2010-6239. 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.

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 [phone]. 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 [phone].

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: [phone]; fax number: [phone]; e-mail address: [e-mail].

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) 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).

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 CO₂on the CaCO₃system 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).

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.