case, or (2) by showing that the 

nonmoving party lacks evidence of an essential element of its claim or defense. Nissan 

Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving 

party will bear the ultimate burden of persuasion at trial, it must establish a prima facie 

showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 

48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, 

if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473.

If the moving party meets its burden of production, the burden then shifts to the 

nonmoving party to identify specific facts from which a factfinder could reasonably find 

in the nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 252 (1986). In determining whether the factfinder could reasonably 

find in the nonmoving party’s favor, “the court must draw all reasonable inferences in 

favor of the nonmoving party, and it may not make credibility determinations or weigh 

the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 

When adjudicating cross-motions for summary judgment, a court “evaluate[s] each 

motion separately, giving the nonmoving party in each instance the benefit of all 

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reasonable inferences.” A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 

(9th Cir. 2006).

B. Standing 

Before reaching the merits of the action, the court addresses CBD’s standing to 

bring this challenge. API raises the issue of Article III standing in its amicus curiae brief5

(API Br. (Dkt. # 44)), and even if it did not, the court has “an independent duty to assure 

that standing exists, irrespective of whether the parties challenge it.” Washington Envtl. 

Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (citing Summers v. Earth Island 

Inst., 555 U.S. 488, 499 (2009)).

A plaintiff must demonstrate standing for each claim that he or she seeks to press 

and for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 

(2006). A plaintiff also bears the burden of proof to establish standing “with the manner 

and degree of evidence required at the successive stages of the litigation.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the summary judgment stage, a 

 

5 As a preliminary matter, the court addresses API’s motion to file a reply brief on the issue of 

standing. (API Mot. for Reply (Dkt. # 58).) In granting amicus curiae status, the court cautioned that an 

amicus curiae “shall not file reply memoranda . . . unless authorized in advance by the court.” (2/18/14 

Order at 21 (citing Federal Rule of Appellate Procedure 29(f).) Because the Western District of 

Washington’s Local Rules do not address the situation of amicus curiae, the court looked to the Federal 

Rules of Appellate Procedure for guidance. (See id.) The Federal Rules of Appellate Procedure permit 

amicus reply briefs with court permission. See Fed. R. App. P. 29(f). 

The court is aware that the Ninth Circuit’s Circuit Rule 29-1 disallows amicus reply briefs at the 

federal appellate level. Nonetheless, the court concludes that a reply brief is warranted here. First, API is 

the only entity to contest the issue of standing in this litigation. As such, its input on the issue will be of 

use to the court. Second, standing is a critical jurisdictional requirement that should be resolved on a full 

record and thorough briefing. Finally, CBD will not be prejudiced by the reply brief because CBD has 

taken full advantage of the two opportunities it was afforded show standing, first in its opening motion 

and then in its combined response and reply (CBD Resp. (Dkt. # 57)). For these reasons, the court 

GRANTS API’s motion to file its proposed reply brief (API Reply (Dkt. # 58-1)). 

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plaintiff cannot rest on mere allegations, “but must set forth by affidavit or other evidence 

specific facts, which for purposes of the summary judgment motion will be taken to be 

true.” Bellon, 732 F.3d at 1139 (quoting Lujan, 504 U.S. at 561).

Where, as here, the plaintiff is an organization, it may assert standing on behalf of 

its members as long as the “members would otherwise have standing to sue in their own 

right, the interests at stake are germane to the organization’s purpose, and neither the 

claim asserted nor the relief requested requires the participation of individual members in 

the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 

(2000); see also Bellon, 732 F.3d at 1139. The court finds that CBD meets the last two 

criteria, which API does not challenge.6 As such, the crux of the standing inquiry is the 

first criterion: whether CBD’s members would otherwise have standing to sue in their 

own right. An individual has Article III standing to sue if (1) he or she suffered an injury 

in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly 

traceable to the challenged conduct; and (3) the injury is likely to be redressed by a 

favorable court decision. Bellon, 732 F.3d at 1139-40 (citing Lujan, 504 U.S. at 560-61); 

//

 

6

Specifically, CBD is a non-profit organization dedicated to the conservation of imperiled 

species, and has previously engaged in efforts to protect marine species in Washington and Oregon. 

(Galvin Decl. (Dkt. # 33-6) §§ 5-9.) As discussed in more detail in the following section, CBD’s 

members assert aesthetic and environmental interests in the Pacific Northwest shellfish and coastal 

marine habitats endangered by ocean acidification. (See generally Antoine Decl. (Dkt. # 33-2); Weitzer 

Decl. (Dkt. # 33-3); Moritz Decl. (Dkt. # 33-4); Easton Decl. (Dkt. # 33-5).) These members rely on 

CBD to represent their interests in protecting marine species from threats like ocean acidification. (See, 

e.g., Antoine Decl. ¶ 5; Weitzer Decl. ¶ 5.) Accordingly, the interests at stake in this litigation are 

germane to CBD’s purpose. Moreover, the participation of individual members in the lawsuit is not 

required. 

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see also Friends of the Earth, 528 U.S. at 180-81. The court addresses each element 

below. 

1. Injury in fact

“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that 

they use the affected area and are persons for whom the aesthetic and recreational values 

of the area will be lessened by the challenged activity.” Friends of the Earth, 528 U.S. at 

183; see also Natural Res. Def. Council v. EPA, 526 F.3d 591, 601 (9th Cir. 2008)

(stating that an environmental plaintiff can satisfy the injury requirement by showing that 

the challenged activity impairs his or her “aesthetic and environmental well-being”). 

“[N]othing necessitates a showing of existing environmental harm.” Ocean Advocates v. 

U.S. Army Corps of Engineers, 402 F.3d 846, 860 (9th Cir. 2005). Rather, “an increased 

risk of harm can itself by injury in fact for standing.” Id.; Ecological Rights Found. v. 

Pac. Lumber Co., 230 F.3d 1141, 1151-52 (9th Cir. 2000) (“’A plaintiff need not wait 

until his lake becomes barren and sterile or assumes an unpleasant color and smell before 

he can invoke the protections of the Clean Water Act.’”) (quoting Friends of the Earth, 

Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000) (internal 

punctuation omitted)). Therefore, an individual can establish ‘injury in fact’ by “showing 

a connection to the area of concern sufficient to make credible the contention that the 

person’s future life will be less enjoyable—that he or she really has or will suffer in his or 

her degree of aesthetic or recreational satisfaction—if the area in question remains or 

becomes environmentally degraded.” Ecological Rights Found., 230 F.3d at 1149. 

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CBD submits declarations from several of its members attesting to specific 

aesthetic and recreational injuries they are suffering or will suffer due to ocean 

acidification. Specifically, Jessica Antoine regularly visits the beaches in Netarts Bay, 

Pacific City, and Oswald West State Park in Oregon to go tidepooling, clamming, and 

purchase oysters, and is concerned that her ability to harvest clams and other shellfish 

and explore tidepools with her family will decrease due to ocean acidification. (Antoine 

Decl. ¶¶ 7-17.) 

David Weitzer visits the Washington and Oregon coastlines, including Willapa

Bay in Washington and Gearhart, Seaside, Indian Beach, Canon Beach, Hug Point, Arch 

Cape, Falcon Cove, and Manzanita in Oregon, on average six times per year in order to 

dig for butter, steamer, and razor clams; harvest oysters, mussels, and barnacles; surf; and 

investigate tidepools to observe hermit crabs, small fish, chitons, starfish, anenomes, 

urchins, and other organisms. (Weitzer Decl. ¶¶ 6-15.) Over the last 10 years he has 

noticed that there are fewer and fewer oysters and clams available to harvest, the quality 

of the oyster shells has declined (they are now more brittle), the number and diversity of 

species in the tidepools has declined, and the number of shells washed ashore is reduced. 

(Id.) He is concerned that ocean acidification is responsible for these changes. (Id.) 

 Anna Moritz regularly visits Puget Sound, including Golden Gardens Park,

Richmond Beach, and Whidbey Island, as well as the coasts of Washington and Oregon, 

including Fort Stevens State Park, Nehalem Bay, Manzanita, and Westport, to go 

tidepooling and beachcombing with her family. (Moritz Decl. ¶¶ 5-17.) Additionally, 

she plans to camp with her family at Rialto Beach on the Olympic Peninsula this 

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upcoming summer. (Id.) She is concerned that if the region’s coastal waters continue to 

increase in acidification, fewer shelled animals will survive, limiting her and her family’s 

opportunities for and enjoyment in finding shells, sea stars, sand dollars, and tidepool 

creatures during their trips to Puget Sound and the Washington coast. (Id.) 

Katherine Easton owns a house on the water on Camano Island, in Puget Sound, 

which she visits almost every weekend during the summer, fall, and spring to walk 

through the extensive tideflats by her house and examine crabs, clams, and other 

creatures. (Easton Decl. ¶¶ 6-12.) She worries that ocean acidification is harming 

shellfish and small prey species that will affect the entire food web, making it more 

difficult for her to view not only shellfish, but also whales, seals, and other marine 

creatures in the Sound. (Id.) 

These alleged harms and increased risk of harms fall squarely into the category of 

aesthetic and recreational injuries countenanced by the Supreme Court in Friends of the 

Earth. See Friends of the Earth, 528 U.S. at 183; Ocean Advocates, 402 F.3d at 860. 

Moreover, these alleged harms span a sample set of beaches and coastline that is 

geographically representative of Washington’s and Oregon’s coastlines and estuaries. 

See Alaska Center for Environment v. Browner, 20 F.3d 981, 985 (9th Cir. 1994) (finding 

that a plaintiff seeking state-wide environmental relief was not required to demonstrate

harm over the entire state but was only required to establish that a representative number 

of areas were adversely affected by the government’s action); Defenders of Wildlife v. 

U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005) rev’d and remanded sub 

nom. on unrelated grounds Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 

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U.S. 644 (2007); Sierra Club v. Johnson, No. C 08-01409 WHA, 2009 WL 482248, at *3 

(N.D. Cal. Feb. 25, 2009). Moreover, API does not challenge the legal sufficiency of 

CBD’s members’ statements regarding injury. Accordingly, the court finds that the

declarations of CBD’s members adequately provide “specific facts” regarding their 

imminent, concrete injuries to establish injury in fact.7 See Lujan, 504 U.S. at 561; 

Natural Res. Def. Council, 526 F.3d at 601; Friends of the Earth, 528 U.S. at 183. 

2. Causation and redressability 

The “fairly traceable” and “redressability” components for standing overlap and 

are “two facets of a single causation requirement.” Bellon, 732 F.3d at 1146 (quoting 

Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)). “The two are distinct insofar as 

causality examines the connection between the alleged misconduct and injury, whereas 

redressability analyzes the connection between the alleged injury and requested judicial 

relief.” Id.

To satisfy the causality element, CBD must show that the injury is causally linked 

or “fairly traceable” to the EPA’s alleged misconduct, and not the result of misconduct of 

some third party not before the court. Id. (citing Lujan, 504 U.S. at 560-61). The causal 

connection “cannot be too speculative or rely on conjecture about the behavior of other 

parties, but need not be so airtight at this stage of litigation as to demonstrate that the 

plaintiffs would succeed on the merits.” Ocean Advocates, 402 F.3d at 860 (quoting 

 

7 CBD also alleges that its members have suffered an informational injury from EPA’s conduct. 

(CBD Resp. at 10-11 (citing Fed. Elections Comm’n v. Akins, 524 U.S. 11 (1998)).) Because the court 

concludes that CBD has shown a substantive injury, the court does not address CBD’s theory regarding 

informational injury. 

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Ecological Rights Found., 230 F.3d at 1151). A “causal chain does not fail simply 

because it has several ‘links,’ provided those links are not hypothetical or tenuous and 

remain plausible.” Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (quoting 

Nat’l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)) (internal 

punctuation omitted). Moreover, CBD need not show that EPA is the “sole source” of its 

members’ injuries, and “need not eliminate any other contributing causes to establish its 

standing.” Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011); see also 

Ocean Advocates, 402 F.3d at 860 (finding causation because although other factors also 

caused the plaintiffs’ injury, the link between the agency’s action and the injury was “not 

tenuous or abstract”). 

A plaintiff meets the redressability requirement if it is likely, even if not 

necessarily certain, that his injury can be redressed by a favorable decision. See 

Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 2004); Beno v. Shalala, 30 F.3d 

1057, 1065 (9th Cir. 1994) (stating that a plaintiff “must show only that a favorable 

decision is likely to redress his injury, not that a favorable decision will inevitably redress 

his injury”). However, relief “that does not remedy the injury suffered cannot bootstrap a 

plaintiff into federal court.”8 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 

(1998).

 

8 A plaintiff that challenges the violation of “a procedural right to protect his concrete interests 

can assert that right without meeting all the normal standards” for traceability and redressability. Natural 

Res. Def. Council v. Jewell, 749 F.3d 776, 782-83 (9th Cir. 2014); see also Massachusetts v. EPA, 549 

U.S. 497, 517-18 (2007). Such a litigant “need only demonstrate that he has a procedural right that, if 

exercised, could protect his concrete interests and that those interests fall within the zone of interests 

protected by the statute at issue.” Jewell, 749 F.3d at 783 (internal quotation omitted); see also Salmon 

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a. Washington Environmental Council v. Bellon

API argues that Washington Environmental Council v. Bellon, 732 F.3d 1131, 

1139 (9th Cir. 2013) precludes CBD from establishing that the EPA’s approval of the 

303(d) lists caused its members’ injuries and that a favorable ruling would redress those 

injuries. (See API Br.) In Bellon, the Ninth Circuit held that plaintiffs alleging aesthetic 

and recreational injuries linked to climate change in Washington did not have standing to 

challenge EPA’s approval of Washington’s decision not to regulate the greenhouse gas 

emissions of the state’s five local oil refineries under the Clean Air Act. See id. at 1136-

43. The Court reasoned that, because climate change was the cumulative result of 

greenhouse gas emissions from numerous independent sources intermingling on a global 

scale, the plaintiffs were unable to show that their localized injuries were either fairly 

traceable to or redressable by EPA’s failure to require greenhouse gas emission limits on 

the local oil refineries. Id. at 1143-44; but see Massachusetts v. EPA, 549 U.S. at 524; 

Covington v. Jefferson Cnty., 358 F.3d 626, 654 (9th Cir. 2004) (Gould, J., concurring); 

Washington Envtl. Council v. Bellon, 741 F.3d 1075, 1080 (9th Cir. 2014) (Gould, J.,

dissenting from denial of rehearing en banc). 

 

Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008). This lower standard 

does not apply to CBD because CBD does not assert a procedural right in this action. The Clean Water 

Act’s citizen suit provision, which applies to nondiscretionary duties by EPA, is inapplicable to CBD’s 

challenge. (See Compl. ¶ 9); 5 U.S.C. § 706(2)(a); 33 U.S.C. § 1365(a); Natural Res. Def. Council, 542 

F.3d at 1245. Furthermore, CBD does not allege that EPA failed to adhere to any procedure mandated by 

statute or regulation. Rather, CBD challenges EPA’s substantive decision to approve two 303(d) lists 

excluding waters allegedly impaired by ocean acidification. See City of Dover v. EPA, No. CV 12-

1994(JDB), 2014 WL 1410399, at *8 (D.D.C. Apr. 14, 2014) (finding that challenge to EPA’s approval 

of New Hampshire’s 303(d) list did not allege violation of a procedural right); see generally 

Massachusetts, 549 U.S. at 517-18. Therefore, the standing requirements are not lowered for CBD. 

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The parties here agree that oceanic uptake of atmospheric, anthropogenic carbon is 

the primary driver of ocean acidification on a global scale. (See CBD Resp. at 16; API 

Br. at 7); see also Feeley 2012 at 9. API reasons that, because CBD cannot point to a 

mechanism under the Clean Water Act that addresses global carbon emissions in an 

appreciable way, and because the record lacks evidence regarding the effect of local 

carbon emissions on local ocean acidification, Bellon precludes CBD from showing 

causation and redressability. (See API Br. at 9-11.)

CBD, however, bases its causation and redressability arguments on a different 

premise. CBD contends that regional human-caused drivers exacerbate ocean 

acidification along Washington’s and Oregon’s coasts, and that local pollution controls 

can reduce the input from these drivers. (See, e.g., CBD Mot. at 15.) CBD maintains 

that, if its suit to add acidified-impaired waters to the states’ 303(d) lists is successful, 

these local measures could be employed to implement the applicable TMDLs, thereby 

alleviating its members’ injuries. (See CBD Resp. at 14.); see also 33 U.S.C. § 1313(e); 

Pronsolino, 291 F.3d at 1128. 

Framed as such, causation and redressability are two sides of the same coin: 

CBD’s members’ injuries are traceable to EPA’s conduct and redressable by a favorable 

ruling to the extent that coastal waters improperly not identified as acidified-impaired are 

influenced by sources that can be mitigated by local actions. Accordingly, the court 

addresses these two standing elements together in the following sections. 

//

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b. CBD’s evidence

CBD relies on several scientific studies in the administrative record, as well as the 

2012 report by the Washington State Blue Ribbon Panel on Ocean Acidification,9and a 

declaration by Dr. Burke Hales, Professor of Oregon Ecology and Biogeochemistry at 

Oregon State University (Hales Decl. (Dkt. # 57-1)) to establish causation and 

redressability. This evidence shows that “although atmospheric CO2 is the major driver 

of acidification globally, near the coasts—particularly highly populated or developed 

areas—other drivers that generate additional CO2 in the water column also contribute 

significantly to acidification.” Feeley 2012 at 9. In particular, “acidification in 

Washington State coastal waters is driven by a combination of factors, particularly in the 

deep waters of Puget Sound and the nearshore regions.” Id. at 13. Similarly, regional 

drivers also affect the acidification of Oregon’s coastal waters. Id. at 9-15. 

CBD identifies the following regional drivers that influence Pacific Northwest 

coastal waters. First, the “near-surface coastal waters off Washington and Oregon” are 

unusually susceptible to conditions of respiration and hypoxia (low oxygen levels), which 

are caused by algae growth stimulated by excessive nutrients. Feeley 2012 at 12. These 

processes are “acknowledged to be important drivers of ocean acidification, particularly 

when the land nearby is highly populated or agriculturally developed.” Id. In such areas, 

“human activity increases the amount of nutrients such as nitrate, phosphate, and iron 

 

9 The Washington State Blue Ribbon Panel on Ocean Acidification (“Blue Ribbon Panel”), which 

included scientists, industry representatives, and state, local, and federal policy makers, was convened 

under the auspices of the National Oceanic and Atmospheric Administration’s National Shellfish 

Initiative to develop recommendations to respond to ocean acidification and reduce its harmful causes and 

effects in Washington. Blue Ribbon Panel at xvi.

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flowing off the land” from sources such as wastewater treatment facilities, stormwater 

outfalls, concentrated animal feedlots, grazing lands, and urban runoff. Id.; Blue Ribbon 

Panel at 43. For example, human sources of nitrogen in Puget Sound have increased 

steadily to the point where they form a “considerable contribution” to nitrate levels that 

exceed natural conditions. Feeley 2012 at 29, 33. “In particular, Hood Canal, South 

Puget Sound, and other shallow, enclosed bays and estuaries are particularly susceptible 

to periodic, sometimes catastrophic low oxygen levels that can lead to fish kills and other 

biological impacts.”10 Blue Ribbon Panel at 44. 

Second, “Washington’s marine waters are affected by several major rivers (the 

Columbia, Frasier, and Skagit), and thousands of smaller rivers and streams draining the 

watershed.” Feeley 2012 at 14. Dissolved and organic carbon inputs from rivers “can 

have a substantial influence on the marine carbon system in coastal waters.” Feeley 2012 

at 15. Anthropogenic sources of dissolved carbon include stormwater runoff and 

municipal and industrial wastewater, as well as land use change and road development. 

Id.; Blue Ribbon Panel at 12, 43. Additionally, anthropogenic sources of iron and silicate 

pollutants contribute to hypoxia and acidification. Blue Ribbon Panel at 14. The 

Columbia River plume delivers a “large supply” of nutrients and particulates to the 

 

10 Puget Sound is particularly vulnerable to anthropogenic nutrient flows. “As an estuary with 

[approximately] 4,000 [kilometers] of shoreline, Puget Sound has an extensive land-water interface, with 

large fluxes of freshwater, sediments, organic matter, nutrients, and pollutants entering the sound from a 

variety of natural and urbanized landscapes. Within Puget Sound, circulation is sluggish in many of the 

restricted inlets of Hood Canal and South Sound so that terrestrial inputs may have relatively localized 

impacts. For instance, localized inputs of nitrogenous nutrients, such as are associated with development 

and urbanization, have been observed to stimulate enhanced primary production in surface waters in 

certain parts of Puget Sound with restricted circulation and developing shorelines.” Feeley 2010 at 443 

(internal citations omitted). 

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Columbia Estuary and adjacent Washington and Oregon coasts. Feeley 2012 at 19; Blue 

Ribbon Panel at 14-15. Smaller estuaries, such as Willapa Bay in Washington, face 

similar problems on a smaller scale. Blue Ribbon Panel at 29, 43. 

Finally, deposition of nitrogen and sulfur compounds from anthropogenic nitrous 

oxides and sulfur oxide emissions “can lead to reduced pH and alkalinity.” Feeley 2012

at 14. Estimates based on data and model results “show that in coastal regions fossil fuel 

combustion and agricultural practices produce increased atmospheric inputs of

strong acids . . . and bases . . . to the coastal ocean that can further reduce the pH by as 

much as an additional 50 %. Feeley 2010 at 446. The effect of these gases is more 

important in coastal areas than in the open ocean due to the coastal areas’ proximity to 

the sources of the emission. Feeley 2012 at 37. 

In addition, CBD’s evidence shows that “Washington’s marine waters are 

particularly vulnerable to ocean acidification because of regional factors that exacerbate 

the acidifying effects of global carbon dioxide emissions.” Blue Ribbon Panel at xii; see 

also Feeley 2012 at xi (“Washington State is particularly vulnerable because of its 

location and regional oceanography.”) One of the most important natural regional factors 

is coastal upwelling. Id. With respect to natural regional drivers, Dr. Hales agrees that 

“[t]he coastal and estuarine waters of the Pacific Northwest have always been naturally 

poised near important biological thresholds . . . . The addition of a small amount of 

additional CO2 has combined with the natural character of the system to dramatically 

increase the frequency, intensity, and duration of . . . low-pH events.” (Hales Decl. (Dkt. 

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# 57-1) ¶ 8.)11 Dr. Hales confirms that “[l]ocal inputs from human activities such as 

runoff, erosion, pollution, or sewage can contribute to carbonate chemistry and pH 

changes in coastal areas in Oregon and Washington.” (Id. ¶ 11.) He warns that, for 

systems such as the Pacific Northwest “with carbonate-chemistry conditions that are 

already showing impact on local organisms,” intensification caused by local 

anthropogenic sources “can have significant consequences.” (Id.) 

CBD’s evidence also identifies multiple local mitigation measures that can address 

“local and regional ‘hot spots’ of ocean acidification.” See generally WA-000731 

(“Kelly 2011”) at 1036-37; Blue Ribbon Panel at 44-46; (Hales Decl. ¶ 12 (“[I]n certain 

 

11 EPA moves to strike Dr. Hales’ declaration for two reasons. First, EPA complains that Mr. 

Hales’ declaration is not a part of the administrative record. Dr. Hales’ declaration, however, was 

submitted for the limited purpose of satisfying Article III standing requirements. (See CBD Resp. at 16-

19.) The court does not rely on this declaration to judge the merits of CBD’s claims against EPA. EPA 

cites to no authority requiring that standing be established on the administrative record, and, to the extent 

that is EPA’s position, EPA fails to explain why it challenged Mr. Hales’ standing declaration but not 

CBD’s members’ declarations. Both the Ninth Circuit and the Supreme Court have relied on scientists’ 

declarations when evaluating standing in environmental cases. See, e.g., Bellon, 732 F.3d at 1143 (“Thus, 

according to the unchallenged declaration of [intervenor’s] expert . . . .”); Massachusetts, 549 U.S. at 522 

(quoting declaration from a climate scientist); see also Barnum Timber Co. v. EPA, 835 F. Supp. 2d 773, 

778 (N.D. Cal. 2011) (relying on extra-record expert declarations to find standing). Therefore, the court 

finds that EPA’s motion to strike on that ground is not well-taken. 

Second, EPA complains that the declaration was included with CBD’s combined response and 

reply brief, rather than with CBD’s original motion for summary judgment. (See EPA Reply (Dkt. # 59).) 

A court should not consider new evidence submitted in a reply brief without giving the opposing party an 

opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). Based on the parties’ 

stipulated modified briefing schedule, however, the court is unconvinced that it is appropriate to view Dr. 

Hales’ declaration as submitted in a reply brief. The accompanying brief is a combined response to 

EPA’s cross motion for summary judgment, reply to EPA’s response to CBD’s motion for summary 

judgment, and response to the amicus briefs filed in support of EPA, which were filed after CBD’s 

original motion. (See Sched. Order.) The challenge to CBD’s standing was not raised until amicus briefs 

were filed. (See API Br.) More importantly, EPA had the opportunity to address Dr. Hales’ declaration 

in its own reply brief, which was due after CBD’s combined response and reply. (See id.) EPA chose not 

to address the evidence substantively, but rather moved to strike it. (See EPA Reply at 19.) Additionally, 

API, the only entity that has raised the issue of standing, has been granted a full opportunity to respond to 

the declaration. (See API Reply (Dkt. # 58-1).) API concedes that Dr. Hales’ declaration “generally 

states what has already been stated in the record.” (Id. at 7.) For these reasons, the court denies EPA’s 

motion to strike Dr. Hales’ declaration. 

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systems, management of local inputs and proactive mitigation measures can counteract 

the trend towards ocean acidification.”).) For example, pollution controls, improved 

onsite water treatment facilities, reduction of coastal erosion, and stormwater surge 

prevention can reduce residential and agricultural runoffs that contain nutrients and 

organic carbon pollutants. Kelly 2011 at 1036-37; Blue Ribbon Panel at 44-46. The 

Blue Ribbon Panel found: “Reducing inputs of nutrients and organic carbon from local 

sources will decrease acidity in Washington’s marine waters that are impacted by these 

local sources and thereby decrease the effects of ocean acidification on local marine 

species.” Blue Ribbon Panel at 43. After noting that it is important to “gather more data 

regarding the relative importance of local sources of acidifying pollutants,” the Blue 

Ribbon Panel cautioned: 

We should not put nutrient control efforts on hold while this scientific work 

is done, however. On the contrary, the Panel recommends that existing 

nutrient and organic carbon reduction programs be enhanced and

strengthened; these pollutants are already lowering dissolved oxygen levels 

and causing a variety of significant ecosystem impacts in some areas.

Id. at 44-46 (identifying, as an example mitigation tactic, a sewage treatment plant in 

South Puget Sound that “has been removing nitrogen for its effluent for several years, 

with significant benefits to [the inlet] where the plant’s discharge is located”). Similarly, 

emission limits on nearby sources of airborne pollutants can reduce nitrous and sulfur 

oxide deposition. Kelly 2011 at 1037. 

In addition to methods to reduce harmful inputs, on-site remediation options 

include coastal and riparian buffers, as well as wetland and seawater restoration, such as 

the addition of crushed shells to counter corrosive conditions. Kelly 2011 at 1037; Blue 

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Ribbon Panel at 56-57. With respect to estuarine restoration, Dr. Hales reports that 

restoration of marsh grasses and tidal ecosystems in Coos Bay, Oregon, has gradually 

increased the pH of the estuary, counter to the global trend. (Hales Decl. ¶ 12). As such, 

the “local drawdown of carbon by seaweeds and seagrasses holds some promise for local 

and short-term mitigation effects in Puget Sound and other areas of Washington State.” 

Feeley 2012 at 67.

Finally, CBD provides ample evidence regarding the negative effects that ocean 

acidification can visit on shellfish and other marine animals. See, e.g., Feeley 2012 at 57-

90 (discussing various taxonomic groups’ and ecosystems’ negative responses to ocean 

acidification conditions that influence biological processes); Blue Ribbon Panel at 17-23 

(summarizing the effects of carbonate reduction on small marine organisms and overall 

marine habitat response and concluding: “Acidification-driven changes in populations of 

keystone species could have strong domino effects on local ecosystems.”); Feeley 2010 at 

3. 

c. API’s arguments

API argues that CBD’s evidence is insufficient to show causation and 

redressability for two reasons, neither of which are persuasive. First, API contends that 

CBD has not shown standing because the relative contributions of global and regional 

anthropogenic sources to local ocean acidification remain unclear, and therefore it is 

uncertain that reductions by local mitigation techniques will be sufficient to ameliorate 

harm to shellfish and other marine animals. (API Br. at 17; API Reply at 7); see, e.g.,

Feeley 2012 at 9 (“These inputs and their relative importance will vary with space and 

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time, and some may not be appreciable drivers in all locations.”); Blue Ribbon Panel at 

45 (“[W]e know that nutrients and organic carbon exacerbate local ocean acidification 

but we do not yet know the specific magnitude of that impact. The relative contribution 

of local sources has not been quantified in Washington . . . .”). 

CBD, however, need not establish causation and redressability with “scientific 

certainty.” See Ecological Rights Found., 230 F.3d at 1152-53. The record establishes 

that local anthropogenic sources do have some acidifying effect on nearby coastal waters, 

and that acidified waters are harmful to marine animals. See, e.g., Feeley 2012 at 9-15; 

Blue Ribbon Panel at 17-23. The fact that research regarding the extent of those effects 

is ongoing is not fatal to CBD’s challenge. After all, CBD is not required to show that 

sources addressable under the Clean Water Act are the “sole source” of its members’ 

injuries, and it “need not eliminate any other contributing causes to establish its 

standing.” Barnum Timber Co., 633 F.3d at 901. Even if the effect of local sources is 

relatively small, the Supreme Court has made clear that it is an “erroneous assumption 

that a small incremental step, because it is incremental, can never be attacked in a federal 

judicial forum.” Massachusetts, 549 U.S. at 524. To the contrary: “That a first step 

might be tentative does not by itself support the notion that federal courts lack 

jurisdiction to determine whether that step conforms to law.” Id. This principle rings

especially true here, where CBD has put forth evidence that the waters of the Pacific 

Northwest are naturally poised near a tipping point, such that the even a small increment 

of acidity can have dramatic biological consequences. (See Hales Decl. ¶¶ 8, 11); Feeley 

2012 at xi; Blue Ribbon Panel at xii; Feeley 2010 at 18 (“The additional pH . . . 

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decreases associated with these anthropogenic stressors may cross critical thresholds for 

organisms living near the edge of their physiological tolerances and may thus appear as 

abrupt and major changes in the health of an ecosystem.”). As the Blue Ribbon Panel 

concluded: 

Washington’s shellfish industry and native ecosystems cannot rely on 

emissions reductions alone . . . . 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.

Blue Ribbon Panel at xvii. While it may be true that local mitigation will not reverse the 

global trend of ocean acidification, it by no means follows that the court lacks jurisdiction 

to address EPA’s decisions regarding steps to slow or mitigate it in local waters. See 

Massachusetts, 549 U.S. at 525. Because CBD’s evidence shows that local drivers of 

ocean acidification can have disproportionate and biologically significant effects on local 

Pacific Northwest waters, standing is established.

Second, API contends that CBD has not shown standing because CBD has not 

identified which specific local mitigation techniques are applicable to the beaches 

identified in its members’ declarations. (API Br. at 18; API Reply at 7.) CBD, however, 

has shown that a range of human causes contribute to ocean acidification in the coastal 

regions its members visit, which causes are significant in each region, and which 

mitigation or remediation techniques are applicable to each cause. For example, Puget 

Sound, and in particular shallow areas in south Puget Sound, suffers from high 

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anthropogenic nutrient loading, which can be addressed by various point source and nonpoint source pollution controls. Feeley 2012 at 12, 29, 33; Blue Ribbon Panel at 43-46; 

Kelly 2011 at 1036-37. CBD members regularly visit beaches and islands in Puget 

Sound, including Camano Island, Whidbey Island, Golden Gardens Park, and Richmond 

Beach. (Moritz Decl. ¶¶ 5-17; Easton Decl. ¶¶ 6-12.) Similarly, the Oregon and 

Washington coasts adjacent to the Columbia River estuary are affected by nutrients and 

particulates delivered by the Columbia River plume, which can also be addressed by a 

variety of point source and non-point source pollution controls. Feeley 2012 at 14, 15, 

19; Blue Ribbon Panel at 12, 14, 15, 29, 43; Kelly 2011 at 1036-37. CBD members 

regularly visit nearby beaches, including Gearhart, Canon Beach, Netarts Bay, and Hug 

Point in Oregon, and Willapa Bay, Washington. (Weitzer Decl. ¶¶ 6-15; Antoine Decl. 

¶¶ 7-17.) Smaller bays visited by CBD members, such as Willapa Bay, are similarly 

influenced by freshwater inputs, and are candidates for estuary restoration efforts. See 

Kelly 2011 at 1037; Blue Ribbon Panel at 29, 43, 56-57; Hales Decl. ¶ 12; Feeley 2012 at 

67; (Weitzer Decl. ¶¶ 6-15; Antoine Decl. ¶¶ 7-17.) Additionally, the effects of 

anthropogenic pollution and emissions are intensified in coastal areas near populated or 

developed areas. Feeley 2012 at 9, 13, 37; Feeley 2010 at 446. Almost all of the 

coastline segments identified by CBD’s members fit that bill, particularly the segments in 

Puget Sound. See Feeley 2012 at 95; (Easton Decl. ¶¶ 6-12; Moritz Decl. ¶¶ 5-17; 

Weitzer Decl. ¶¶ 6-15; Antoine Decl. ¶¶ 7-17.) 

By connecting local anthropogenic causes to the regions visited by its members 

and identifying potential local mitigation techniques, CBD has set forth “specific facts” 

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establishing a plausible connection between CBD’s members’ injuries and EPA’s 

decision to approve the states’ 303(d) lists without including acidification-impaired 

waters. See Lujan, 504 U.S. at 561; Defenders of Wildlife, 420 F.3d at 957 (finding 

standing where plaintiff’s members described general regions within the state where they 

engaged in activities related to endangered species and where commercial and residential 

development that depended on the challenged permitting decision was occurring). The 

connection is neither abstract nor hypothetical. Nat’l Audubon Soc., Inc., 307 F.3d at 

849; Ocean Advocates, F.3d at 860. Those same “specific facts” show that the 

connection between CBD’s members’ injuries and the requested relief—a designation of 

impaired coastal waters or a remand for EPA to reconsider the 303(d) lists—is likely 

rather than merely “speculative.” See Lujan, 504 U.S. at 561; Beno, 30 F.3d at 1065. 

Ninth Circuit precedent “require[s] no greater precision.” Defenders of Wildlife, 420 

F.3d at 957. 

This conclusion is bolstered by the EPA’s own guidance that “if a designated use 

is not supported and the segment is impaired or threatened, the fact that the specific 

pollutant is not known does not provide a basis for excluding the segment from being 

listed as impaired.” EPA OA Memo at 9 (“[I]f marine pH exceeds the State’s criterion, 

but the source-stressor is unknown (e.g., carbon deposition, nutrient enrichment, 

industrial discharge, natural background) then EPA expects the segment to be listed.”); 

see also WA-01170; 33 U.S.C. § 1313; Pronsolino, 291 F.3d at 1138 (“Water quality 

standards reflect a state’s designated uses for a water body and do not depend in any way 

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upon the source of pollution.”).

12

 After all, the purpose of the TMDLs triggered by a 

303(d) listing is to gather the information necessary to guide states’ implementation of 

remedial measures. Pronsolino, 291 F.3d at 112 (upholding EPA’s determination that 

TMDLs are required even for waters affected only by non-point sources); City of Arcadia 

v. U.S. Envtl. Prot. Agency, 411 F.3d 1103, 1105 (9th Cir. 2005). For that reason, the 

Ninth Circuit confirmed an environmental organization’s standing to challenge the EPA’s 

failure to establish TMDLs for Alaska’s listed waters notwithstanding the argument that 

the organization could not show that Alaska’s discretionary implementation of any

TMDLs would in fact improve water quality.13 Alaska Ctr. for Env’t v. Browner, 20 F.3d 

981, 984 (9th Cir. 1994). The Ninth Circuit ruled that the “argument is untenable, 

because Congress has determined that the relief plaintiffs seek is the appropriate means 

of achieving desired water quality.” Id. So, too, here. The relief CBD seeks—the listing 

of acidified-impaired waters—is the necessary forerunner to the establishment of TMDLs

or other water quality improvement techniques, and, according to Congress, the 

appropriate means of achieving desired water quality. See 33 U.S.C. § 1313; see also 

Florida Pub. Interest Research Grp. Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1085 

 

12 See also WA-001231 (EPA 2006 Listing Guidance) (“[I]f a designated use is not supported and 

the segment is impaired or threatened, the fact that the specific pollutant is not known does not provide a 

basis for excluding the segment . . . . The segments must be listed unless the state can demonstrate that 

no pollutant(s) causes or contributes to the impairment.”).

 

13 API argues that Alaska Center is inapposite because it concerned a challenge under the citizen 

suit provision of the Clean Water Act to enforce a mandatory duty, and therefore was subject to the 

lowered standing requirements applicable to procedural injuries. (API Reply at 8.) The Ninth Circuit 

opinion in Alaska Center, however, makes no mention of the lowered standing requirement, and instead 

applies the ordinary standing requirement as set forth in Lujan. See Alaska Ctr. for Env’t, 20 F.3d at 985. 

Therefore, the principles articulated in Alaska Center are relevant to CBD’s case. 

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(11th Cir. 2004) (finding causation and redressability because “the continued pollution of 

the state’s waterbodies . . . is fairly traceable to the EPA’s failure to review [Florida’s]

Impaired Waters Rule, since use of the Rule could result in polluted waterbodies being 

left off the Impaired Waters List and not being cleaned.”) For this reason, also, the court 

finds that CBD has shown causation and redressability. 

3. Summary

Because CBD has set forth “specific facts” establishing injury in fact, causation, 

and redressability, as well as the remaining prerequisites for organizational standing, 

CBD’s claims are properly before the court. See Bellon, 732 F.3d at 1139.

C. Merits

Having found standing, the court turns to the merits of CBD’s claims. CBD raises 

two arguments: (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. The court reviews both of these challenges under the arbitrary and capricious 

standard. 

1. Arbitrary and Capricious Standard

EPA’s decision to approve the 303(d) lists is reviewable under the Administrative 

Procedures Act (“APA”). 5 U.S.C. § 706(2)(A); Dioxin/Organochlorine Ctr. v. Clarke, 

57 F.3d 1517, 1521 (9th Cir. 1995); Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 

(1981). Specifically, the court must set aside EPA’s action if it was “arbitrary, 

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capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A). A decision is arbitrary and capricious within the meaning of the APA only if 

“the agency has relied on factors which Congress has not intended it to consider, entirely 

failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible that it 

could not be ascribed to a difference in view or the product of agency expertise.” 

Dioxin/Organochlorine Ctr., 57 F.3d at 1521; see also Motor Vehicle Mfr. Ass’n v. State 

Farm Ins., 463 U.S. 29, 44 (1983). The arbitrary and capricious standard is “highly 

deferential, presume[s] the agency action to be valid and requires affirming the agency 

action if a reasonable basis exists for its decision.” Kern Cnty. Farm Bureau v. Allen, 

450 F.3d 1072, 1076 (9th Cir. 2006) (internal punctuation omitted). The reviewing court 

may not substitute its judgment for that of the agency; rather, the agency’s decision must 

be affirmed if the agency has articulated a “rational connection between the facts found 

and the choice made.” Motor Vehicle Mfr. Ass’n, 463 U.S. at 44. The court’s deference 

to the agency’s judgment “is highest when reviewing an agency’s technical analyses and 

judgments involving the evaluation of complex scientific data within the agency’s 

technical expertise.” League Of Wilderness Defenders Blue Mountains Biodiversity 

Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010). 

2. Motions to Strike 

EPA has moved to strike various evidence introduced by CBD and amici Fishing 

Associations and the Scientists as improper extra-record evidence. (See 1st Mot. to 

Strike (Dkt. # 50); 2d Mot. to Strike (Dkt. # 51); EPA Reply at 19-20.) Judicial review 

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pursuant to the APA is based solely on the administrative record in existence at the time 

of the agency’s decision. 5 U.S.C. § 706; Camp v. Pitts, 411 U.S. 138, 142 (1973); 

Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986). There are, however, 

exceptions to this rule. Hintz, 800 F.2d at 828. Specifically, district courts are permitted 

to admit extra-record evidence “(1) if admission is necessary to determine whether the 

agency has considered all relevant factors and has explained its decision, (2) if the agency 

has relied on documents not in the record, (3) when supplementing the record is 

necessary to explain technical terms or complex subject matter, or (4) when plaintiffs 

make a showing of agency bad faith.” Lands Council v. Powell, 395 F.3d 1019, 1030 

(9th Cir. 2005) (citing Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 

1443, 1450 (9th Cir. 1996) (internal punctuation omitted); see also Asarco, Inc. v. U.S. 

Envtl. Prot. Agency, 616 F.2d 1153, 1160 (9th Cir. 1980) (“If the reviewing court finds it 

necessary to go outside the administrative record, it should consider evidence relevant to 

the substantive merits of the agency action only for background information . . . or for the 

limited purposes of ascertaining whether the agency fully explicated its course of conduct 

or grounds of decision.”). “Though widely accepted, these exceptions are narrowly 

construed and applied.” Lands Council, 395 F.3d at 1030. Moreover, regardless of these 

exceptions, “[p]arties may not use ‘post-decision information as a new rationalization 

either for sustaining or attacking the agency’s decision.’” Hintz, 800 F.2d at 829 (quoting

Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir. 1980)).

In their respective briefs, the Scientists cite to 13 and the Fishing Associations cite 

to 3 extra-record articles, studies, and websites that they contend fall under the exceptions 

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either for material necessary to explain technical terms and complex subject matter or for 

background material. (See generally Fishing Br. (Dkt. # 47); Scientists Br. (Dkt. # 43-1); 

Fishing Resp. (Dkt. # 54); Scientists Resp. (Dkt. # 53).) The court is grateful for the 

amici’s involvement in the case and willingness to educate the court on the topic of ocean 

acidification. Nonetheless, the court concludes that it must strike this evidence for the 

following reasons. 

First, to the extent the references explain the basic scientific concepts and 

consequences associated with ocean acidification, they are cumulative of the extensive 

administrative record already before the court. See Northcoast Envtl. Ctr. v. Glickman, 

136 F.3d 660, 665 (9th Cir. 1998) (upholding district court’s decision to “strike 

cumulative and unnecessary documents outside the administrative record”); (see, e.g., 

Scientists Br. at 1 n.2 (citing NOAA, PMEL Carbon Program, What is Ocean 

Acidification? to explain the basics of ocean acidification).)

Second, as amici concede, most of the references post-date EPA’s decisions to 

approve Washington’s and Oregon’s 303(d) lists in December 2012. See WA Approval; 

OR Approval; (Fishing Resp. at 9; Scientist Br. at 10 n.27; Mot. to Strike 1 at 5 n.4.) 

Although post-decision information may be admissible to the extent it can be “deemed a 

clarification or an explanation of the original information before the [a]gency,” the Ninth 

Circuit has made clear that parties may not use “post-decision information as a new 

rationalization either for sustaining or attacking the agency’s decision.” Ass’n of Pac.

Fisheries, 615 F.2d at 811-12; see also Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th 

Cir. 1977) (permitting extra-record evidence because it was “merely explanatory of the 

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original record” and “[n]o new rationalization of the [agency’s decision] was offered”). 

The Scientists, however, use the post-decision evidence not merely to explain 

information originally before EPA, but rather to advance a substantive rationale for 

overturning EPA’s decisions. (See, e.g., Scientists Br. at 18 (arguing that EPA should

have listed Willapa Bay as impaired because a 2013 article “conclusively linked” oyster 

deaths at a local hatchery to ocean acidification and a 2014 article stated that wild oysters 

in the bay were unable to reproduce successfully).)14

Precedent forecloses the Scientists’ arguments that EPA’s decisions should be 

reversed in light of the post-decision evidence cited in their briefs. See Sw. Ctr. for 

Biological Diversity, 100 F.3d at 1450-51 (upholding district court’s decision to strike 

extra-record reference that constituted post-decision information). Although scientific 

knowledge regarding ocean acidification has continued to evolve since the date of EPA’s 

decisions, those decisions must not be judged with hindsight. See Ass’n of Pac.

Fisheries, 615 F.2d at 811-12; Asarco, 616 F.2d at 1160 (“Consideration of [extra-record] 

evidence to determine the correctness or wisdom of the agency’s decision is not 

permitted.”). The referenced information is more appropriate for consideration by the 

states and EPA during the next update of the states’ 303(d) lists. See 33 U.S.C. 

§ 1313(d); 40 CFR § 130.7(d)(1) (requiring states to update their impaired waters lists 

 

14 (See also Scientists Resp. at 3 (stating that it is their “expert opinion” that “there is sufficient 

scientific evidence of the threats posed by ocean acidification to warrant the listing of coastal waters in 

the Pacific Northwest” and suggesting “that the court should consider the information they provided in 

determining whether EPA’s interpretation of the available evidence was reasonable”).

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every two years). Accordingly, the court strikes these references, as well as the text 

related to such references, from amici’s briefs.15 

CBD and the Fishing Associations also provide evidence of pH monitoring 

datasets for Washington waters that are not included in the administrative record. (See 

Fishing Br. at 8-12; CBD Resp. at 13, Attach. A.) Specifically, the Fishing Associations 

cite the Washington Department of Ecology’s own long-term marine monitoring data, 

which is published on Ecology’s website, and provide tables summarizing the pH data 

from various monitoring points in recent years. (Fishing Br. at 9-11; Append. A.) CBD 

relies on the same data and summaries. (See CBD Resp. at 13.) In addition, CBD cites to 

pH monitoring datasets from the United States Geological Survey (“USGS”), Storage 

Retrieval (“STORET”), and National Ocean and Atmospheric Administration (“NOAA”) 

 

15 Specifically, the court strikes the following references and related text: (1) Fisheries 

Economics of the US (2012) (FEUS 2012) (Pacific Report); (2) Washington Shellfish Initiative; (3) Craig 

Welch; Sea Change: Oysters dying as coast is hit hard, Seattle Times, September 11, 2013; (4) NOAA, 

PMEL Carbon Program, What is Ocean Acidification?; (5) International Geo-sphere Biosphere Program, 

Ocean Acidification, Summary for Policymakers, Third Symposium on Oceans in a High CO2 World, 

(2013); (6) Ocean Acidification in the Pacific Northwest (May 2014); (7) Hettinger, A., E., et al. 2013,

Larval carry-over effects from ocean acidification persist in the natural environment, Global Change 

Biology; (8) Evans et al., Transcriptomic responses to ocean acidification in larval sea urchins from a 

naturally variable pH environment, Molecular Ecology (2013); (9) Grossman, Elizabeth, Northwest 

Oyster Die-offs Show Ocean Acidification Has Arrived. Yale Environment 360 November 21, 2011; (10) 

Waldbusser et al., A developmental and energetic basis linking larval oyster shell formation to 

acidification sensitivity, Geophysical Research Letters Vol. 40, Issue 10, pages 2171-2176 (May 2013); 

(11) Phys. Org, Ocean acidification killing oysters by inhibiting shell formation, study finds (June 12, 

2013); (12) Kroecker et al., Impacts of ocean acidification on marine organisms: quantifying sensitivities 

and interaction with warming, Global Change Biology (2013); (13) Wittmann, A.C., Pörtner, H.-O., 

Sensitivities of extant animal taxa to ocean Acidification, Nature Climate Change (2013); (14) Doney, 

Scott, Oceans of Acid: How Fossil Fuels Could Destroy Marine Ecosystems, Nova Next (Feb. 2, 2014); 

(15) Memorandum from Denise Keehner, Director Office of Wetlands, Oceans, and Watersheds to Water 

Division Directors Regions I-10, Information Concerning 2014 Clean Water Act Sections 303(d), 305(b), 

and 314 Integrated Reporting and Listing Decisions (September 3, 2013); (16) Information Concerning 

2014 Clean Water Act Sections 303(d) (Sept. 3, 2013) (“EPA 2014 Guidance”). 

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databases, and provides tables and text summaries of pH data from recent years. (CBD 

Resp. at 13, n.16, n.17.) 

CBD and the Fishing Associations rely on this evidence to support their argument

that EPA’s failure to evaluate these datasets was arbitrary and capricious and in violation 

of EPA’s regulations. (CBD Resp. at 10-13; Fishing Br. at 9-10.) EPA does not dispute 

the authenticity of these databases. (Mot. to Strike 1 at 5.) Rather, EPA argues that 

admission of the data “presents an unnecessary risk of confusion.”16 (Id. at 6.) 

The court concludes that this evidence falls within the exception for evidence 

necessary to determine whether the agency has considered all relevant factors. 

See Lands Council, 395 F.3d at 1030. The Ninth Circuit has recognized that “[i]t will 

often be impossible, especially when highly technical matters are involved, for the court 

to determine whether the agency took into consideration all relevant factors unless it 

looks outside the record to determine what matters the agency should have considered but 

did not.” Asarco, Inc., 616 F.2d at 1160. Here, the court cannot evaluate CBD’s claim 

that EPA failed to evaluate monitoring data in violation of EPA’s regulations without 

knowing which data EPA allegedly failed to evaluate and whether that data is relevant to 

EPA’s decision to approve Washington’s 303(d) list. See, e.g., Sierra Club, Inc. v. 

Leavitt, 488 F.3d 904, 920 (11th Cir. 2007) (holding that documents showing that EPA’s 

 

16 To the extent that EPA argues that the evidence filed with CBD’s combined response and reply 

brief is untimely, the court is unpersuaded. EPA was provided a full and fair opportunity to address that 

evidence in its own reply brief, which it declined to do. (See Stip. (Dkt. # 26); EPA Reply.) Unlike the 

standard briefing schedule, in which the nonmovant has only one opportunity and a lesser number of 

pages to brief the issues, here both parties have stipulated to two opportunities and the same number of 

pages to address the issues. (See Sched. Order.) Because EPA had ample opportunity to respond to the 

evidence, the court denies EPA’s motion to strike the evidence as untimely.

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categorical failure to consider data older than 7.5 years led to impaired waters being 

excluded from Florida’s 303(d) list could be considered on remand “as extra-record 

material necessary to determine whether EPA considered all relevant factors in making 

its decision”). Therefore, this evidence is admissible for the purpose of determining 

whether EPA considered all relevant factors before approving Washington’s 303(d) list. 

See Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 760 n.5 (9th 

Cir. 1996) (“To the extent [the extra-record] declaration is submitted to show that the 

[agency] overlooked factors relevant to a proper population viability analysis, we will 

consider it.”). 

CBD and the Fishing Associations, however, go beyond that and also argue that 

these datasets show repeated violations of Washington’s numerical pH water quality 

standard that compel EPA to include numerous waters on Washington’s 303(d) list. 

(CBD Resp. at 13, n.16, n.17; Fishing Br. at 10-11.) Yet, courts that go outside the 

record must consider that evidence only for the “limited purpose” of ascertaining whether 

the agency considered all the relevant factors. Asarco, Inc., 616 F.2d at 1160. 

“Consideration of the evidence to determine the correctness or wisdom of the agency’s 

decision is not permitted.” Id. If a court determines that an agency’s course of inquiry 

was insufficient, the proper course is to “remand the matter to the agency for further 

consideration and not compensate for the agency’s dereliction by undertaking its own 

inquiry into the merits.” Id. (finding that district court “went too far” in considering 

extra-record evidence because the “technical testimony [that] was plainly elicited for the 

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purpose of determining the scientific merit of the EPA’s decision” necessarily “led the 

district court to substitute its judgment for that of the agency”). 

Accordingly, the court admits the extra-record dataset evidence only for the 

limited purpose of showing that additional pH data from Washington coastal and 

estuarine locations and relevant time periods were available to Washington and Oregon, 

and later to EPA, at the times of their respective decisions regarding the states’ impaired 

waters lists, and that this data may show violations of Washington’s water quality 

standards.17 The court does not consider CBD’s or the Fishing Associations’ substantive 

arguments regarding what listing conclusions the extra-record data would support or 

compel, if any. 

The court deals with EPA’s remaining motions to strike below, in the context of 

the arguments that the contested evidence supports. 

3. Evidence before the agency

CBD’s first argument is that the evidence before EPA at the time of EPA’s 

decision to approve Washington’s and Oregon’s 303(d) lists showed violations of 

Washington’s numerical pH standard, as well as violations of Washington’s and 

Oregon’s narrative standards regarding aquatic life. The court addresses each contention 

in turn below. 

 

17 The court considers this data, with one exception. The court strikes CBD’s reference to the 

“NANOOS” data (CBD Resp. at 10 n.17) because CBD cites only data from 2014 and earlier data is not 

publicly available. See Sw. Ctr. for Biological Diversity, 100 F.3d at 1450-51. As such, there is no 

indication before the court that “NANOOS” data for years prior to EPA’s approval of Washington’d and 

Oregon’s 2010 Section 303(d) lists exists. 

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a. Washington’s numerical pH standard

CBD’s argument regarding Washington’s numerical pH standard is founded on the 

Wootton study and accompanying data, which CBD submitted to Washington’s Ecology 

Department (“Ecology”) for review. WA-000731 (“Wootton 2008”); WA-000092-93. 

The Wootton study 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. See generally Wootton 2008; WA-000092-93. The 

data show a decline in pH that can be fitted to a linear trend with a rate of change of 

0.046 units per year, for an estimated total of 0.368 units over eight years.

18

 Wootton 

2008 at 18849; WA-000824-25 (Dr. Wootton’s comments on Washington’s 2010 draft 

assessment). The study concluded that the best-fit parameter for explaining the change 

was the contribution of atmospheric CO2. WA-000825; Wootton 2008 at 18850. CBD 

argues that, because the data show a decline in more than 0.2 units from 2000 to 2008

and the study attributes the decline to atmospheric carbon dioxide, EPA’s failure to list 

the Strait of Juan de Fuca or other adjacent Washington waters as impaired runs contrary

to the evidence. (CBD Mot. at 19-21; Kilduff Decl. (Dkt. # 57-2) (analyzing and 

explaining the raw Wootton data with graphs and tables and concluding that the pH of the 

tidepool fell steadily since 2000).19

 

18 CBD notes that the greatest deviation—from the lowest pH value in 2000 to the lowest pH 

value in 2008—was a total of 0.68 units. (Kilduff Decl. (Dkt. # 57-2) ¶¶ 7-8.) 

19 EPA moves to strike Dr. D. Patrick Kilduff’s declaration as improper extra-record evidence. 

(EPA Reply at 14.) The court finds that this declaration meets the exception for evidence “necessary to 

explain technical terms or complex subject matter.” Lands Council, 395 F.3d at 1030. Specifically, Dr. 

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Ecology evaluated the Wootton study and data and concluded that the data did not 

show impairment of Washington waters because (1) the study did not provide conclusive 

evidence that the pH change was due to human sources rather than natural inputs, (2) the 

monitoring site is located within the Makah Indian reservation and therefore outside 

Ecology’s regulatory authority, and (3) the characteristics of the single sampling location 

are unique and therefore the data could not be extrapolated to adjacent waters. WA000092-94 (Ecology assessment of CBD’s ocean acidification references); see also WA000067 (Ecology response to CBD’s comments); WA-000417 (Ecology response to 

CBD’s comments). In addition, Ecology now points out that Washington’s numerical pH 

standard refers to a change of 0.2 pH units per year, and, as such, the study’s evidenced 

change of 0.046 units per year does not violate the standard. (Ecology Br. at 12.) 

When reviewing Washington’s 303(d) list, EPA undertook an independent 

evaluation of the Wootton study and data and concluded that, “for a variety of reasons, 

including the unique sampling location in the study, information from [the Wootton] 

documents was insufficient to determine the attainment status of Washington’s marine 

pH criteria.” WA-000015 (EPA review of Ecology’s analysis of ocean acidification 

information). The court finds that Washington “offered a reasoned explanation for the 

//

 

Kilduff “used the Wootton_ 2009 Hydrolab Data Filtered.xls from the Administrative Record # WA000731 to generate the graphs and summary tables.” (Kilduff Decl. ¶ 4.) It should go without saying that 

the court is not capable of interpreting the raw data on its own. Without Dr. Kilduff’s explanation, the 

court would not have been able to evaluate the data as a basis for CBD’s challenge separate and distinct 

from the Wootton article. Because Dr. Kilduff’s declaration is merely explanatory of the original record 

before EPA, it is admissible. See Bunker Hill Co., 572 F.2d at 1292. 

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choices it made, and EPA was within the bounds of its judgment and expertise to approve 

it.” Vigil v. Leavitt, 381 F.3d 826, 838 (9th Cir. 2004). 

First, EPA, relying on the analysis of Cheryl Brown of EPA’s Pacific Coastal 

Ecology Branch in the Office of Research and Development, concluded that Wootton 

does not establish that the observed pH changes were human-caused. Specifically, 

Wootton’s model did not take into consideration natural processes, such as river 

discharge effects. WA-001338 (“Brown 2012”); WA-000015. Dr. Brown’s model, on 

the other hand, showed that the pH decline observed off Tatoosh Island could have been 

related to changes in river discharge, upwelling, and chlorophyll levels, and therefore 

reflected local, natural conditions rather than large-scale anthropogenic pH declines 

across ocean waters.20 See Brown 2012 at 8-15, 20-22; WA-000016. EPA has 

“discretion to rely on [its] own experts’ reasonable opinions to resolve a conflict between 

or among specialists,” even if the court finds a contrary view more persuasive. Greater 

Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1148 (9th Cir. 2010), as amended (Jan. 25, 

2011). The court will not second-guess EPA’s conclusions that the Wootton study does 

not conclusively establish that the observed pH changes were human-caused, and 

therefore does not show violations of Washington’s numerical pH standard.21 See Kern 

 

20 In addition, EPA relied on Feeley 2010, which concluded that the decline in pH at Tatoosh 

Island was “probably explained by a combination of factors, including enhanced upwelling of waters of 

the Washington coast resulting from changes in regional ocean circulation.” Feeley 2010 at 18; see also 

WA-00015.

21 CBD’s reliance on EPA’s guidance that states should list waters as violating designated uses 

even though the causative pollutant is unknown is misplaced. See EPA OA Memo at 9; WA-001231. 

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Cnty. Farm Bureau, 450 F.3d at 1076 (“[W]e may not substitute our judgment for that of 

the agency.”). 

Second, even if the Wootton study did prove violations of Washington’s numerical 

pH standard, EPA was justified in determining that the study’s results did not require 

listing adjacent waters, such as the Strait of Juan de Fuca. States do not have jurisdiction 

over tribal waters such as Tatoosh Island.22 See WA-001304-05. Dr. Brown concluded 

that the results from Tatoosh Island were not indicative of ocean trends in nearby waters 

because “[t]he oceanography in this region is influenced by numerous physical factors 

including complex bathymetry, upwelling . . . and the presence of large-scale eddies and 

multiple river plumes.” Brown 2012 at 2. EPA agreed with Ecology that these factors 

“make the Tatoosh Island sampling location highly unique,” and therefore 

 

That guidance is inapposite to numerical standards, such as Washington’s pH standard, that define only 

anthropogenic variances as excursions. 

The court has struck as improper post-decision evidence the Scientists’ references to and reliance 

on EPA’s 2014 Guidance regarding “natural conditions” provisions. See supra Section III.C.2; but see 

EPA 2014 Guidance (stating that EPA’s position on “natural conditions” provisions has remained 

unchanged since EPA’s 2006 and 2008 guidance letters, which are located in the administrative record at 

WA-1170 and WA-01149, respectively). If the court had not stricken this line of argument, the

Scientists’ reliance on EPA’s 2014 guidance regarding “natural conditions” provisions would be similarly 

misplaced. (See Scientists’ Brief at 4-5 (citing Information Concerning 2014 Clean Water Act Sections 

303(d) (Sept. 3, 2013) (“If the pollutant concentrations do not meet the EPA-approved water quality 

standards, and anthropogenic sources of the pollutant are present, the water is considered impaired and 

should be included on the State’s Section 303(d) list even if natural sources of the pollutant are 

present.”).) “Natural conditions” provisions permit standards to be adjusted to account for natural 

conditions that cause violations. See WAC 173-201A-260; (see also Ecology Br. at 7.) Washington, 

however, did not rely on its “natural conditions” provision to determine that the Strait of Juan de Fuca 

was not impaired. 

22 The record does not show that the Makah Tribe has requested that Washington list its waters. 

See WA-002138; WA-000181; WA-000208. Even if the Makah Tribe had so requested, EPA’s policy is 

to take no action to approve or disapprove state listings of tribal waters because the tribe or EPA, not the 

State, retains ultimate responsibility for those waters. WA-001304-05. 

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unrepresentative of other Pacific Northwest coastal waters. WA-000016. EPA 

concluded that, because ocean acidification in the Pacific Northwest is affected by a 

variety of location-specific natural and anthropogenic processes, those variables “make 

the extrapolation of this data across a large geographic range . . . difficult and 

inappropriate.” WA-000015. 

Because analysis of the Wootton data requires an evaluation of complex scientific 

data within EPA’s specialized technical expertise, EPA’s conclusion that the data cannot 

be extrapolated to show water quality violations in adjacent waters is entitled to great 

deference. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003). For 

these reasons, EPA’s approval of Washington’s 303(d) list that did not include waters 

based on the Wootton study was not arbitrary and capricious.

b. Washington’s and Oregon’s narrative standards 

CBD maintains that EPA’s conclusion that the administrative record does not 

demonstrate impaired health of wild Pacific Northwest shellfish populations due to ocean 

acidification is counter to the evidence and without a substantial basis in fact. (CBD 

Mot. at 19.) CBD’s challenge is based on several categories of evidence: observations of 

shellfish decline; laboratory studies; hatchery studies; and data regarding aragonite 

saturation. (See CBD Mot.) 

For its part, EPA contends that a finding of impairment is unwarranted because (1) 

the record lacks in situ field studies or other documentation showing adverse effects on 

indigenous aquatic life populations in either state attributable to stressors caused by ocean 

acidification, and (2) the other evidence relied on by CBD in place of such studies is 

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inconclusive and therefore insufficient to show impairment of the states’ designated 

aquatic life uses. (EPA Mot. at 24). 

In approving the states’ 303(d) lists, EPA reviewed the states’ analyses of the 

ocean acidification data and information, including the information submitted by CBD, 

and explained why the information was inadequate to show non-attainment of narrative 

standards. See WA-000001 (EPA approval letter); WA-000011-20 (EPA review of 

Ecology’s analysis of ocean acidification data) (“No data or information was presented 

demonstrating impaired health of wild, natural populations in Washington waters, 

therefore an impairment determination for the aquatic life designated uses cannot be 

made at this time.”); WA-000021-65 (EPA review of ocean acidification references); 

WA-000066-70 (Ecology’s response to CBD’s ocean acidification comments) (“[N]one 

of the studies provided conclusive evidence that aquatic uses in the natural environment 

were being threatened or impaired by environmental alterations related to ocean 

acidification.”); OR2-000286-91 (EPA evaluation of Oregon’s ocean acidification 

information); OR2-000275 (EPA’s response to Oregon ocean acidification comments). 

The court finds that EPA has articulated a reasonable basis for its decision and therefore 

must be affirmed. See Kern Cnty. Farm Bureau, 450 F.3d at 1076. The court addresses 

each category of CBD’s evidence in turn below. 

i. Observations

CBD’s evidence regarding observations of declining wild shellfish populations in

the Pacific Northwest is scant. The New Yorker article that CBD relies on for its 

assertion that “ocean acidification puts ‘a whole category of organisms that have been 

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around for hundreds of millions of years . . . at risk of extinction,’” makes no mention of 

shellfish in Washington or Oregon coastal waters and provides only a narrative summary 

of ocean acidification research, rather than any original analysis or data regarding 

shellfish populations. WA-000731 (“Kolbert 2006”). Beyond that, CBD supports its 

assertion that the oyster population in Willapa Bay, Washington has “crashed” with 

citations to the reports by the Blue Ribbon Panel and the Southern California Coastal 

Water Research Project (“SCCWRP”). (CBD Mot. at 19-20.) These reports contain only 

short, conclusory assertions about the declining presence of oysters in Willapa Bay that 

are unsubstantiated by any data or studies. See Blue Ribbon Panel at 3; WA-000731 

(“SCCWRP”) at B-5. Moreover, these reports lack any explanation of possible reasons 

for the decline. See SCCWRP at B-5 (“[T]here have been other periods of 4 to 6 years 

where sets of wild oysters have been poor. It is unknown if the present declines in wild 

sets will end, as other periods have, or if the declines will continue.”) EPA’s 

determination that these unsupported statements were inconclusive regarding the nonattainment of narrative standards attributable to ocean acidification is reasonable. See 

Kern Cnty. Farm Bureau, 450 F.3d at 1076. 

CBD also cites to the Wootton study, which documented transitions among 

species near Tatoosh Island and created a model to predict changes in the populations of 

California mussels, blue mussels, and goose barnacles as a function of mean annual pH. 

(See CBD Mot. at 19); Wootton at 18849, 18859. EPA concluded that, for the same 

reasons as discussed above in Section III.C.3.a, “it would also be inappropriate to 

extrapolate the biology data collected near Tatoosh Island from the Makah waters to 

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waters of the State, based on the unique environment of the sampling location.” WA000016 (“The sampling location in the Wootton . . . study is highly unique and there is 

not sufficient information to determine if it is representative of conditions in 

Washington’s state waters. . . . Further information would be needed on the condition of 

organisms in State waters in order to determine whether there is an aquatic life use 

impairment.”). As discussed above in Section III.C.3.a, EPA’s decision not to 

extrapolate the Wootton data to other waters was reasonable. See Kern Cnty. Farm 

Bureau, 450 F.3d at 1076. 

ii. Laboratory studies 

CBD also relies on laboratory studies that correlate ocean acidification conditions, 

such as pH and CO2 levels and aragonite saturation, with adverse impacts on shellfish. 

(CBD Mot. at 15, 21-23).23 CBD contends that because some waters along the Pacific 

Northwest coast have experienced CO2 and aragonite saturation levels within the range of 

levels that the studies show can be harmful to shellfish,24 EPA is required to list those 

 

23 See CBD Mot. at 15, 22 (citing WA-000731 (“Crim 2011”) at 272 (studying the effects of 

various CO2 concentrations on abalone larvae); id. (“Hettinger 2012”) at 30 (studying the effects of pH 

levels on oyster development); id. (“Gaylord 2011”) at 2586 (studying the effects of elevated CO2 levels 

on the shell strength of California mussels); id. (“Talmage 2009”) (studying the effects of elevated CO2

concentrations on larval hard clams); id. (“Abbasi 2011”) (studying the effects of aragonite saturation 

state on coral and plankton calcification); id. (“Doney 2011”) (same); id. (“NRC 2010”) (studying the 

effects of aragonite undersaturation on coral and pteropods). 

24 (See, e.g., CBD Mot. at 20, 22 (citing Feeley 2008 (finding seasonal upwelled seawater 

undersaturated with respect to aragonite up to 80 meters below the surface along the Pacific Northwest 

continental shelf in the summer of 2007); Feeley 2010 (finding that areas in Puget Sound in February 

2008 were undersaturated with respect to aragonite to varying extents and depths); Feeley 2012 

(discussing unpublished data regarding CO2 values in upwelled water along the Washington and Oregon 

coasts); Juranek 2012 (calculating aragonite saturation on the Oregon continental shelf near Newport, 

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waters. (Id. at 20, 22.) 

EPA, however, found that the laboratory studies did not reflect natural conditions, 

and therefore could not be extrapolated to show harm to wild populations. See WA000016-17; OR2-000287-89 (“These particular lab-based studies alone are not sufficient 

to determine whether [water quality standards] are being met in State waters because 

water quality parameters are manipulated and therefore, may not represent the actual 

condition in the water body.”). Specifically, EPA found that the laboratory experiments 

suffered from a “reduced ecological complexity,” and therefore “did not provide evidence 

of the condition of natural assemblages of organisms in State Waters.” WA-000016-17

(citing WA-000731 (“Honish 2012”) (finding that the predictive ability of laboratory 

studies is limited)); OR2-000288 (same).25 EPA also found that the studies “do not 

provide sufficient information to account for the potential adaptation and acclimation of 

wild assemblages, so it would not be appropriate to apply those findings to an attainment 

decision in natural waterbodies.” WA-000017; see also OR2-000289. Moreover, the 

authors of the articles themselves had recognized some of these concerns. See OR2-

000287; WA-000019; see, e.g., Juranek 2012 (stating, after calculating aragonite saturate

states in Oregon waters, that it is “unclear how organisms on the central Oregon coast are 

directly affected by these conditions”); Feeley 2010 (“[F]ield data on the impacts of CO2

 

Oregon, and finding persistence of water with a low aragonite saturation state during the upwelling season 

from May through November 2007).) 

25 See also, e.g., Talmage 2009 (describing the experiment setup: “[T]he CO2 gas mixtures from 

the proportionator system were continuously delivered to the bottom of four replicated, polypropylene 1-

liter beakers containing 0.2-mm filtered seawater from eastern Shinnecock Bay, New York.. . . . For each 

experiment, approximately 100 larvae were distributed to each experimental beaker.”) 

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on the local marine ecosystems of Puget Sound do not exist.”). EPA also noted that 

“there are no clear chemical thresholds at which dissolved carbon dioxide becomes 

deleterious to natural marine populations.” OR2-000289. 

EPA concluded: “[A]ll of these variables make the extrapolation of 

data/information from the laboratory . . . studies submitted by CBD, for the purposes of 

determining non-attainment of water quality standards, difficult and inappropriate in 

these circumstances. More information is needed on the biological condition within the 

waterbody (e.g., in situ field studies documenting the health of aquatic life populations) 

or laboratory studies that are designed to account for natural variability and ecological 

complexity within a particular system.” OR2-000288; see also WA-000017 (“No data or 

information was presented demonstrating impaired health of wild, natural populations in 

Washington waters, therefore an impairment determination for the aquatic life uses 

cannot be made at this time.”) Because EPA has articulated a “rational connection 

between the facts found and the choice made,” its decision must be affirmed. Motor 

Vehicle Mfr. Ass’n, 463 U.S. at 44. 

iii. Hatcheries

CBD argues that EPA improperly disregarded evidence that Oregon and 

Washington shellfish hatcheries, namely Whiskey Creek Hatchery on Netarts Bay, 

Oregon, and Taylor Shellfish Hatchery on Dabob Bay, Washington, experienced multiyear oyster die-offs beginning in 2005 and 2006, respectively. (CBD Mot. at 21 (citing 

Blue Ribbon Panel at 700-701).) CBD relies specifically on the Barton study of Whiskey 

Creek Hatchery, which draws seawater for oyster rearing directly from Netarts Bay, 

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Oregon. OR2-01521 (“Barton 2012”) at 70-71. The Barton study found that larval 

production and growth at Whiskey Creek Hatchery was negatively correlated with the 

aragonite saturation state of the bay water in which the oysters were spawned and reared 

for the first 48 hours of life. See Barton 2012 at 705; Feeley 2012 at 71. 

To begin, the court finds that EPA rationally determined that the Barton study, 

which considered only circumstances specific to Netarts Bay, could not be extrapolated 

to require listing of distant or dissimilar Washington and Oregon waters. EPA found that 

the natural variability of surface ocean carbonate chemistry influences how ocean 

acidification impacts shellfish from region to region, and that Netarts Bay therefore could 

not serve as a proxy for other coastal waters. See OR2-000287-88 (citing Freidrich 

2012); Barton 2012 at 699-700, 703 (describing the two majors forcing driving Netarts 

Bay’s carbon chemistry fluctuations: upwelling and metabolic variability). EPA 

identified differences between Netarts Bay and other Pacific Northwest waters and 

concluded: “All of these variables make the extrapolation of data across a large 

geographical range for the purposes of determining non-attainment of water quality 

standards in local water bodies difficult and inappropriate in these circumstances.” OR2-

000287. As EPA noted, the Barton study cautioned that “two significant shortcomings 

exist with regard to understanding acidification effects on natural populations of 

organisms in variable coastal and estuarine habitats: prediction of how carbonate 

conditions will vary in coastal and estuarine environments with increasing atmospheric 

CO2 and a better understanding of the fundamental biology underlying the responses of 

multicellular organisms to acidification.” Barton 2012 at 709; see OR2-000287; ORCase 2:13-cv-01866-JLR Document 69 Filed 03/02/15 Page 49 of 70
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000275. In light of these reasons, the court finds that EPA’s decision that the 

circumstances observed at Netarts Bay, Oregon, did not requiring listing other Pacific 

Northwest waters was neither arbitrary nor capricious. See Kern Cnty. Farm Bureau, 450 

F.3d at 1076.

 A closer question is whether it was arbitrary and capricious for EPA to approve 

Oregon’s 303(d) list that did not include Netarts Bay as impaired. To begin, EPA’s 

contention that Oregon’s narrative standards were not violated because the seawater 

measured in Netarts Bay did not violate Oregon’s numerical pH standard (EPA Mot. at 

21) is misguided. The Supreme Court has made clear that waters are impaired if they fail 

to meet either narrative standards or numerical criteria. PUD No. 1 of Jefferson Cnty. v. 

Washington Dep't of Ecology, 511 U.S. 700, 715-16 (1994). 

Nonetheless, the court concludes that, taking into account the deference due to 

EPA’s technical expertise, EPA has articulated a “satisfactory explanation” for its 

conclusion that the hatchery shellfish die-offs did not require listing Netarts Bay as 

impaired. See Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010); 

League Of Wilderness Defenders Blue Mountains Biodiversity Project, 615 F.3d at 1130. 

EPA based its decision on the fact that the Barton study did not present any data or 

information “demonstrating impaired health of wild, natural populations in Oregon 

waters.” OR-000289. CBD maintains that EPA’s focus on “wild” and “natural” 

populations was improper because the Oregon water quality standards do not explicitly 

contain such restrictions. (CBD Mot. at 22-23.) Rather, the Oregon water quality 

standards require that “[w]aters of the state must be of sufficient quality to support 

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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). The court finds that 

in the absence of a statutory definition of “resident biological communities” or similar 

guidance from the State of Oregon, EPA’s interpretation of the standards is not arbitrary 

and capricious. The mere fact that the Whiskey Creek oysters are grown in tanks filled 

with water drawn from Netarts Bay does not make them “residents” of the Bay in the 

ordinary sense of the word. See Barton 2012 at 700 (explaining Whiskey Creek 

Hatchery’s process of raising oysters in tanks). 

Beyond that, EPA shows a rational connection between the evidence available at 

the time of the listing decision and its conclusion that the Barton study does not show 

deleterious effects on wild shellfish populations. See Motor Vehicle Mfr. Ass’n, 463 U.S. 

at 44. The study observed a correlation between saturation state and oyster growth, but at 

least according to the record before EPA at the time of the listing decision, it remained 

unclear whether saturation state was responsible for the large-scale die-offs at the 

hatchery. See SCCWRP at 10 (calling for further study because “[i]n addition to changes 

in carbon chemistry . . . high concentrations of the bacterial pathogen Vibrio tubaiashii, 

lower oxygen concentrations, and higher concentrations of various other chemical species 

are associated with upwelled water masses and have not been ruled out as contributors to 

the observed hatchery failures”). EPA also found that because “hatchery operators 

operate with tendencies that may obscure the relationship between water chemistry and 

recruitment,” there was a need to establish improved linkages between hatchery and 

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oceanographic data before hatchery studies could reliably be extrapolated to natural 

populations. OR2-000288 (quoting SCCWRP at 10). Particularly, due to selective 

breeding programs, hatchery oysters can be genetically different from wild oysters, with 

potentially reduced fitness and diversity. Feeley 2012 at 90; OR2-000289 (finding that 

laboratory studies “do not provide sufficient information to account for the potential 

adaptation and acclimation of wild assemblages”). In addition, hatchery oysters 

necessarily face different living conditions than wild oysters, although the parties dispute 

whether the conditions are more or less optimal. (See CBD Resp. at 9 (stating, without 

citing any supporting evidence, that “oysters living in the wild would fare much worse” 

than hatchery oysters in response to ocean acidification); EPA Reply at 16); Barton 2012 

at 706-707 (discussing how hatchery conditions vary from natural conditions). 

In conclusion, although the court shares CBD’s concerns regarding the conditions 

in Netarts Bay, Oregon, the court may not substitute its judgment for that of the agency. 

See Kern Cnty. Farm Bureau, 450 F.3d at 1076. EPA’s decision does not run contrary to 

the evidence, as EPA has cited multiple peer-reviewed scientific sources to justify its 

decision. See Dioxin/Organochlorine Ctr., 57 F.3d at 1521. Moreover, EPA’s position is 

not so implausible that cannot be ascribed to the product of agency expertise or a 

difference in view. Id. As such, EPA’s decision stands. See Barnum Timber Co. v. 

EPA, 835 F. Supp. 2d 773, 782 (N.D. Cal. 2011). 

iv. Aragonite saturation

CBD contends that EPA entirely ignored the aspect of aragonite saturation. See

CBD Mot. at 23-24.) This contention is not well taken. The record shows that EPA 

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reviewed all of the articles and studies regarding aragonite undersaturation named in 

CBD’s motion. See OA-000292 (list of ocean acidification references EPA reviewed and 

EPA’s comments as to why each study is or is not relevant to Oregon’s water quality 

standards); ); WA-0000021 (list of ocean acidification references that EPA reviewed and 

EPA’s comments as to why each study is or is not relevant to Washington’s water quality 

standards). EPA then explained the deficiencies of the laboratory studies concerning 

ocean acidification. See OR-000286 (EPA’s summary of its evaluation of Oregon’s 

ocean acidification information); WA-000011 (EPA’s review of Ecology’s review of 

Washington’s ocean acidification information). The mere fact that the EPA’s summary

did not call out the aragonite studies by name is insufficient to show that EPA ignored the 

studies. 

EPA correctly notes that Washington and Oregon have established no numerical 

criteria for aragonite saturation, and the fact that coastal waters are undersaturated for 

aragonite is not alone a basis for listing the waters as impaired under the states’ narrative 

criteria. Rather, under both Washington and Oregon’s narrative criteria, there must be 

some link between aragonite saturation and effects on aquatic life or uses. See WAC 

173-201A-612, -210(1)(a), -260(2)(a);-310.; OAR 340-041-0220, -0011; OAR 340-041-

0007(10), -0004(6). For this link, CBD relies entirely on the laboratory studies discussed 

above in Section III.C.3.b.ii. However, as explained above, EPA had a reasonable basis 

for determining that the laboratory studies did not establish impairment of aquatic life 

water quality standards. Therefore, EPA’s conclusion that CBD’s aragonite evidence did

not require listing of Washington’s or Oregon’s coastal waters was not arbitrary or 

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capricious. 

v. Summary

The amici Scientists contend that EPA improperly focused on the deficiencies of 

each piece of evidence in isolation and therefore failed to recognize the cumulative 

import of the evidence. (Scientists Br. at 20.) As discussed above, however, EPA’s 

scientific assessment of the applicability of each category of evidence to the problem at 

hand, was not implausible or contrary to the evidence. Those assessments remain valid 

whether viewed together or in isolation, because no category of evidence solves the 

problems identified with the other categories of evidence. In this context, the whole is 

not greater than the sum of its parts. 

Moreover, the Scientists cannot avoid the fact that the record evinces no 

documentation of adverse effects on wild aquatic life populations in Washington or 

Oregon attributable to ocean acidification. See WA-000011-20; OR2-000286-91. 

The science surrounding ocean acidification and its causes and effects is complicated and 

still-developing. “‘[I]n an area characterized by scientific and technological uncertainty

. . . this court must proceed with particular caution, avoiding all temptation to direct the 

agency in a choice between rational alternatives.’” Ctr. for Biological Diversity v. EPA, 

749 F.3d 1079, 1088 (D.C. Cir. 2014) (quoting Envtl. Def. Fund, Inc. v. Costle, 578 F.2d 

337, 339 (D.C. Cir. 1978) (alterations in original).) Accordingly, this court will not 

second guess EPA’s decision to require more conclusive evidence before identifying 

coastal waters as acidified-impaired. See Kern Cnty. Farm Bureau, 450 F.3d at 1076; 

League Of Wilderness Defenders Blue Mountains Biodiversity Project, 615 F.3d at 1130. 

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For all of these reasons, the court finds that EPA’s approval of Washington’s and 

Oregon’s impaired waters lists was neither implausible nor contrary to the evidence. 

4. Existing and readily available water quality data

CBD’s second argument, echoed by the Fishing Associations is that Washington 

and Oregon improperly ignored certain marine pH data, and therefore EPA’s approval of 

Washington’s and Oregon’s lists without independently evaluating data from these 

sources was arbitrary and capricious. (CBD Mot. at 29-34; Fishing Mot. at 13-18.) 

EPA’s regulations require that “[e]ach State shall assemble and evaluate all existing and 

readily available water quality-related data and information to develop the [Section 

303(d)] list.” 40 CFR 130.7(b)(5). If a state decides not to rely on certain existing and 

readily available data or information, the state must provide EPA with documentation 

explaining the rationale for that decision. 40 CFR 130.7(b)(6).26 If a state fails to 

assemble and evaluate all existing and readily available data, EPA may not approve the 

state’s 303(d) list until EPA undertakes its own evaluation of the overlooked data. 40 

CFR 130.7(d)(2); see also OR Disapproval (partially disapproving Oregon’s 2010 303(d) 

list for failure to evaluate certain water quality data); OR Approval (identifying impaired 

waters from the overlooked water quality data). 

 

26 Each state must also provide EPA documentation showing (1) a description of the methodology 

used to develop its 303(d) list, (2) a description of the data and information used to identify listed waters, 

and (3) any other reasonable information requested by EPA. 40 CFR 130.7(b)(6). As such, there is no 

requirement for the state to provide EPA data that the state did not rely on in creating its 303(d) list, 

unless EPA requests such data for an independent evaluation. See WA-0001202, -1208 (“EPA 2006 

Guidance”) (“EPA will generally limit its review of a state listing submission to the data and information 

assembled by the state . . . if the state was reasonably diligent in assembling available data and 

information and soliciting data and information from the public.”). 

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EPA concluded that Washington and Oregon complied with all statutory and 

regulatory requirements in deciding that their state waters did not exhibit impairments 

associated with ocean acidification. See WA Approval; OR Approval. CBD and the 

Fishing Associations, however, identify four data sources that they contend the states 

improperly ignored, namely, Ecology’s own long-term marine monitoring database, the 

USGS database, the STORET database, and the NOAA database. (See generally CBD 

Mot.; Fishing Mot.) The court addresses each state’s decision in turn below. 

a. Oregon’s list

The Oregon administrative record contains a spreadsheet of pH data that Oregon 

considered when making its listing decision. See OR2-000480. CBD and the Fishing 

Associations have identified no additional pH monitoring datasets from Oregon waters. 

(See generally CBD Mot.; CBD Resp.; Fishing Mot.) And they have provided no 

explanation as to why monitoring datasets from Washington’s coastal waters would be 

relevant to Oregon’s listing decision. As such, the court has no basis on which to judge 

CBD’s challenge to EPA’s approval of Oregon’s 303(d) list for failure to consider all 

existing and readily available water quality data. Therefore, CBD’s challenge with 

respect to Oregon’s 303(d) list fails. 

b. Washington’s list

The Washington administrative record does not contain any marine pH data that 

Washington considered when making its listing decision. See generally Administrative 

Record. CBD and the Fishing Associations claim that Ecology improperly failed to 

consider two types of potentially relevant marine pH data: (1) data collected by Ecology, 

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and (2) data collected by various other federal agencies. The court addresses each type 

of data below. 

i. Ecology’s long-term marine monitoring data

Ecology’s long-term marine water quality monitoring database stores pH 

measurements taken at numerous sampling locations in Puget Sound and other coastal 

estuaries from 1989 to the present. See Department of Ecology, Long-term marine water 

quality data, Marine Water Monitoring, 

http://www.ecy.wa.gov/apps/eap/marinewq/mwdataset.asp (last visited February 3, 

2015). CBD and the Fishing Associations present evidence suggesting that these 

measurements show repeated water quality violations of Washington’s numerical pH 

standard in Puget Sound, Gray’s Harbor, and Willapa Bay. (Fishing Br. at 10-11, App. 

A; CBD Resp. at 13.) 

CBD requested that Ecology consider this data in CBD’s 2011 comments on 

Ecology’s draft 2010 assessment of Washington’s marine waters. WA-000813. Ecology, 

however, concluded that the data was unreliable because it was prone to large, 

unquantifiable measurement errors. See WA-000069 (Ecology response to CBD’s ocean 

acidification comments). Therefore, Ecology declined to rely on the data to make listing 

decisions. See id. 

In addition, Ecology found that without the long-term monitoring data, there was 

otherwise insufficient data from the sampling locations to meet the minimum 

requirements of Washington’s Water Quality Policy. See WA-000097 (Ecology’s Water 

Quality Assessment spreadsheet (“WQA”), located in the record at 65684-2010WQACase 2:13-cv-01866-JLR Document 69 Filed 03/02/15 Page 57 of 70
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ALL(rev1).xls) (identifying water segments, including Willapa Bay, Hood Canal, Grays 

Harbor, Admiralty Inlet, Port Townsend, and Oakland Bay, by sampling location number

and concluding: “There is insufficient data to meet minimum requirements . . . .”).27 

Accordingly, Ecology was unable to make a listing decision regarding those water 

segments. See id. (changing sampling locations to Category 3: water segments lacking 

sufficient data for an attainment decision). For each segment Ecology explained: “This 

listing is being moved . . . to Category 3 because questions have been raised about the 

accuracy of the pH measurements. Ecology will focus efforts on pH in current Puget 

Sound studies and monitoring to ensure that pH measurements measured in the marine 

environment are reliable, and will focus on technical issues regarding collection of 

marine pH data.” See, e.g., id. (changing Oakland Bay (sampling location OAK004) and 

Port Townsend (sampling location PTH005) to Category 3); see also WA-001363-64.

When reviewing Washington’s 303(d) list, EPA requested additional 

documentation showing that Ecology considered all existing and readily available pH 

data and information. See WA-000095-96. In response, Ecology explained its decision 

not to rely on the long-term marine monitoring data as follows: 

The Ecology marine monitoring unit conducted an assessment of pH data 

collected via electrode probe, performing comparative analyses during the 

same 2008 research voyage where NOAA scientists (Drs. Feeley & Alin) 

collected measurements of DIC [dissolved organic carbon] and total 

alkalinity to calculate pH changes in Puget Sound waters. Based on the 

 

27 Ecology’s spreadsheet that identifies and discusses the data it considered for each water 

segment and each pollutant references pH data from all of the long-term monitoring sampling locations 

identified in the Fishing Association’s brief. (Compare WQA with Fishing Br. at 10-11, App. A.) For 

brevity’s sake, the court identifies only a few representative sampling locations in this order. 

Nonetheless, the court’s conclusions apply with equal force to all sampling locations. 

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results of these comparative surveys and communicat[ions] by Dr. Feely to 

Ecology’s marine monitoring unit, the data generated by electrode pH 

probe could be subject to large (+/- 0.5 pH units), non-quantifiable errors 

and are inadequate to assess changes in pH due to anthropogenic 

contribution. Based on this, a decision was made that the pH data does not 

represent credible data in accordance with Water Quality Policy 1-12 and 

should not be used for the Water Quality Assessment purposes. 

WA-000153. Overall, EPA “conclude[d] that the [s]tate properly assembled and 

reasonably evaluated all existing and readily available data and information,” and 

that the state also properly “provided to the EPA its rationale for not relying on 

particular existing and readily available water quality-related data and information 

as a basis for listing waters.” WA-000006 (EPA’s review of Washington’s 2010 

303(d) list). Moreover, EPA specifically reviewed Ecology’s rationale for not 

relying on the long-term monitoring data and decided: “Ecology cited 

communication from Dr. Feeley of NOAA, which validated its decision not to use 

some existing data sets for Puget Sound for impairment decisions due to the large, 

non-quantifiable error the pH probes used to collect the Puget Sound data are 

subject to. The EPA finds Ecology’s conclusion that some existing data were not 

valid for making impairment decisions to be reasonable.” WA-000017. 

The court agrees that Washington “offered a reasoned explanation for the choices 

it made, and EPA was within the bounds of its judgment and expertise to approve it.” 

See Vigil, 381 F.3d at 838. Ecology evaluated the long-term monitoring data by 

comparing the pH measurements of Ecology’s electrode probes with concurrent pH 

calculations taken by NOAA researchers in Puget Sound, and concluded that the probe 

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measurements were prone to substantial,28non-quantifiable errors that rendered them 

unreliable for assessing water quality attainment. WA-000069. Ecology then 

communicated its rationale for not relying on the electrode probe data to EPA. WA000153. EPA considered the rationale and deemed it reasonable. WA-000017. The 

plain language of EPA’s regulations requires nothing more. See 40 CFR 130.7(b)(5), (6).

CBD contends that Ecology’s explanation insufficiently describes how Ecology 

evaluated the data before excluding it. (CBD Resp. at 12.). There is, however, no 

requirement that a state forward to EPA all evidence it considered regarding a body of 

water. Barnum Timber Co. v. EPA, 835 F. Supp. 2d 773, 782 (N.D. Cal. 2011). Rather, a 

state must only send a “description of the data” used to identify waters and a “rationale” 

for any decision not to rely on readily available data. Id.; see also 40 CFR 130.7(b)(5), 

(6). Although EPA would have been within its rights to request additional information 

regarding the methodology of Ecology’s comparative analysis, the court declines to find 

that EPA’s regulations required it to do so. See 40 CFR 130.7(b)(6); EPA 2006 Guidance 

at 37; see also Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (holding that 

agencies’ interpretations of their own regulations are entitled to deference). 

Ecology’s explanation adequately sets forth its basis for excluding the data, 

namely: a comparative survey of other pH measurements that revealed large errors in its 

probes’ data and communications with NOAA scientists regarding the errors. WA000153. There is no indication—in the administrative record or otherwise—that 

 

28 Because pH is measured on a logarithmic scale from 0 to 14, each one-unit change corresponds 

to a ten-fold change in acidity. See, e.g., Feeley 2010 at 4. 

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Ecology’s methodology was flawed, perfunctory, or otherwise inadequate. Moreover, 

Ecology applied its Water Quality Policy neutrally to the long-term monitoring pH data: 

Ecology changed water segments to Category 3 regardless of their current status of 

attainment, non-attainment, or waters of concern, and applied the change to segments that 

exhibited either, or both, low and high pH excursions. See, e.g., WQA (discussing 

sampling locations at Port Townsend (PTH005), Gray’s Harbor (GYS004), Oakland Bay 

(OAK004), and Budd Inlet (BUD005)). Finally, EPA’s decision to accept Ecology’s 

rationale was informed by its technical expertise and experience in a complex scientific 

area and, as such, is entitled to great deference. See Envtl. Def. Ctr., Inc., 344 F.3d at 

869; League Of Wilderness Defenders Blue Mountains Biodiversity Project, 615 F.3d at 

1130. For these reasons, the court concludes that it was not arbitrary and capricious for 

EPA to determine that Ecology’s rationale, even without further clarification, was 

reasonable. 

Sierra Club v. Leavitt does not suggest otherwise. See 488 F.3d at 912. In Sierra 

Club, the Eleventh Circuit found that Florida’s bright line rule that excluded all water 

quality data older than 7.5 years violated the requirement to evaluate all existing and 

readily available data, and therefore EPA was required to independently evaluate the 

reliability of the excluded data before approving Florida’s list. See id. at 913-14. Unlike 

the Florida in Sierra Club, however, Washington actually analyzed its long-term

monitoring pH data and identified a problem specific to that data. See WA-000153. 

CBD and the Fishing Associations cite no authority requiring EPA to perform an 

additional, independent evaluation of either the data or Washington’s analysis. 

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To the contrary, EPA’s decision regarding the evaluation of complex scientific data that 

lies within the agency’s technical expertise is entitled to deference. See Envtl. Def. Ctr., 

Inc., 344 F.3d at 869. Therefore, the court finds that EPA’s decision not to independently 

review Ecology’s marine monitoring data was not arbitrary, capricious, or contrary to 

law. See Thomas v. Jackson, 581 F.3d 658, 664-65 (8th Cir. 2009) (deferring to EPA’s 

approval of the state’s finding that the monitoring data for certain water segments was 

insufficient because the plaintiffs “offer[ed] no explanation or support as to why 

additional data are required to conclude that the existing data are insufficient”). 

The remaining arguments raised by the Fishing Associations are unavailing. First, 

the Fishing Associations rely on extra-record evidence to argue that the electrode probes 

used by Ecology are designed to be accurate to 0.1 pH units, and therefore Ecology’s 

conclusion that the probes evidenced “large (+/- 0.5 pH)” errors is suspicious. (See 

Fishing Br. at 13-14.) Ordinarily, such extra-record evidence is inadmissible to judge an 

agency’s decision. See Lands Council, 395 F.3d at 1030. The Fishing Associations 

contend that this evidence is admissible as necessary to determine whether EPA 

considered all of the relevant factors. See id. The court declines to decide the issue 

because even if the evidence were admissible, it would have no bearing on the court’s 

evaluation of EPA’s decision. 

//

//

//

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To begin, two of the documents are irrelevant to the Fishing Associations’ 

arguments.29 The third document, an online specification sheet for the probes that 

Ecology uses to measure coastal pH, states that an accuracy of +/- 0.1 pH unit is 

“achievable with frequent field calibrations.”30 Yet the fact that the probes are designed 

to be accurate to 0.1 pH units does not contradict Ecology’s observation that the probes 

were functioning less than optimally in situ. The design specification, without more, 

does not cast doubt on Ecology’s analysis or EPA’s finding that Ecology’s analysis was 

reasonable. 

 Next, the Fishing Associations contend that even after Ecology and EPA 

determined the data was unreliable, Ecology and EPA should have continued 

“evaluating” the data by making certain assumptions about the data. (Fishing Br. at 14-

15.) Specifically, the Fishing Associations argue that, even assuming the +/- 0.5 pH units

error range operated only to under-count pH excursions, and even conceding the +/- 0.5 

 

29 The document titled “Washington State Marine Water Quality, 1998-2000” at page 13 merely 

lists a series of “monitoring data quality objectives,” one of which is that the “reporting limit” for pH 

monitoring is 0.1 pH units. A reporting limit, however, refers to the lowest concentration of a chemical 

that an instrument can observe with any degree of confidence, not to the accuracy of the instrument. 

Moreover, this limit is an agency objective, not an instrument specification. Next, the document titled 

“Stream Sampling Protocols for the Environmental Monitoring and Trends Section, October 2001” sets 

forth the procedure for collecting pH stream measurements and mentions an “assumed” precision of 0.1 

pH units. Precision, however, is not the same as accuracy: accuracy is the proximity of a measurement to 

the true value, whereas precision refers to the repeatability or reproducibility of a measurement. 

Moreover, it is unclear that freshwater sampling protocols are applicable to the coastal issues raised in 

this case. As such, neither of these documents is relevant to EPA’s decision. See Fed. R. Evid. 401, 402. 

30 (See Fishing Br. at 10 (citing Marine water quality monitoring parameters, 

http://www.ecy.wa.gov/apps/eap/marinewq/helpnotes/param_descriptions.html (last accessed February 3, 

2015) (describing the pH meter used in Washington since 1989 as the SeaBird SBE 18 sensor) and SBE 

18 pH Sensor, http://www.seabird.com/products/spec_sheets/18data.htm (last accessed February 3, 2015) 

(describing the SeaBird SBE 18 as having an accuracy of +/- 0.1 pH).

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pH units error range rendered the data inadequate to assess Washington’s prohibition of 

anthropogenic changes greater than 0.2 pH units, the data can still be relied upon to show 

numerous violations of the 7.0 pH lower limit of Washington’s numerical pH standard. 

(Id. at 14-15, Table 4 (tallying measurements below 6.5 pH at various sampling points).) 

Ecology, however, specifically found that the electrode probes’ inaccuracy was 

substantial and “non-quantifiable.” See WA-000153. The court declines to require an 

agency to continue to rely on a dataset that the agency has already determined is 

inaccurate. Such a requirement would not only be bad law, it would be bad science. 

Contrary to CBD and the Fishing Associations’ assertions, the court is not 

condoning a tactic of avoiding the responsibility to assemble and evaluate all existing 

data by knowingly conducting unreliable monitoring and then choosing to ignore the 

results. (See Fishing Br. at 13; CBD Resp. at 12.) The court does not comment on 

Ecology’s future responsibilities with respect to coastal pH data monitoring now that 

Ecology is aware of the unreliability of its current monitoring system. The court remains 

unconvinced, however, that it is any kind of a solution to force continued reliance on 

error-prone data once an agency has recognized the error. For these reasons, the court 

finds that EPA did not act arbitrarily or capriciously in declining to conduct an 

independent evaluation of Ecology’s long-term marine monitoring pH data. 

ii. USCS, STORET, and NOAA data

CBD also contends that pH data collected by other agencies and stored in the

USGS, STORET, and NOAA databases show that locations such as Hood Canal, Padilla 

Bay, Elwha Estuary, and Bellingham Bay experienced multiple violations of 

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Washington’s numerical pH standard from 2006 through 2012. (See CBD at 13, Attach. 

A.)31 CBD points out that Ecology did not rely on pH data from these sources to add any 

marine water segments to its 2010 impaired waters list. (CBD Resp. at 12, n.11); see also 

WQA (sorted for the parameter “pH”). CBD contends that EPA should have noticed that 

omission and independently sought out and evaluated USGS, STORET, and NOAA 

marine pH data. (CBD Resp. at 12-13); see WA-000021-70 (listing the ocean 

acidification references and data that EPA relied upon). There is, however, no indication 

in the record that marine pH data from the USGS, STORET, and NOAA databases were 

submitted to 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. 

“EPA will generally limit its review of a state listing submission to the data and 

information assembled by the state . . . if the state was reasonably diligent in assembling 

available data and information and soliciting data and information from the public.” EPA 

2006 Guidance at 31; see also Barnum Timber Co., 835 F. Supp. 2d at 781 (finding that 

the Clean Water Act provides EPA only a “limited” role in reviewing states’ Section 

303(d) lists); 40 CFR 130.7(b)(5). Only if the state was not reasonably diligent is EPA 

required to independently assemble data and information in order to comply with the 

Clean Water Act’s requirements. See Alaska Ctr. for Env’t, 20 F.3d at 983; EPA 2006 

 

31 Quoting and summarizing NOAA data from National Estuarine Research Reserve System, 

http://cdmo.baruch.sc.edu/get/export.cfm (last accessed February 3, 2015) and USGS and STORET data 

from National Water Quality Monitoring Council, Water Quality Data, 

http://www.waterqualitydata.us/index.jsp (last accessed February 3, 2015) showing pH measurements less 

than 7.0 units. 

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Guidance at 31; 33 U.S.C. § 1313(d)(2); see, e.g., OR1-00008-9 (independently 

assembling and evaluating water quality data after partially disapproving Oregon’s 

impaired waters list). 

EPA found that Washington was reasonably diligent in complying with the 

requirement to assemble and solicit information from other organizations and individuals. 

See WA-00004. Specifically, EPA found:

Washington actively sought data collected by other federal agencies, state 

agencies, tribes, local governments, watershed councils, and private and 

public organizations and individuals. A call for data was published in the 

State Register on August 5, 2009, announcing the dates for submittal of 

information from August 5 to October 15, 2009. Postcards were sent to 

over 300 names on the State’s mailing list including federal, state, and local 

government agencies and other people expressing an interest . . . . 

After the call for data, Ecology evaluated the data and prepared a statewide 

assessment. Approximately 2 million sample data values were reviewed.

Ecology’s 2010 Water Quality Assessment database contains over 25,000 

water quality records. 

WA-00004. In addition, EPA found:

For the 2010 303(d) list Washington solicited data from August 5 to 

October 15, 2009, seeking technical information and data on the conditions 

of Washington’s surface waters. Data received during this call for data 

period and data collected by Ecology were used to develop the draft 

Integrated Report and 303(d) list. The draft 2010 Integrated Report and 

303(d) list were released for public review from June 16 to August 16,

2011. The public comment periods provided the public an opportunity to 

look at and comment on the Integrated Report including the draft 303(d)

list. 

WA-00005; see also, e.g., WA-000162 (announcement of Ecology’s call for water 

quality data); WA-000166 (same); WA-000169 (same); WA-000172 (same); WA000205 (invitation for public comments); WA-000206 (notice of public comment 

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period). Based on these actions, EPA “conclude[d] that the [s]tate properly assembled 

and reasonably evaluated all existing and readily available data and information.” WA000006

The court finds that EPA’s conclusion that Ecology complied with the requirement 

to assemble and actively solicit information was reasonable. See Kern Cnty. Farm 

Bureau, 450 F.3d at 1076; Decker, 133 S. Ct. at 1337. Because Ecology was reasonably 

diligent in assembling available data and information, EPA was not required to seek out 

additional data and information—including marine pH data from the USGS, STORET, or

NOAA databases—during its review. See EPA 2006 Guidance at 31; Barnum Timber 

Co., 835 F. Supp. 2d at 781. 

CBD contends that it was inconsistent for EPA to independently evaluate USGS 

and STORET data when adding waters to Oregon’s impaired waters list but not when 

approving Washington’s list. (CBD Mot. at 31.) EPA’s responsibilities with respect to 

the two lists, however, were not commensurate. Under EPA’s interpretation of its 

regulations, EPA’s duty to independently assemble and evaluate water quality data arose 

only after it determined that Oregon had not been reasonably diligent in assembling water 

quality data. See OR1-00008-9 (partially disapproving Oregon’s list because Oregon did 

not consider data in its own LASAR water quality database, and then relying on LASAR, 

USGS, and STORET data to complete the list); Alaska Ctr. for Env’t, 20 F.3d at 983; 33 

U.S.C. § 1313(d)(2); EPA 2006 Guidance at 31. The court cannot say that this position is 

erroneous or inconsistent with the Clean Water Act. See Decker, 133 S. Ct. at 1337; 

Barnum Timber Co., 835 F. Supp. 2d at 781. 

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Moreover, not only did no party raise the issue of USGS and STORET pH marine 

data with EPA, but Ecology’s Water Quality Assessment spreadsheet shows that Ecology 

did rely on USGS and STORET pH data for many non-marine waters. See, e.g., WQA 

(entries for Palouse River, Columbia River, Ozette River, Soleduck River, Cedar Creek, 

and Paradise Creek, among others). Ecology’s Water Quality Assessment contains over 

65,000 entries explaining the data considered for each pollutant within each Washington 

water segment. See generally id. Requiring EPA to sua sponte recognize and investigate 

the absence of USGS and STORET marine pH data (as opposed to the other USGS and 

STORET data that Ecology indisputably considered) from these tens of thousands of 

entries would set an impracticably high bar. See Barnum Timber Co., 835 F. Supp. 2d at

781 (emphasizing that the Clean Water Act gives EPA only 30 days to approve or 

disapprove a state’s impaired waters list); 33 U.S.C. § 1313(d)(2) (“The Administrator 

shall either approve or disapprove such identification and load not later than thirty days 

after the date of submission.”).

Finally, the court notes that CBD’s comments on Ecology’s draft 2010 assessment 

of Washington’s marine waters stated that NOAA “may have data relevant to assessing 

the impact of carbon dioxide on coastal waters.” WA-000813; see also WA-000739. 

Similarly, EPA’s 2010 memorandum on ocean acidification stated that NOAA’s National 

Estuarine Research System “may be useful to States as they assess coastal waters for 

marine pH impairment.” EPA OA Memo at 7. The memorandum, however, specifically 

does “not impose legally binding requirements on EPA or the States.” Id. at 5. 

Moreover, according to the evidence before the court, NOAA’s National Estuarine 

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Research System includes only a single monitoring station in Washington waters. See 

CBD Resp. at 13; National Estuarine Research Reserve System, 

http://cdmo.baruch.sc.edu/get/export.cfm (last accessed February 3, 2015) (listing data 

for Padilla Bay). 

EPA’s review of Washington’s 303(d) list was “based on its analysis of whether 

the State reasonably considered existing and readily available water quality-related data 

and information.” WA-00004 (emphasis added); see Barnum Timber Co., 835 F. Supp. 

2d at 781 (deferring to EPA’s discretion when EPA found that a state “reasonably 

considered existing and readily available water quality-related data and information and 

reasonably identified waters required to be listed”). Agencies are entitled to deference 

regarding interpretations of their own regulations. See Decker, 133 S. Ct. at 1337. 

Furthermore, CBD concedes that Ecology received and reviewed over 100 studies, 

articles, and letters regarding ocean acidification alone, not to mention the prodigious 

volume of the comments, data, and information the agency received regarding the 

remainder of the impaired waters list. (See CBD Mot. at 9); WA-000071-86; WA000800; WA-000102-152. Taking all these considerations into account, the court finds 

that EPA’s conclusion that Ecology reasonably considered readily available marine water 

quality data despite overlooking one pH data point at Padilla Bay does not rise to the 

level of arbitrary and capricious agency action.32

 

32 CBD also contends that EPA and Ecology improperly failed to obtain pH data from Dr. Feeley. 

(CBD Mot. at 34.) CBD, however, provides no evidence that a relevant pH dataset of Washington waters 

collected by Dr. Feeley exists, let alone a dataset that suggests violations of Washington’s pH standard. 

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c. Summary

In sum, the court finds that EPA’s conclusion that Washington and Oregon 

satisfied the regulatory requirement to assemble and evaluate all readily available water 

quality data regarding ocean acidification was not arbitrary and capricious. As such, both

of CBD’s challenges to Washington’s and Oregon’s lists are unsuccessful. Because 

EPA’s approval of Washington’s and Oregon’s Section 303(d) lists is plausible in light of 

the evidence and EPA reasonably concluded that Washington and Oregon assembled and

evaluated all existing and readily available water quality data, EPA is entitled to 

summary judgment in its favor. See Celotex Corp., 477 U.S. at 322. 

IV. CONCLUSION

For the foregoing reasons, the court DENIES CBD’s motion for summary 

judgment (Dkt. # 33) and GRANTS EPA’s motion for summary judgment (Dkt. # 34). 

The court GRANTS IN PART and DENIES IN PART EPA’s motions to strike (Dkt. 

## 50, 51). Finally, the court GRANTS API’s motion to file a reply brief (Dkt. # 58).

Dated this 2nd day of March, 2015. A

JAMES L. ROBART

United States District Judge

 

See, e.g., WA-002014 (noting that the Feeley 2008 article did not publish any Washington data, but that 

such data may nonetheless have been collected); WA-000069 (stating that Dr. Feeley took measurements 

of dissolved organic carbon and total alkalinity in Puget Sound in 2008). Therefore, the court declines to 

address that contention. 

Case 2:13-cv-01866-JLR Document 69 Filed 03/02/15 Page 70 of 70