Earthjustice went to court today to compel the US Environmental Protection Agency to identify ocean and coastal waters contaminated by invasive species and to plan for their cleanup. The law firm for the environment represents The Ocean Conservancy in the lawsuit against the EPA in federal District Court for the Northern District of California.

The lawsuit contends EPA violated the Clean Water Act by failing to require California to include several waters on its 2002 list of impaired waters. The Clean Water Act requires each state to list impaired waters, or waters that are so polluted that they cannot support uses such as fishing, swimming or aquatic life habitat. Then EPA must ensure that the state establishes the total maximum daily loads or TMDLs for the offending pollutants. The TMDLs act as pollutant limits to help the impaired waters return to full health.

Highlighted in the lawsuit are the Southern California coastal waters impaired by the invasive killer algae Caulerpa taxifolia and San Francisco Bay-Delta Estuary waters impaired by invasive species such as the Chinese mitten crab and Asian clam. The plaintiffs conclude that by failing to identify these waters as impaired, EPA also violated its responsibility to clean them up by setting appropriate limits for these biological pollutants.

“Invasive species are moving in, and instead of slamming the door shut, EPA is putting out the welcome mat,” said Linda Sheehan, Director of the Pacific Regional Office for The Ocean Conservancy. “By ignoring waters that are already impaired, EPA is playing invasion roulette with the health of the rest.”

The San Francisco Bay Regional Water Quality Control Board found in a 2000 study that invasive species “are one of the greatest threats to the integrity of the San Francisco Estuary ecosystem,” and that they “impair or threaten to impair the full range of designated beneficial uses of waterbodies in the San Francisco Estuary.” The Estuary is the primary source of drinking water for two-thirds of all Californians and supports an agricultural industry that provides nearly half of all the fresh fruits and vegetables in the country. Invasive species such as the Chinese mitten crab have already slowed these water deliveries, prompting the Association of California Water Agencies to testify before a legislative committee that, if the state is not successful in preventing further invasive species introductions, “the restrictions on water deliveries . . . will be such that we will not even come close to meeting existing demands for water out of the Delta . . . [and] [a]s shortages grow, our economic base and quality of life will decline since much of our economic prosperity and way of life are dependent on water from the Delta.”

The Caulerpa taxifolia invasions, while more localized, have severely affected the invaded ecosystems due to the algae’s ability to rapidly spread and smother all surrounding aquatic vegetation.

“In Southern California, scientists and local officials had to rope off and tarp popular recreation areas contaminated with Caulerpa, and then kill virtually everything under the tarps,” said Deborah Sivas with Earthjustice Environmental Law Clinic at Stanford University, which represents The Ocean Conservancy. “Unfortunately, we’re still not sure all the killer algae is gone or whether it will be successfully reintroduced. Unless EPA complies with the Clean Water Act by addressing invasive species, we will only see an increasing number of waters that we cannot swim, fish, or boat in because of this problem.”

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