[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Notices]
[Pages 13537-13540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6239]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2010-0175; FRL-9128-8]
Clean Water Act Section 303(d): Notice of Call for Public Comment
on 303(d) Program and Ocean Acidification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Request for Public Comment.
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SUMMARY: This notice solicits public comment on the effects of Ocean
Acidification (OA) as it relates to the listing of impaired waters
under Section 303(d) of the Clean Water Act (CWA). Under Section 303(d)
of the CWA, States, Territories, and authorized Tribes are required to
develop lists of impaired waters and develop Total Maximum Daily Loads
(TMDLs) for the pollutant(s) causing the impairment. By this notice,
EPA is soliciting input from the public on what considerations EPA
should take into account when deciding how to address listing of waters
as threatened or impaired for ocean acidification under the 303(d)
program. Should EPA decide to issue guidance regarding the listing of
waters as threatened or impaired for ocean acidification under the
303(d) program, EPA is using this opportunity to seek public comment on
the specific assessment, monitoring and other elements under CWA that
EPA should consider, as well as input on how EPA can take into account
other Federal ocean acidification programs and initiatives when
deciding how to approach ocean acidification under the 303(d) program.
DATES: Comments must be received on or before May 21, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0175 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
Mail: Clean Water Act Section 303(d): Notice of Call for
Public Comment on 303(d) Program and Ocean Acidification, Environmental
Protection Agency, Mailcode: 4503-T, 1200 Constitution Ave., NW.,
Washington, DC 20460.
Hand Delivery: EPA Docket Center Public Reading Room, EPA
West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. Such
deliveries are only accepted during the Docket's normal hours of
operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays), and special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0175. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Clean Water Act
Section 303(d): Notice of Call for Public Comment on 303(d) Program and
Ocean Acidification/EPA Docket Center Public Reading Room, EPA West,
Room 3334, 1301 Constitution Avenue, NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The Docket telephone number is (202) 566-
1744. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Christine Ruf, Ecologist, Assessment
and Watershed Protection Division, Watershed Branch (4503-T)
Environmental Protection Agency, 1301 Constitution Ave, NW. (MC 4503-T)
Washington, DC; telephone number: (202) 566-1220; fax number: (202)
566-1437; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
1. This information may be useful to Federal, State, Tribal, and
Territorial managers of water quality programs, including the Total
Maximum Daily Load [Clean Water Act 303(d)] program, and assessment and
monitoring programs.
2. This information may be useful to scientists and researchers
involved in measuring and studying ocean acidification impacts.
3. This information may be useful to ocean and coastal managers who
are identifying effective strategies for Federal, State, and local
officials to use to address the potential impacts of ocean
acidification.
B. What Should I Consider as I Prepare My Comments for EPA?
Information submitted in response to this FR Notice should address
the issue of ocean acidification and the CWA Section 303(d) program,
including whether EPA should issue guidance regarding the listing of
waters as threatened or impaired for ocean acidification, and what that
potential guidance might entail. Commenters should also address any
other implications that ocean acidification may have for the 303(d)
program. Detailed information about the 303(d)
[[Page 13538]]
program can be found at: http://www.epa.gov/OWOW/tmdl/. EPA is also
soliciting scientific information, data and ideas for effective
strategies for Federal, State, and local officials to use to address
the potential impacts of ocean acidification thorough the 303(d)
program. Specifically, EPA is requesting comment on the following:
1. What considerations should EPA take into account when deciding
how to address the listing of waters as threatened or impaired for
ocean acidification under the 303(d) program?
2. If EPA issues guidance regarding the listing of waters as
threatened or impaired for ocean acidification under the 303(d)
Program, what are the specific elements that EPA should consider?
Should the Agency specifically consider the following:
a. What surface water monitoring methods and programs are available
to States to measure ocean acidification impacts?
i. Are there emerging remote sensing technologies that might be
particularly suited to gathering information about acidification of
ocean waters?
ii. Are there new programs for collecting information about
acidification of marine waters off the U.S. coasts that could provide
information useful to EPA or States in the next few years?
b. What assessment methodologies are available for States to make
attainment determinations consistent with water quality standards
related to ocean acidification?
c. How can States incorporate additional information on ocean
acidification beyond site-specific measurements? (e.g. offshore and
global surveys, experiments and field studies on representative species
or ecosystems, models for ocean acidification and carbon dioxide
emission trends, etc.)
d. What other data and information is available for States to use
in making decisions regarding whether waters are threatened or impaired
for ocean acidification?
3. How can States or EPA otherwise aid in monitoring ocean
acidification and its impacts on marine life and ecosystems?
4. If waters were determined to be threatened or impaired for ocean
acidification under 303(d), what issues should EPA and States take into
account when considering how to address TMDL development for such
waters?
5. What other Federal ocean acidification programs and initiatives
(e.g. National Ocean Policy, Subcommittee on Integrated Ocean Resources
(SIMOR), Joint Subcommittee on Ocean Science and Technology (JSOST),
National Research Council report on Marine pH) should EPA take into
account when deciding how to approach ocean acidification under the
303(d) program?
II. Background Information on the 303(d) Program
CWA Section 303(d) and supporting regulations (40 CFR 130.2 and
130.7) establish the Impaired Waters Listing and TMDL Program. The
Impaired Waters Listing and TMDL Program is primarily a State-driven
process with EPA oversight. Key stakeholders include the States, the
NPDES regulated community, agricultural community, environmental
organizations, watershed groups, municipalities, local government,
Tribal agencies, and Federal land management agencies. Under this
program, States, Territories, and authorized Tribes (collectively
referred to in the CWA as ``States'') are required to develop lists
every two years of water quality-limited waters needing a TMDL (e.g.,
2008, 2010) and submit the lists to EPA. These are waters for which
technology-based regulations and other required controls are not
stringent enough to meet applicable water quality standards.
In developing these lists, regulations at 40 CFR 130.7(b)(5)
specify that each State shall assemble and evaluate all existing and
readily available water quality related data and information to develop
the list. At a minimum, ``all existing and readily available water
quality-related data and information'' includes but is not limited to
all of the following categories:
(i) Waters identified in the most recent CWA Section 305(b) report
as ``partially meeting'' or ``not meeting'' designated uses, or as
threatened;
(ii) Waters for which dilution calculations or predictive models
indicate nonattainment of applicable water quality standards;
(iii) Waters for which water quality problems have been reported by
local, State, or Federal agencies; members of the public; or academic
institutions; and
(iv) Waters identified by the State as impaired or threatened in a
nonpoint assessment submitted to EPA under Section 319 of the CWA.
EPA is required to approve or disapprove a State's impaired waters
list. If EPA disapproves a list, EPA must identify the impaired waters
that should be listed. States are also required to establish priority
rankings for waters on the lists and develop TMDLs for these waters. To
date, about 44,000 waters are listed nationwide as impaired (http://iaspub.epa.gov/waters10/attains_nation_cy.control?p_report_type=T).
A TMDL is a calculation of the maximum amount of a pollutant that a
water body can receive and still meet applicable water quality
standards, and an allocation of that amount to the pollutant's point
(wasteload allocation) and nonpoint (load allocation) sources. States
develop TMDLs for each waterbody/pollutant combination identified on
the impaired waters list and submit the TMDLs to EPA. CWA Section
303(d) and supporting regulations do not specify a timeframe for States
to develop TMDLs. However, EPA recommends that States develop TMDLs
within 8 to 13 years from the time the waterbody/pollutant combination
was initially listed on the State's impaired waters list. EPA is
required to approve or disapprove the State's TMDLs. If EPA disapproves
a TMDL, EPA must establish its own TMDL. To date, about 41,000 TMDLs
have been developed nationwide (http://iaspub.epa.gov/waters10/attains_nation_cy.control?p_report_type=T).
Under the TMDL Program, approved wasteload allocations for point
sources must be implemented in applicable National Pollutant Discharge
Elimination System (NPDES) permits. Load allocations for nonpoint
sources are implemented through a wide variety of State, local, and
Federal programs, which are primarily voluntary or incentive-based.
III. Background on Ocean Acidification
Ocean acidification refers to the decrease in the pH of the Earth's
oceans caused by the uptake of carbon dioxide (CO2) from the
atmosphere. Ocean acidification is not a climate process, but instead
directly affects ocean chemistry as seawater absorbs carbon dioxide
from the atmosphere. Oceans have been absorbing about one-third of the
anthropogenic CO2 emitted into the atmosphere since pre-industrial
times (Sabine et al., 2009). Ocean acidification presents a suite of
environmental changes that would likely negatively affect ocean
ecosystems, fisheries, and other marine resources (Feely, 2001;
Hendriks 2010; Wootton, 2008; and Federal Register, USEPA, 12/15/2009).
Calcifying marine organisms may be adversely affected by future ocean
acidification if declining carbonate saturation influences their
ability to produce shells and skeletons out of calcium carbonate
(Ridgwell, 2010). For instance, ocean acidification would likely reduce
calcification rates in corals, and may affect shellfish species such as
oysters, clams, and crabs (Cooper, 2008; Hoegh-Guldberg, 2007; and Gao,
2009).
[[Page 13539]]
Ocean acidification has emerged as a top priority within various
Federal and international programs. Examples of a few key actions are
described below. President Obama created an Interagency Ocean Policy
Task Force on June 12, 2009, to better meet our Nation's stewardship
responsibilities for the oceans, coasts and Great Lakes (White House
Memo, June 12, 2009, online at http://www.whitehouse.gov/sites/default/files/page/files/2009ocean_mem_rel.pdf). The Task Force, on which EPA
is playing a key role, is charged with developing recommendations
within the next several years that include a national policy for our
oceans and coasts, a framework for improved Federal policy
coordination, and an implementation strategy to meet the objectives of
a national ocean policy (http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans).
The group is planning to release a final report that will recommend
a new national ocean policy and will address nine ``action''
categories, including ocean acidification. On December 14, 2009, the
Task Force released its Interim Framework for Effective Coastal and
Marine Spatial Planning (Interim Framework) for a 60-day public review
and comment period. The Interim Framework offers a comprehensive,
integrated approach to planning and managing uses and activities, and
includes a number of important provisions that would significantly
overhaul the Federal Government's approach to coastal and marine
planning (http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans/interim-framework).
Second, on April 15, 2009, the Environmental Protection Agency
(EPA) published a Notice of Data Availability (NODA) in the Federal
Register requesting data and information regarding ocean acidification
and the adequacy of EPA's existing recommended marine pH criterion
(http://www.us-ocb.org/EPA_OA_FR_Notice.pdf). EPA is reviewing the
comments that were submitted, and expects to determine whether to
revise marine pH criterion in the spring of 2010. Third, in June 2008
the Interagency Working Group on Ocean Observations (IWGOO) was
established by the Joint Subcommittee on Ocean Science and Technology
(JSOST) of the National Science and Technology Council (NSTC) Committee
on Environment and Natural Resources (CENR). The purpose of the IWGOO
is to advise and assist the JSOST on matters related to ocean
observations (http://www.ocean.us/IWGOO).
Fourth, the National Research Council is scheduled to release a
report in 2010, that will address research, monitoring and assessment
of ocean acidification (http://www8.nationalacademies.org/cp/projectview.aspx?key=49047). Finally, the Federal Ocean Acidification
Research and Monitoring Act (``FOARAM Act'') (Spring 2009), mandates
interagency collaboration to achieve national priorities related to
ocean acidification.
EPA is also directly involved in a number of other studies and
partnerships to address ocean acidification, including:
EPA released ``Stony Coral Rapid Bioassessment Protocol''
(RBP) on July 2007 (http://www.epa.gov/bioiweb1/pdf/EPA-600-R-06-167StonyCoralRBP.pdf).
EPA is developing a technical guidance framework to aid
States and Territories in their development, adoption, and
implementation of coral reef biocriteria in their respective water
quality standards.
EPA supported the development of the Coral Mortality and
Bleaching Output (COMBO) model to project the effects of climate change
on coral reefs by calculating impacts from changing sea surface
temperature and CO2 concentration, and from episodic high temperature
bleaching events (R.W. Buddemeier, 2008).
EPA's National Coastal Research and Monitoring Strategy
(http://www.epa.gov/ged/crc/epa620r-00-005u.pdf).
EPA's National Coastal Condition Report (NCCR III) (http://www.epa.gov/owow/oceans/nccr/).
IV. Why Is EPA Requesting Comment on Ocean Acidification and the 303(d)
Program at This Time?
The Center for Biological Diversity (CBD) filed a complaint against
EPA on May 14th, 2009 challenging EPA's approval of Washington State's
2008 303(d) list citing failure to include coastal waters as impaired
for marine pH [CBD v. EPA, No. 2:09cv670 (W. D. Wash)]. In addition,
CBD has sent letters to 14 States and 2 Territories requesting that
they list under CWA Section 303(d) all ocean waters impaired by ocean
acidification, and revise their marine pH criteria. In response to this
complaint, EPA is issuing this Federal Register notice seeking comments
addressing ocean acidification under the CWA Section 303(d) program,
including comments on whether EPA should issue guidance regarding the
listing of waters as threatened or impaired for ocean acidification,
and what that potential guidance might entail. EPA expects to make a
decision by November 15, 2010, about how to proceed with regard to the
interplay between ocean acidification and the 303(d) program based on
information received from this FR notice as well as information from
other ongoing Federal efforts that are taking place on issues related
to ocean acidification, described above.
V. References Related to 303(d) Program and Ocean Acidification
Benjamin S. Halpern, et al., A global map of human impact on marine
ecosystems. Science 319, 948 (2008).
Buddemeier, R.W., et al., A modeling tool to evaluate regional coral
reef responses to changes in climate and ocean chemistry. Limnology and
Oceanography Methods, 6:395-411 (2008).
Caldeira, K. Wickett M.E., Anthropogenic carbon and ocean pH. Nature
425:365 (2003).
Cooper, T.F., et al., Declining coral calcification in massive Porites
in two nearshore regions of the northern Great Barrier Reef. Global
Change Biology 14, 529-538 (2008).
Federal Register, Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act. Vol. 74,
No. 239, December 15, 2009. Available online at: http://www.epa.gov/climatechange/endangerment.html.
Federal Register, Notice of data availability (NODA) on Ocean
acidification and marine pH water quality criteria. Vol. 74, No. 71,
April 15, 2009. Available online at: http://www.us-ocb.org/EPA_OA_FR_Notice.pdf.
Feely R.A., et al., Evidence for upwelling of corrosive ``acidified''
water onto the continental shelf. Science 320:1490 (2008).
Feely, R.A, et al., Impact of anthropogenic CO2 on the CaCO3 system in
the oceans. Science, 305: pp 362-366 (2004).
Gao, K. et al., Ocean acidification exacerbates the effect of UV
radiation on the calcifying phytoplankter Emiliania huxleyi. Journal of
the American Society of Limnology and Oceanography, 54(6), 1855-1862
(2009).
Hendriks, I.E., et al., Vulnerability of marine biodiversity to ocean
acidification: A meta-analysis. Estuarine, Coastal and Shelf Science 86
157-164 (2010).
Hoegh-Guldberg, O. Coral reefs under rapid climate change and ocean
acidification. Science, 318, 14 (2007).
[[Page 13540]]
National Oceanic and Atmospheric Administration (NOAA) State of the
science: Ocean acidification, May 2008. Online: Accessed November 3,
2009. Available at: http://www.pmel.noaa.gov/co2/OA/Ocean_Acidification%20FINAL.pdf.
Obama, B., Memorandum for the Heads of Executive Departments and
Agencies: National Policy for the Oceans, Our Coasts and the Great
Lakes, Washington, DC, June 12, 2009 Available online: http://www.whitehouse.gov/sites/default/files/page/files/2009ocean_mem_rel.pdf.
Ridgwell, A. et al., Past constraints on the vulnerability of marine
calcifiers to massive carbon dioxide release, Nature Geoscience,
Advance online publication, February 14, 2010. Available online at:
http://www.nature.com/naturegeoscience.
Sabine, C. et al., The oceanic sink for anthropogenic CO2, Science,
305(5682), 367-371 (2004).
United States Environmental Protection Agency (USEPA), Office of Water
(OW). National Water Program Strategy: Response to Climate Change.
September 2008. Available online at: http://www.epa.gov/water/climatechange/strategy.html.
United States Environmental Protection Agency (USEPA). Watershed
Branch, AWPD, OWOW. Guidance for 2006 Assessment, Listing and Reporting
Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean
Water Act. July 29, 2005. Available online at: http://www.epa.gov/owow/tmdl/2006IRG/report/2006irg-report.pdf.
United States Environmental Protection Agency (USEPA). Watershed
Branch, AWPD, OWOW. Guidance for 2004 Assessment, Listing and Reporting
Requirements Pursuant to Sections 303(d) and 305(b) and 314 of the
Clean Water Act. July 21, 2003. Available online at: http://www.epa.gov/owow/tmdl/tmdl0103/2004rpt_guidance.pdf.
Washington State Department of Ecology. Assessment of Water Quality for
the Clean Water Act Sections 303(d) and 305(b) Integrated Report.
September 2006. Available online at: http://www.ecy.wa.gov/Programs/wq/303d/index.html.
White House Council on Environmental Quality, Interim Report of The
Interagency Ocean Policy Task Force. September 10, 2009. Available
online at: http://www.whitehouse.gov/assets/documents/09_17_09_Interim_Report_of_Task_Force_FINAL2.pdf.
White House Council on Environmental Quality, Interim Framework for
Effective Coastal and Marine Spatial Planning, Interagency Ocean Policy
Task Force. December 9, 2009. Available online at: http://www.whitehouse.gov/sites/default/files/microsites/091209-Interim-CMSP-Framework-Task-Force.pdf.
Wootton, J.T., et al., Dynamic patterns and ecological impacts of
declining ocean pH in a high-resolution multi-year dataset. Proceedings
of the National Academy of Sciences, October 2008, Volume 105, No. 48,
pp 18848-18853.
Dated: March 15, 2010.
Peter S. Silva,
Assistant Administrator for Water.
[FR Doc. 2010-6239 Filed 3-19-10; 8:45 am]
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