Attachment F - EPA Responses to Services’ Input

1 EPA Responses to Services’ Comments and Requests During Informal Consultation on the Approach and Outline for the Biological Evaluation of the 2013 VGP and sVGP

EPA received the following noteworthy comments and requests from the Services on EPA’s proposed outline for this BE as part of informal consultation between the Agencies. The comments and questions were received in th e Spring of 2012. The following document contains answers and explanations to these key comments and questions.

EPA used the best scientific and commercial data available to prepare what we view as a useful and complete evaluation. EPA acknowledges and th anks the Services’ sta ff and management for providing feedback to EPA during the Agency’s de velopment of this BE, which helped refine EPA’s approach.

Comment 1: Add San Francisco as an RAA to capture smelt in the representative species analysis.

Relevant Section in the BE: Section 4.1.6 EPA Response: EPA added San Francisco as an RAA and ensured the Delta Smelt was included in the RAA listed species.

Comment 2: Add a Florida estuary as an RAA to captu re the Johnson Seagrass and coral in the representative species analysis.

Relevant Section in the BE: Section 4.1.7 EPA Response: EPA added Miami as an RAA and ensured the Johnson Seagrass, Staghorn

Coral and Elkhorn Coral were includ ed in the RAA listed species.

Comment 3: Discuss the potential impacts of vessel discharges in intracoastal waterways.

Relevant Section in the BE: Section 5.2.6.1 EPA Response: The impacts are discussed in Section 5.2.6.1. EPA believes the analysis in this section is generally representative of vessel disc harges to intracoastal waterways for two primary

reasons:

• Several of the major water bodi es (e.g., Elizabeth River, Charleston Harbor, Biscayne Bay) that are part of the A tlantic and Gulf intracoastal waterway were considered in developing the receiving characterist ics for the estuary model; and

• Even though a significant amount of vessel tr affic may travel these waters on a daily basis, EPA believes that the daily vessel equivalent population is likely significantly

lower in these waters than in a harbor environment.

Comment 4: Provide a clear crosswalk between representa tive species and all species potentially impacted by vessel discharges covered under the VGP and sVGP.

Relevant Section in the BE: Section 5.2.5, Table 5-11, Appe ndix E, and Table E-1.Attachment F - EPA Responses to Services’ Input

2 EPA Response: The listed sections provide a clear crosswalk between representative species and all species potentially impacted by the incidental discharges authorized under the permits, and the steps are as follows. EPA chose to evaluate th e potential risk to list ed aquatic and aquaticdependent species and their critic al habitats in a subset of re presentative geographical areas (referred to as RAAs) selected to reflect th e major ports of call and types of ecosystems potentially impacted by vessel discharges cove red by the VGP and sVGP. EPA, with much appreciated assistance from the Services, selected seven RAAs for the BE analysis and evaluated risks from vessel discharges to the 82 aquatic and aquatic-dependant spec ies and their critical habitats present in the RAAs . EPA grouped the 82 RAA listed species into 18 taxonomic groups; called listed species taxonomic gr oups. Next, EPA categorized each of the 612 listed species that may be affected by the VGP and sVGP into one of the 18 listed species taxonomic groups and used the in-depth analysis and risk conclusi ons for the RAA listed species taxonomic groups to

inform the effects determinations for the broade r list of all 612 aquati c and aquatic-dependent and their critical habitats that may be affected by the permit actions (see Section 7 of the BE for more discussion).

Comment 5: Provide a transparent analysis for determining which federally listed species are potentially impacted by vessel discharg es covered under the VGP and sVGP.

Relevant Section in the BE: Appendix E EPA Response: To logically and clearly determine th e subset of federally listed species potentially impacted by VGP and sVGP discharg es, EPA narrowed an initial list of over 1,900 federally-listed species provided in the ECOs GIS dataset, by id entifying the aquatic and aquaticdependent species that have more than limited exposure to “waters of the United States” using the following criteria:

• Species is a fully-aquatic species (e.g., fish);

• Species is an aquatic-dependent terrestrial species which has an important life-stage in
aquatic ecosystems (e.g., amphibian);

• Species is an aquatic-dependent terrestrial species which has a substantial portion of its
diet directly from the aquatic environment (e.g., shorebird);

• Species migration pattern include s an aquatic environment; or

• Species critical habitat in cludes or is dependent upon an aquatic environment.

EPA identified a total of 612 aquatic and aquati c-dependent species that may be potentially impacted by the VGP and sVGP.

Comment 6: Provide a clear discussion of how EPA tr ansferred risk conclusions from listed species in the RAAs to all list ed species evaluated for the BE.

Relevant Section in the BE: Section 7 EPA Response: EPA used the listed species taxonomic groups as the link to transfer risk conclusions from listed species in the RAAs to all listed species evaluated in the BE (see discussion for comment 4). EPA used risk conclu sions for the subset of 82 listed aquatic and aquatic-dependent species and their critical habi tats identified in the seven RAAs and species-Attachment F - EPA Responses to Services’ Input

3 specific assessments to inform EPA’s effects anal yses for the full range of 612 listed species that may potentially be impacted by the VGP a nd sVGP. Additionally, EPA conducted species specific analysis on all species that may pot entially be impacted the VGP and sVGP. For example, EPA assessed the concurrence of indivi dual species distributions for the full range of species evaluated in this BE ( 612 listed species) with waters na vigable by vessels covered under the permit actions (see Appendix E) to assess the applicability of risk conclusions from the 82 RAA listed species for pollutants other than ANS. As a result of this analysis, EPA determined that 454 listed species are potential ly exposed to both ANS and all pollutants in vessel discharges covered by the VGP and sVGP. In addition, EPA revi ewed and considered re levant life history, habitat status, constituent element requirement s, principle food sources, and major threat information for all 612 species evaluated in this BE to further refine the effects determinations.

Comment 7 : Discuss the potential synergistic effects of exposure to pollutant mixtures from vessel discharges covered under th e VGP and sVGP on listed species.

Relevant Section in the BE: Section 5.4.2 EPA Response: Evaluating and quantifying the effects of mixtures is challenging as the toxic effects of pollutants in mixture can be less than, greater than, or not appr eciably different than those predicted for the same pollutants singly. Concentration addition is a common method used to assess mixture toxicity; however, this met hod is accurate only when the mixture consists solely of pollutants with the same toxicological mechanism of action such as metals or PAHs. While EPA notes that the low quantities of many of these incidental discharges likely means little potential impact, as an addi tional assessment of th e risk posed to listed aquatic species from incidental discharges from vessels covere d under the VGP and sVGP, EPA calculated the additive toxicity of metals and PAHs in mi xture to assess impacts from vessel discharges.

Comment 8: Discuss how EPA accounted for possible diffe rence in sensitivity between a listed species and surrogate species used in the analysis.

Relevant Section in the BE: Section 5.2.6.3, Section 5.4.1 EPA Response: Although it is not expected that there would be such differences, to account for possible differences in sensitivity between a listed species and its surrogate species, EPA applied a safety adjustment factor of 2.0 to the Agen cy’s criterion continuous concentration when evaluating risk in the quantitative effects analys is to ensure that a ny sensitivity would be adequately captured.

Comment 9: Discuss how EPA considered the issue of changes in ocean buffering related to climate change.

Relevant Section in the BE: Section 5.2.6.1 EPA Response: Exhaust gas scrubber discharges have the greatest potenti al to depress pH values in receiving waters as the discharge can have pH values as low as 3. As discussed in EPA’s economic and benefit analysis for the 201 3 VGP, EPA believes that a maximum of only 5 to 10 percent of effected vesse ls will install this scrubber t echnology by the end of the permit period. We further note that this is likely a high estimate of sy stems which would be used. EPA believes that the concurrence of site-specific ch anges in buffering capacity with a significantAttachment F - EPA Responses to Services’ Input

4 population of vessels discharging exhaust gas scrubber water is highly unlikely to occur. EPA believes that any localized effects caused by direct exposure to an exhaust gas scrubber discharge plume will be brief such that risk effects to listed species considered in the BE are not of

concern.

Comment 10: Discuss how EPA evaluated the potential for pollutant loads from vessel discharges covered under the VGP and sVGP to c ontribute to water quality issues that are known stressors for listed species.

Relevant Section in the BE: Section 4, Section 5.5 EPA Response: Using the best scientific and commercia l data available, including USFWS and NMFS species factsheets, EPA reviewed the known threats for each of the 82 listed RAA species (see Table 4-19) and assessed the potential for permitted vessel discharges to contribute to the known stressors for each species. EPA determined th at 23 of the 82 RAA species are sensitive to water pollution and other related water quality prob lems that could potentia lly originate from or be contributed by incidental vessel discharges covered under the VGP and sVGP; however, none of the species-specific threat information identif ied incidental vessel di scharges as a specific pollution source of concern. As discussed thr oughout Section 4, the RAAs evaluated in the effects analysis are impacted by pollutant sources other than vessel discharg es such as industrial discharges, urban storm water, superfund site s, and agricultural r unoff (see RAA-specific discussions of water quality impairments). Given th at pollutant loads from vessel discharges are comparatively lower than those from other sour ces in the RAAs, and given that the estimated RQs from vessel discharges al one are extremely low, EPA believes that vessel discharges covered under the VGP and sVGP are unlikely the major pollution sources for listed species with identified sensitivities to water pollution.

Comment 11: Discuss potential ways EPA could use monitoring data collected as part of requirements in the VGP and sVGP to improve the BE analysis.

Relevant Section in the BE: Section 5.2.6.1 EPA Response: EPA used the most robust data sources av ailable to develop the pollutant loads used in the modeling anal ysis; however, data gaps exist for cer tain combinations of vessel types, discharges, pollutants, and vesse l populations. Although EPA used best professional judgment to extrapolate the pollutant concentrations and fl ow information among the different vessel types and vessel populations, the extrapolation of informa tion represents a source of uncertainty in the analysis. Data collected as part of the mon itoring requirements proposed in VGP and sVGP will improve the quality of information used for EP A’s future analyses. For example, EPA requires monitoring of ballast water treatment system me trics and certain discharge parameters. EPA can

later use these results to evaluate the whethe r ballast water treatment systems continue to perform after installation, and wh ether we are continuing to meet our objectives of reducing risk from ballast water discharges.

Comment 12: Describe the techniques available for ANS control and include a discussion of the feasibility or infeasibility of each option to doc ument why the control option selected by EPA is the most effective control option that is feasible/reasonable.Attachment F - EPA Responses to Services’ Input

5 Relevant Section in the BE: Sections 6.1.2 and 6.1.3. EPA Response: These issues are addressed in the VGP and sVGP Fact Sheets (see Part 4 of the VGP Fact Sheet). In the BE, options for control of ANS introduction via ballast water discharge are addressed in Section 6.1.2 (Reducing Propagu le Pressure by Ballast Water Management), subsections 6.1.2.1 through 6.1.2.8. Options for cont rol of ANS introducti on via biofouling are addressed in Section 6.1.3 (Reducing Propa gule Pressure by Biofouling Management), subsections 6.1.3.1 through 6.1.3.4. EPA revised the outline and content presented in these sections to address this comment. EPA notes that the Clean Water Act requires effluent limits based upon best available technolo gy, which may be different than how the Services’ defines

“feasible/reasonable.”

Comment 13: Describe overall variabili ty, seasonal and regional f actors influencing propagule

pressure.

Relevant Section in the BE: For ballast water discharge, see Sections 5.1.1.3.1 (Volume and Discharge of Ballast Water), 5.1.1.3.2 (Abundance and Diversity of Organisms in Ballast Water), and especially 5.1.1.3.3 (Variability of Propagule Pr essure from Ballast Water). For biofouling, see Sections 5.1.1.4.1 (Extent of Fouling on Commer cial Vessels), 5.1.1.4.2 (The Relationship of Biofouling to Underwater Ship Husbandry) , 5.1.1.4.3 (Abundance and Diversity of Organisms Entering U.S. Coastal Waters on Vessel Hulls), and especially 5.1.1.4.4 (Var iability of Propagule Pressure from Fouling Organisms). EPA Response: EPA revised the outline and cont ent presented in Sections 5.1.1.3.1, 5.1.1.3.2, 5.1.1.3.3, 5.1.1.4.1, 5.1.1.4.2 , 5.1.1.4.3 and 5.1.1.4.4 to include discussion responsive to these

issues. EPA also directs the Services to the recently completed National Academy of Sciences report referenced in this BE.

Comment 14: Describe other mechanisms for introduc tion of ANS that would be subject to regulation under this action (e.g., anchor system, sea ch est, internal seawater piping system, bilge, etc.).

Relevant Section in the BE: Sections 5.1.1.5 (Other Vessel Disc harges Potentially Harboring ANS), 6.1.3.3 (Management of Biofouling in Seaw ater Cooling Systems) and 6.1.4 (Control of ANS Discharges in Chai n Locker Effluent). EPA Response: Other vessel discharge vectors for ANS in troduction (chain locker effluent, sea chests, seawater cooling systems, and fish hold effluent) are briefly discussed. However, these sources have generally not been identified as pr imary sources of concern onboard vessels, and a profound lack of data regarding these vectors prev ents a meaningful analysis. This opinion is based upon EPA’s review of the most recent and authoritative studies and literature. For example, the 2011 Biennial Report on the Califor nia Marine Invasive Sp ecies Program (Takata et al., 2011) states:

“Commercial ships transport organisms thr ough two primary mechanisms – ballast water and vessel fouling”.

This report goes on address prev ention of ANS introduction via ve ctor management, specifically ballast water management and ve ssel fouling management; other m echanisms of vessel-mediated

ANS introduction are not even mentioned.Attachment F - EPA Responses to Services’ Input

6 Australia’s National System for the Prevention and Management of Marine Pest Incursions published a study of the Relative C ontribution of Vectors to the Introduction and Translocation of Invasive Marine Species (T akata et al., 2006) which identif ied a number of ANS transport

mechanisms in the marine environment that ha ve largely been associated with commerce and exploration. A number of these mechanisms are only relevant historica lly (wooden vessels, dry ballast, etc.). As the authors state:

“While it is believed that these (historical) transport mechanisms have ceased, others have become more apparent (e.g., ballast water)”

Generally, we believe vessel di scharge vectors other than ba llast water and biofouling are

discountable. EPA revised the outline and cont ent presented in Sections 5.1.1.5, 6.1.3.3 and 6.1.4 to include discussion, to the extent information is available, to address this request from the

Services.

Comment 15: Describe the mechanisms by which ANS can affect listed species (e.g., competition, infection, altered food web, predation, biogeochemistry).

Relevant Section in the BE: Section 5.1.1.7.4 (Mechanisms by which ANS Impact Native Species) EPA Response: EPA revised the outline and BE to add S ection 5.1.1.7.4 to be responsive to this request from the Services.

Comment 16: Describe “how” and, as much as possi ble, to what exte nt ballast water treatment/effective hull manageme nt reduces risk from ANS.

Relevant Section in the BE: Section 5.1.1.6.2 (Discharge (Releas e and Inoculation): Propagule Pressure), 6.1.1 (Mitigating Risk of ANS by Reducing Propagule Pressure), 6.1.2 (Reducing Propagule Pressure by Ballast Water Manageme nt) and 6.1.3 (Reducing Propagule Pressure by Biofouling Management). EPA Response: EPA revised the outline and content pres ented in Section 6.1.1 to be responsive to this request from the Services. As discussed in this section of the BE, the risk reductions achieved by ballast water trea tment/effective hull management are fundamentally based on reducing propagule pressure. This is also addressed in Section 5.1.1.6.2. Sections, 6.1.2 and 6.1.3

document the extent to which ballast water trea tment/effective hull management mitigate the risk of ANS invasion. EPA has incorporated requirem ents in the permits for hull management to

reflect these concerns/issues.

Comment 17: Please include other vectors, or provi de reasons why the threats from those

vectors are discountable.

Relevant Section in the BE: See response to Comment 14Attachment F - EPA Responses to Services’ Input

7 EPA Response: See response to Comment 14. Additionally, EPA did not address other nonvessel vectors for ANS introduction (aquaculture, exo tic animal trade, etc.) because these are not within the scope of the VGP or the sVGP.

References

Takata, L. Falkner, M. and S. Gilmore. 2006. Commercial Vessel Fouling in California: Analysis, Evaluation, and Recommendations to Reduce Nonindigenous Species Release

from the Non-Ballast Water Vector. Produced for the California State Legislature by the California State Lands Commission, Marine Facilities Division. Ap ril 2006. Retrieved from http://groups.ucanr.org/Ballast_Outreach/files/25918.pdf.

Takata, L., Dobrowski, N., Scianni, C. and M. Faulkner. 2011. 2011 Biennial Report on the

California Marine Invasive Species Program. Produced for the California State Legislature by the California State Lands Commission, Marine Fa cilities Division. January, 2011.