As EPA continues to develop its policy on global climate change, significant questions remain as to the extent of the regulatory burdens that will be imposed on public utilities and private industry under the Clean Water Act (CWA) to address the predicted effects of global climate change on future weather patterns.  For years now, environmental interest groups have pressed EPA to accept modeled predictions that climate change will result in drastically higher sea levels, increased rainfall, and rising water temperatures, and to incorporate these predictions into the Agency’s administration and enforcement of the CWA.  If rising sea levels and increased stormwater are inevitable, the argument goes, why not develop the infrastructure to accommodate them now?

So far, while EPA has left the door open to future consideration of the effects of climate change, it has generally opposed the direct imposition of costs under the CWA to address predicted impacts.  In the past year, for example, EPA has successfully argued for dismissal of claims brought by the Conservation Law Foundation seeking to compel reevaluation of the areawide waste treatment management plan for the Cape Cod region due, in part, to its failure to address climate change.[1]  Similarly, EPA is currently defending the entry of a CWA consent decree for Miami-Dade County that has been challenged, in part, for not including capital projects to adequately address the rising sea levels and increased storm surges predicted by the intervenors.[2]  EPA has argued that the time is not ripe for these issues.  As recently stated by EPA in defense of the Miami-Dade County consent decree:  “There is no evidence that changes in local hydrologic conditions attributable to changes in the climate will render the required work unnecessary.  Nor is there evidence that any of the violations addressed by the CD have been or are in any way connected to changes in the climate.”[3]  “[B]ecause [the district] cannot predict future weather patterns or the size of every future rainstorm, one cannot know with certainty how the injunctive relief will perform until it is finished.”[4]

Even as EPA has argued for caution in adopting specific climate change requirements in Massachusetts and Florida, however,  EPA’s Office of Water continues to lay the foundation for strict numeric regulation based on predicted climate change.  Just last year, EPA published its draft Climate Change Adaptation Plan, which proposes to take a hard look at the “vulnerability of water resources, including clean water and drinking water programs, to climate change.”  In its draft plan, EPA proposes a number of “priority actions” including the assessment of coastal areas at risk of inundation from storm surges.[5]  EPA has also already begun pressing for specific climate change protections in watersheds deemed to be “vulnerable.”  On January 17, 2014, for example, Region I raised concerns with the State of Vermont’s Clean Lake Champlain proposal due to its failure to account for increased rainfall from climate change.  In particular, Region I has requested that Vermont revise its proposal to specifically address both “[c]limate adaptation and flood resilience . . . for each major category of practices” and to account for numeric phosphorus increases projected by EPA’s own climate change analysis.[6]  Similar focused efforts over the next year have been identified for the Great Lakes, Chesapeake Bay, Puget Sound, the Delaware Estuary, Long Island Sound, and the siting of oceanic wind energy projects.[7]

As EPA develops its climate assessment tools and screening criteria, and establishes precedent with these initial projects, there is little question it will look to expand its efforts to the rest of the regulated community.  As a result, it may not be long before communities and industrial dischargers are asked to make significant expenditures to increase stormwater retention and treatment, improve flood protection, and reduce nutrient loadings, all in the interest of protecting against the modeled effects of climate change.  It will be increasingly important, therefore, for regulated sources to actively participate in EPA’s implementation of its climate change plan to ensure that additional burdens are not needlessly imposed and that the steps required by EPA to address the predicted impacts of climate change adequately reflect the uncertainty inherent in predicting these distant effects.

[1] Order, Conserv. Law Found. v. Jackson, Doc. 50, Case No. 1:11-cv-11657-MLW (D. Mass. Aug. 23, 2013).

[2] See, Biscayne Bay Waterkeeper and Judi Kolsen Response in Opposition to Motion to Enter Consent Decree, U.S. v. Miami-Dade Cnty., Case No. 12-24400-FAM (S.D. Fla. Filed Dec. 13, 2012).

[3] Reply in Opposition to Motion to Enter Consent Decree, Doc. 127 at 3, U.S. v. Miami-Dave Cnty., Case No. 1:12-24400-FAM (S.D. Fla. January 27, 2014).

[4] Id. (citing United States & Illinois v. Metro. Water Reclamation Dist. (MWRD) of Greater Chicago, Case No. 11-C-8859, 2014 WL 64655 (N. D. Ill. 2014).

[5] Id. at 11.

[6] Letter from Stephen S. Perkins, Office of Ecosystem Protection to David Maers, Commissioner, Vermont Dep’t. of Env’l. Cons. And Chuck Ross, Secretary, Vermont Agency of Agriculture, Food and Markets, at 1-2 (January 17, 2014).

[7] Draft Office of Water Climate Change Adaptation Implementation Plan at 21-22.