[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: WatershedProgram-OWOW@epa.gov.

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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