A lot has been happening in 2022 on policies that concern waters, not just the ocean, but also waters in a broader sense such as streams and rivers in the United States. What follows below is a summary rundown of the key significant policy and policy-impacting research.
Water-Bound Plastics Developments
A recent study published by Scientific Reports (September 1) and conducted by The Ocean Cleanup found that anywhere between 75-86 percent of trash floating in the North Pacific Ocean (a.k.a., the Great Pacific Garbage Patch) comes from industrialized offshore fishing and aquaculture activities -- not from land sources. Such trash is composed largely of fishing nets and ropes as well as hard plastic objects and fragments (e.g., plastic eel crates, fish crates/boxes) sometimes carrying evidence of origin. Industrialized fishing trash comes primarily from Japan, China, South Korea, the US, Taiwan, and Canada.
The respected Ocean Conservancy reversed its support (July 10) of a 2015 study on ocean plastics which recommended both plastics incineration and waste-to-energy as acceptable solutions towards controlling ocean-bound plastics. The group says it did not consider how such methods "support continued demand for plastic production and hamper the move to a circular economy and a zero-carbon future." The group also says that the focus of the study on one region in the report–East and Southeast Asia–"created a narrative" about responsibility that failed to reflect the "outsized role" that the developed nations play in generating and exporting plastic waste. The group says that incineration is "antithetical" towards those efforts needed to reduce virgin plastic production.
California enacted several new/updated plastics laws to cut plastics pollution; for example, starting in 2025 plastic produce/bulk bin bags in grocery stores will have to be reusable, recyclable, or compostable. Other single-use plastic bags in stores were were previously banned in the state. A separate law will ban single-use propane canisters (e.g., those used for camping) starting in 2028. A law to phase out thermoform plastics–containers that have been molded into shape by heat and used frequently for food containers and plastic trays–was vetoed by the state's governor on the basis that it would conflict the state's new extended producer responsibility law (see below).
The fifth session of the United Nations Environmental Assembly (UNEA-5.2) agreed to a resolution (March) to develop a "legally-binding" international treaty on plastics, particularly ocean-bound plastic, by the year 2024. Actions under the envisioned treaty will seek to address plastics management “from source to sea,” in other words, the whole plastics product lifecycle from production through disposal and reduction of the leakage of existing plastic currently in the global ecosystem. The Biden Administration backs this treaty, expressing support in 2021 prior to the UN session and called on countries “to develop and enforce strong national action plans to address this problem at the sources."
California's Ocean Protection Council issued (February) the nation’s first state microplastics strategy. The strategy includes a two-track approach: solutions and science. The “solutions” track includes twenty-two specific needed legislative and/or regulatory actions such as requiring single-use foodware and condiments be provided only upon request; prohibiting the sale and distribution of expanded polystyrene foodware and packaging by 2023; and expanding the current statewide microbead ban to include microplastics that are intentionally added to specific consumer products, such as cosmetics, household and industrial detergents, and cleaning products by 2023. The “science” track includes thirteen research-oriented measures supporting data collection and analysis that will inform potential future actions, such as developing by 2024 a model microplastics monitoring program with an ongoing integrated statewide ambient monitoring network to quantify microplastic occurrence.
The EPA announced (June) that it has begun its processes to begin to distribute $375 million resources for recycling, reuse, and waste prevention programs, funding provided within last year’s Infrastructure Act. Resources will support a new Solid Waste Infrastructure for Recycling grant program, a Recycling Education and Outreach grant program, and development of a Model Recycling Program toolkit. The EPA says that this is the largest U.S. investment in recycling in 30 years.
The Interior Department announced (June) that it has established a goal to eliminate single-use plastics on Federally-managed lands by 2032. The component parts of the Department are instructed to develop specific plans and timelines for purchasing and deploying sustainable products consistent with this goal. Sustainable products are those that are “nonhazardous, environmentally preferable alternatives to single-use plastic products, such as compostable or biodegradable materials, or 100 percent recycled materials.” Final plans of Interior's component agencies should be in place one year from now under the Department's guidance.
New Plastics Extended Producer Responsibility (EPR) Laws
Colorado (June) and California (July) are the latest states to enact EPR laws. Similar laws in Maine and Oregon went into effect earlier this year (2022).
California's law will establish a state Producer Responsibility Organization (PRO) by January 2024, who will then collect fees from producer members. Fees will fund efforts to cut plastic pollution and help the communities affected by plastics pollution. PRO participants will be asked to reduce plastics packaging by 25% by 2032. In addition, the PRO must help drive plastics recycling to 30% by 2028, increasing to 65% by 2032. If producers cannot meet the target levels, plastics will be banned entirely.
Colorado's law will establish a PRO by 2026 to collect and manage fees, which will be based on the types of materials. Revenue will support improvements to, and operations of, the state's recycling programs. Colorado's recycling rate currently is just 15% (2020), and most rural residents in the state don't even currently have access to recycling.
Infrastructure Repair & Waters Cleanup
The EPA has been adjudicating requests during 2022 to extend deadlines regarding the plans of power companies/managing organizations to begin the process of closing coal ash ponds starting this year under existing regulations. Several requests have been denied. Coal ash is a byproduct of burning coal in coal-fired power plants and contains contaminants like mercury, cadmium, and arsenic, and can endanger groundwater, ponds and streams. The EPA says that there are about 500 unlined coal ash ponds in the United States. Reporting by E&E News (June) suggests the agency is considering if 160 coal ash ponds have material that is in contact with groundwater. Entities will have to address leakage issues before the locations can close.
The EPA announced (June) that it began its processes to distribute $60 million ($12 million per year for five years) in new funding that will be used to finance nutrient reduction activities as part of the Gulf of Mexico Hypoxia Program, funding provided within last year’s Infrastructure Act. Hypoxia, or low oxygen levels in water, can be caused by excess nutrients such as nitrogen and phosphorus, impacting ecosystems, killing fish and other wildlife, and can be so severe that aquatic dead zones develop. In May, the EPA announced that it had awarded the first infusion of $25 million in new funding also provided under the Infrastructure Act for the Chesapeake Bay, with this funding covering watershed and nutrient and sediment reduction projects. This funding is part of a larger $40 million Infrastructure Act package this year, that is part of a larger $238 million package of new funding for the Bay over five years.
The Fish and Wildlife Service released (April) $38 million in new funding provided in the Infrastructure Act for 'shovel-ready' aquatic projects in 23 States for fish passage projects under the National Fish Passage program, part of a $200 million five-year infusion of new funding. The program helps communities remove obsolete and dangerous dams inhibiting river ecosystems and improving road stream crossings to improve the natural flow of streams.
Mining & Drilling Decisions
The EPA extended its timeframe (September 6) for considering public comments on its Proposed Determination issued in May to restrict or prohibit uses of certain waters in the Bristol Bay, Alaska watershed as disposal sites for the discharge of dredged or fill material associated with mining the Pebble Deposit. The EPA has given itself until December 2 to complete its processes and to either withdraw the Proposed Determination or prepare to finalize its decision, first with an EPA Region "Recommended Determination" that takes comments into account, and then with an eventual EPA Headquarters "Final Determination." As part of its Proposed Determination, EPA claimed that two decades of scientific analysis supports a decision that mining the Pebble Deposit could result in unacceptable adverse effects on salmon fishery areas. The total economic value, including subsistence uses, of the Bristol Bay watershed’s salmon resources was estimated at more than $2.2 billion, an industry primarily benefiting Alaska Natives.
The Army Corps of Engineers reversed (June) an earlier decision to permit titanium mining near Okefenokee Swamp in Georgia claiming that Twin Pines Mining failed to properly consult with the Muscogee Creek Nation, and the company will have to reapply for a permit. However, an August agreement between the Army Corps and the company put a final permitting decision in the hands of Georgia's Environmental Protection Division, which opponents fear will result in permitting approval. Environmentalists have cited environmental concerns and the potential impact of mining on wetlands, but the company disagrees with environmental concerns.
The Interior Department reinstated the results (September 14) of a November 2021 oil and gas lease sale 257 in the Gulf of Mexico. The recently-enacted Inflation Reduction Act (IRA) specifically required in statute the reinstatement of the results of this sale. At the time of the original lease, Interior accepted 307 bids for drilling within 257. While a Federal judge had set the lease results aside following a lawsuit from environmental groups, the matter became moot with the inclusion of the IRA provision on this lease. Other lease sales which had been canceled by Interior–258 in Alaska's Cook Inlet, 257 and 259 in the Gulf of Mexico–now will all be held in the future per IRA law.
Supreme Court Case Concerning "Waters of the United States"
The U.S. Supreme Court is considering potentially a precedent-setting case during its current 2022-2023 session that could affect the ability of the EPA to regulate water conditions of streams that are on private property. Under Sackett v. EPA, the Sackett family is asking the Supreme Court for clarity regarding the extent of the EPA's jurisdiction to regulate land on their property using authorities under the Clean Water Act (CWA). The EPA believes the CWA gives the agency the authority to define waters-of-the-United-States that are under the agency's regulatory jurisdiction. Oral arguments are being heard in October and a decision will be issued next year.
New Marine Sanctuary
The Biden Administration proposed (June) to designate Hudson Canyon as a national marine sanctuary. The Canyon is about 100 miles southeast of New York City, and extends about 350 miles seaward, reaching depths of 2 to 2.5 miles with a width of up to 7.5 miles. A final decision with details on the scope of the designation, taking public comments and other analysis into account, will likely extend into at least next year. As protected areas, worldwide marine sanctuaries including US national marine sanctuaries usually have limitations on fishing, energy development and other activities.
