Endangered Species Act Section 7 Consultation

Programmatic Biological and Conference Opinion on the

U.S. Environmental Protection Agency’s

Proposed Vessel General Permit and Small Vessel General Permit

U.S. Fish and Wildllife Service

End angered Species Program

Arlington

, VirginiaConsultation History

................................ ................................ ................................ ................... 2

DESCRIPTION OF THE P ROPOSED ACTION

................................ ................................ ..... 3

Vessel General Permit (VGP)

................................ ................................ ................................ ..... 4

Discharges to be Authorized by the VGP

................................ ................................ ............... 5

VGP Vessel

- Class

- Specific Requirements

................................ ................................ ........... 24

VGP Inspections, Recordkeeping, Reporting, Compliance, and Enforcement

.................... 30

Small Vessel General Permit (sVGP)

................................ ................................ ....................... 38

Discharges to be Authorized by the sVGP

................................ ................................ ........... 38

sVGP Recordkeeping, Inspections, Compliance, and Enforcement

................................ ..... 45

Addit ional Specific Actions Taken by EPA to Conserve Listed Resources

............................. 47

Reinitiation Clause

................................ ................................ ................................ ................ 47

VGP Requirements

................................ ................................ ................................ ............... 47

sVGP Requirements

................................ ................................ ................................ .............. 48

VGP Compliance

................................ ................................ ................................ .................. 48

sVGP Compliance

................................ ................................ ................................ ................. 49

Monitoring of Stressors (ANS and Pollutants)

................................ ................................ ..... 50

APPROACH TO THE ASSE SSMENT

................................ ................................ .................... 52

OVERVIEW OF FWS’ ASS ESSME NT FRAMEWORK

................................ ...................... 53

Application of this Approach in this Consultation

................................ ................................ ... 57

Evidence Available for the Consultation

................................ ................................ .................. 62

Treatment of “Cumulative Impacts” (in the sense of NEP A )

................................ ..................... 63

ACTION AREA

................................ ................................ ................................ .......................... 64

STATUS OF THE SPECIE S AND CRITICAL HABIT AT AND ENVIRONMENTAL

BASELINE

................................ ................................ ................................ ................................ .. 65

Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action

... 82

Species and Critical Habitat Likely to be Adversely Affected by the Proposed Action

.......... 82

ENVIRONMENTAL BASELI NE

................................ ................................ ............................. 83

The Changing Landscapes of the Uni ted States

................................ ................................ ....... 84Status and Trends of Waters of the United States

................................ ................................ ..... 86

Aquatic Nuisance Species

................................ ................................ ................................ ..... 87

Climate Change

................................ ................................ ................................ ..................... 87

Clean Water Act

................................ ................................ ................................ .................... 90

San Francisco Bay as an Example of the Impact

................................ ................................ .. 91

Integration and Synthesis of the Environmental Baseline

................................ ........................ 92

EFFECTS OF THE PROPO SED ACTION, TRADITIO NAL APPROACH

...................... 93

Vessel Populations Covered by the VGPs

................................ ................................ ................ 94

VGP Vessels

................................ ................................ ................................ ......................... 94

sVGP Vessels

................................ ................................ ................................ ........................ 98

Aquatic Nuisance Species

................................ ................................ ................................ ....... 101

Exposure An alysis

................................ ................................ ................................ .............. 101

Stressors

................................ ................................ ................................ .............................. 111

Response Analysis

................................ ................................ ................................ .............. 112

Extinction and Endangerment as a Result of ANS Invasions

................................ ............. 120

Traditional Pollutants

................................ ................................ ................................ .............. 122

Exposure Analysis

................................ ................................ ................................ .............. 122

Response Analysis

................................ ................................ ................................ .............. 157

EFFECTS OF THE PROPO SED ACTION, PROGRAMM ATIC APPROACH

.............. 183

(1) Scope

................................ ................................ ................................ ................................ . 183

(2) Stressors

................................ ................................ ................................ ............................ 185

ANS

................................ ................................ ................................ ................................ ..... 185

Pollutants

................................ ................................ ................................ ............................. 186

(3) Exposure to potentially harmful impacts

................................ ................................ .......... 188

Uncertainties in Exposure Estimates Id entified by EPA

................................ .................... 188

Services Assessment of Uncertainty in the Exposure Analysis

................................ .......... 189

ANS

................................ ................................ ................................ ................................ ..... 190(4) Monitoring/Feedback

................................ ................................ ................................ ........ 191

(5) Effects on L isted Resources

................................ ................................ .............................. 195

Uncertainty in Effects Analysis Identified by EPA

................................ ............................ 195

Services Assessment of Uncertainty in the Repose Analysis

................................ ............. 197

ANS

................................ ................................ ................................ ................................ ..... 198

(6) Compliance

................................ ................................ ................................ ........................ 198

(7) Adequacy of Controls

................................ ................................ ................................ ........ 204

CUMULATIVE EFFECTS

................................ ................................ ................................ ...... 206

INTEGRATION AND SYNT HESIS

................................ ................................ ....................... 206

CONCLUSION

................................ ................................ ................................ ......................... 210

INCIDENTAL TAKE STAT EMENT

................................ ................................ ..................... 211

Amount or Extent of Take

................................ ................................ ................................ ...... 211

Reasonable and Prudent Measures

................................ ................................ .......................... 212

Terms and Conditions

................................ ................................ ................................ ............. 212

CONSERVATION RECOMME NDATIONS

................................ ................................ ........ 213

REINITIATION NOTICE

................................ ................................ ................................ ....... 213

LITERATURE CITED

................................ ................................ ................................ ............ 214v LIST of TABLES

Table 1. Spe cies Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat in the Action Area. There are 45 Candidates for listing also included and treated herein as “Proposed.”

................................ ................................ ................................ . 65
Table 2. Phenomena associated with projections of global climate change including levels of confidence associated with project ions

................................ ................................ ......................... 89

Table 3. Distribution of vessel service cl asses, equipment, and metrics among VGP covered vessels submitting NOIs and reporting vessel tonnage/bal last water capacity

. ............................ 98
Table 4. Vessel metrics for sVGP eligible vessels with specified l ength less than 79

. ............. 100
Table 5. Vessel service class relative distribution of ballast water capacity reported in the NOI

databa se

. ................................ ................................ ................................ ................................ ...... 106
Table 6. Discharge classes authorized under the Vessels General Permit and small vessels general permit.

................................ ................................ ................................ ............................ 123
Table 7. Copper loading AFC of various vessel service classes

................................ ................. 125
Table 8. Estimated Bilgewater Discharge Rates used in EPAs BE Analyses.

.......................... 126
Table 9. Estimated Bilgewater Pollutant Concentrations used in EPAs Biological Evaluation 127
Table 10. Estimated Deck Washdown Discharge Rates used in EPAs BE Analysis.

............... 128

Table 11. Esti mated Deckwash Pollutant Concentrations used in EPAs Biological Evaluation.

................................ ................................ ................................ ................................ ..................... 129
Table 12. Estimated Propulsion and Generator Engine Wet Exhaust Discharge Rates used in EPAs Analysis.

................................ ................................ ................................ ........................... 130
Table 13. Estimated Engine Wet Exhaust Pollutant Concentrations used in EPAs Biological

Evaluation.

................................ ................................ ................................ ................................ .. 131

Table 14. Estimated Exhaust G as Scrubber Washwater Discharge Rates used in EPAs Analysis

................................ ................................ ................................ ................................ ..................... 132

Table 15. Estimated Exhaust Gas Scrubber Washwater Pollutant Concentrations used in EPAs Biological Evaluation.

................................ ................................ ................................ ................. 133
Table 16. Fish Hold Effluent and Cleaning Efflu ent Discharge Rates

. ................................ ..... 133
Table 17. Estimated Fish Hold and Fish Hold Cleaning Effluent Pollut ant Concentrations used in EPAs Biological Evaluation.

................................ ................................ ................................ .. 135
Table 18. Estimated Graywater Discharge Rates Used in EPAs BE.

................................ ........ 136

Tab le 19. Estimated Graywater Pollutant Concentrations used in EPAs Biological Evaluation.

................................ ................................ ................................ ................................ ..................... 137
Table 20. Estimated Stern Tube Packing Gland Effluent Discharge Rates used in EPAs BE.

. 138
Table 21. Estimated Stern Tube Packing Gland Effluent Pollutant Concentrations used in EPAs Biological Evaluation.

................................ ................................ ................................ ................. 138

Table 22. Dissolv ed Copper Release from Vessel AFSs During an Underwater Hull Cleaning

“Event”

. ................................ ................................ ................................ ................................ ....... 139vi

Table 23. Decision Process for those Vessel Discharges Not Evaluated in EPA's BE.

............ 141
Table 24. RAAs Selected for Exposure Assessment Modeling to Represent Water Bodies and Ecosystems Inhabited by Listed Resources.

................................ ................................ ............... 147

Table 25. Receivin g Water Model Scenarios Assessed by EPA.

................................ .............. 149
Table 26. Estimated Receiving Water Concentrations Resulting from Vessel Discharge Pollutant Loadings Under Estuary Mixing Conditions.

................................ ................................ ............. 151
Table 27. Estimated Receiving Water Concentrations Resulting from Vessel Discharge Pollutant Loadings Under River Mixing Conditions.

................................ ................................ ................ 153

Table 28. Average nutrient concentrations in vessel discharges at levels above screening level

benchmarks

. ................................ ................................ ................................ ................................ 159

Table 29. Generalized steps in ecosystem

- scale methodology for translation of a tissue Se

concentration to a water

- column Se concentration for protection of fish and aquatic

- dependent

wildlife.

................................ ................................ ................................ ................................ ....... 170

Table 30. Equations used to calculate Fish and Bird EC T ’s for the Biologic al Opinion.

.......... 171

Table 31. K d and TTF values used to calculate fish and bird EC T ’s.

................................ ......... 171

Table 32. Application of the Ecosystem

- sca le approach to: a) estimate tissue concentrations of selenium from water concentrations predicted from vessel discharges, and b) calculating risk quotients for sensitive fish and bird species.

................................ ................................ .............. 173U.S. Fish and Wildlife Se rvice Endangered Species Act Section 7 Consultation Biological and Conference Opinion

Agency: United States Environmental Protection Agency

Activities Considered: Proposed issuance and implementation of the Vessel

General Permit and the Small Vessel G eneral Permit, which would authorize discharges incidental to the normal operation of vessels in waters of the United States from 2013 through 2017

Consultation Conducted by: Branch of Consultation and HCPs, Endangered Species Program

, U.S. Fish and Wildl ife Service

Approved by:

__________________________________________________ Paul Souza, Deputy Assistant Director Endangered Species Program

Date:

___________________________________________________

Section 7(a)(2) of the Endangered S pecies Act of 1973, as amended (ESA; 16 U.S.C. 1536(a)(2)) requires Federal agencies to insure that any action they authorize, fund

, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the

d estruction or adverse modification of critical habitat of such species

. When a Federal agency’s action “may affect” a protected species, that agency is required to consult formally with the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wil dlife Service (FWS; together, “ the Services ” ) , depending upon the endangered species, threatened species, or designated critical habitat that may be affected by the action (50 CFR 402.14(a))

. Federal agencies are exempt from this general requirement if the y determine that an action “may affect, but is not likely to adversely affect” endangered species, threatened species, or designated

critical habitat

, and if the Services concur with that determination (50 CFR 402.14(b)).

The U.S. Environmental Protection Agency (EPA) initiated formal consultation with the

Services on EPA’s proposal to authorize discharges incidental to the normal operation of vessels and small vessels into waters of the United States from 2013 through 201 8 under the National

Pollutant Dis charge Elimination System (NPDES) permit program, as aut horized by the Clean

Water Act

. This document represents FWS ’ Biol ogical Opinion (Opinion) on EPA’s issuance and implementation of its Vessel General Permit (VGP) and Small Vessel General Permit (sVGP ; together the VGPs) and their effects on ESA listed and proposed species and critical2

habitat

. This Opinion is based on our review of the EPA’s draft VGPs, EPA’s Biological Evaluation (BE), EPA’s fact sheets

, reviews of the effectiveness of the NPDES prog ram and compliance for existing general permits, Section 7 consultations on Clean Water Act actions

, species status reviews, listing documents, recovery plans, reports on the status and trends of water quality, past and current research and population dyna mics modeling, published and unpublished scientific information

, and other sources of information g athered and evaluated during our consultation on the proposed VGPs

. This Opinion has been prepared in accordance

with section 7 of the ESA , associated implem enting regulations, and agency policy and guidance (50 CFR 402; U.S. Fish and Wildlife Service and NMFS 1998 a ).

Consultation History

On March 30, 2005, the U.S. District Court for the Northern District of California (in Northwest

Environmental Advocates et al. v. EPA ) issued a ruling vacating a long

- standing regulatory NPDES permitting exclusion for vessels

.
On May 7, 2008 EPA requested Sec. 7 consultation with FWS on its planned issuance of a Vessel General Permit for Discharges Incidental to the Normal O peration of Commercial Vessels and Large Recreational Vessels, and a General Permit for Discharges Associated with

Recreational Vessels. On July 18, 2008, FWS delivered notice to EPA determining that its initiation package was insufficient to initiate con sultation.

On July 23, 2008, the Ninth Circuit upheld the District Court’s decision after EPA appealed. On July 31, 2008, Public Law 110

- 299 was signed into law and provided a two

- year moratorium for

non

- recreational vessels less than 79 feet in length an d all commercial fishing vessels regardless of length, from the requirements of NPDES (with the exception of ballast water). This law also directed the EPA to study the impacts of discharges incidental to the normal operation of those

vessels a nd evaluate potential impacts.

On December 18, 2008, EPA finalized the first Vessels General Permit.

On July 30, 2010, the Congressional moratorium initiated by Public Law 110

- 299 was extended by Public Law 111

- 215 until December 18, 2013

. In August 2010, EPA publish ed its final

“ Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non

- Recreational Vessels Less than 79 Feet .” The report noted that many of the pollutants present in the vessel discharges were at end

- of

- pipe concen trations that exceeded an NRWQC; there is the potential for these discharges to contribute a water quality impact on a more localized scale. The study results indicate that total arsenic and dissolved

copper we re the most significant water quality concerns for the study vessels as a whole, as they are more likely than other pollutants to contribute to exceedances of water quality criteria. In 2011, at the request of EPA the National Academies of Sciences published a report on

“ Assessing the Relationship Between Propagule Pressure and Invasion Risk in Ballast Water .” That report noted that data “are not sufficient in present form to characterize a biologically meaningful relationship, much less estimate the associated uncertainty, to be able to identify with confidence the invasion probabilities associated with particular discharge standards.”3

EPA pub lished a draft VGP by on December 8 , 2011 and plans to issue the final VGP by November 30, 2012, one year before the expiration of the current permit.

On November 29

, 2011, EPA initiated informal Section 7 consultation on its proposed 2013

VGPs

. On July 3, 2012, EPA ’s Office of Water requested formal Sec tion 7 consultation on the

draft VGPs. Thei r initiation package included the draft permits, fact sheets, a Biological Evaluation (BE), and responses to the Service’s comments during informal consultation.

As described in a joint letter sent by the Services on August 6, 2012, we confirmed initiat ion of

formal consultation effective July 3, 2012. We also sent our analysis plan, including the

Ser vices’ joint “Approach to the Assessment,” which is included in this Opinion.

BIOLOGICAL AND CONFERENCE OPINION

Description of the Proposed Action

Under the Vessel General Permit (VGP) and the Small Vessel General Permit ( sVGP, together the VGPs), EPA proposes to authorize discharges incidental to the normal operati on of all non

recreational and non

- military vessels into waters of the U.S. The EPA expects that most vessels seeking coverage under the VGP will be greater than 79 feet in length, whereas vessels less than 79 feet may be eligible for coverage under the s VGP, which has less stringent restrictions and fewer reporting requirements. The EPA estimates that approximately 72,000 vessels may be eligible for coverage under the VGP, and an additional 138,000 vessels under the sVGP ( http://www.epa.gov/npdes/vessels ).

The statutory authority for the proposed action is the National Pollution Discharge Elimination System (NPDES) of the Clean Water Act (33 USC 1342 et seq.; CWA). The purpose of the proposed general per mits is to satisfy the goals and policies of the CWA (33 USC 1251). Requiring a CWA permit for these discharges provides EPA with the authority to enforce CWA requirements and provides the ability of citizens to sue for permit violations.

For both permits , EPA includes the follow clause for modification of the permits and reinitiation:

Permit modification or revocation will be conducted according to 40 CFR §§ 122.62, 122.63, 122.64, and 124.5.This permit is subject to modification in accordance with 40 C FR §§ 124.5 and 122.62. Grounds for such modification include receipt of new information that was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of permit issuance. This information would also allow EPA to determine whether to request

re initi ation of formal ESA Section 7 consultation as provided in 50 CFR 402.16 and described in

the VGPs Fact Sheets.4

For the VGP, w ith respect to ballast water discharges, new information that will be considered in determining whether to modify this permit includes, but is not limited to, data or information from permittees, the general public, states, academia, scientific or technica l articles or studies, and results of monitoring conducted under this permit indicating that:

• Treatment technology has improved such that these improved technologies would have justified the application of significantly more stringent effluent limitati ons or other permit conditions had they been known at the time of permit issuance;

• Treatment technologies known of at the time of permit issuance perform better than understood at the time of permit issuance such that this improved performance would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance;

• Scientific understanding of pollutant effects or of invasion biology has evolved suc h that this new information would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance; or

• The cumulative effects of any discharge autho rized by the VGP on the environment are unacceptable.

Vessel General Permit (VGP)

The proposed VGP authorize s discharges incidental to the normal operation of a vessel into

waters of the U.S. The following narrative describes the discharges that will be authorized or prohibited should the EPA issue the VGP. It also describes the activities that EPA w ill require of vessel owners/operators for vessels covered under the VGP, including reporting and compliance requirements.

Unless expressly prohibited, a ll discharges of pollutants into waters of the U.S. incidental to the normal operation of all eligible vessels are eligible to be authorized by the proposed VGP. I n this Opinion

, we assess the effect s of all authorized discharges, which EPA has grouped in to the following broad discharge types :

 Deck Washdown and Runoff, and Above Water Line Hull Cleaning

 Bilgewater and Oily Water Separator E ffluent

 Ballast Water

 Anti

- fouling Hull Coatings/Hull Coating Leachate

 Aqu eous Film Forming Foam (AFFF)

 Boiler/Econom izer Blowdown

 Cathodic Protection

 Chain Locker Effluent

 Controllable Pitch Propeller and Thruster Hydraulic Fluid and other Oil Sea Interfaces

 Distillation an d Reverse Osmosis Brine

 Elevator Pit Effluent

 Firemain Systems5

 Freshwater Layup

 Gas Turbine Washw ater

 Graywater

 Motor Gasol ine and Compensating Discharge

 Non

- Oily Machinery Wastewater

 Refrigeration and Air Condensate Discharge

 Seawater Cooling Overboard Discharge

 Seawater Piping Biofouling Prevention

 Boat Engine Wet Exhaust

 Sonar Dome Discharge.

 U nderwater Ship Husbandry

 Welldeck Discharges

 Graywater Mixed with Sewage from Vessels

 Exhaust Gas Scrubber Washwater Discharge

 Fish H old Effluent

The VGP also contains requirements to address hull foulding, which can result in the discharge of aquatic nui sance species into waters of the US. As vessels move from one area to another, they often carry fouling organisms on their hulls or other exposed surfaces. These organisms may release themselves or gametes into ports, harbors, or waterways. Hull fouling is considered

to be one of the main sources of aquatic nuisance species.

Discharges not authorized by the VGP include: sewage, used or spent oil, garbage or trash, photo processing effluent, dry cleaning effluent, medical waste, noxious liquid substanc e residues, tetrachloroethylene (perchloroethylene) and trichloroethylene degreasers, discharges from vessels not operated as a means of transportation, and discharges cov e red by other permits.

Discharges to be Authorized by the VGP

For vessels covered un der the VGP, EPA require s vessel owners and operators to minimize vessel discharges. They define minimize as to reduce and/or eliminate to the extent achievable using control methods, including best management practices, that are technologically available and economically pract ica ble and achievable in light of best marine practices. They require all vessel owner/operators to ensure adequate training for the master, operator, person

- in

- charge, and crew who manage or affect incidental discharges.

Water Qua lity

- Based Effluent Limits

For vessels c overed under the VGP, EPA require s vessel owners/operators to control their discharges as necessary to meet applicable water quality standards in the receiving water body or another water body impacted by a ves sel’s discharges. The EPA require s corrective actions, as described below, if they or the vessel owner operators become aware that a vessel’s discharges are causing or contributing to an exceedance of applicable water quality standards. They also6

require that t he vessel owners/operators report the exceedence to EPA. Vessel discharges must be consistent with the assumptions and requirements of a specified waste load allocation (WLA)

if the owners/operators discharge to an impaired water with an EPA

- approved or e stablished total maximum daily load ( TMDL ) as indicated by EPA or state TMDL autho rities. EPA will inform vessel owners/operators if such a WLA exists and if any additional limits or controls are necessary for discharges to be consistent with the assumpti ons of any available WLA in the TMDL, or whether an individual permit application is necessary. The EPA and/or state TMDL agencies will inform vessel owners/operators if an applicable TMDL exists either individually or categorically for their vessel or ve ssel class (including disallowing discharges).

Technology

- Based Effluent Limits

For vessels covered under the VGP, EPA will require all vessel owners and operators to meet the effluent limits as described below for each authorized discharge.

Material St orage . For vessels covered under the VGP, EPA require s vessel owners and operators

to minimize the potential for cargoes or materials to blow overboard or dissolve in sea spray by minimizing exposure time and using covered storage areas. The EPA does not authorize the discharge of oil in quantities that may be harmful

, which might otherwise be inconsistent with requirements found in Section 311 or the Clean Water Act or the Act to Prevent Pollution from Ships or under the International Convention for the P revention of Pollution from Ships, 1973 as modified by the protocol of 1978 ( MARPOL 73/78 ). If water draining from storage areas comes in contact with oily materials, the vessel owners and operators must:

 Use dry cleanup methods or absorbents to clean up the wastewater;

 Store the water for onshore disposal; or

 Run water through oily water separator as required by Coast Guard regulations, or other

effective method

Toxic and Hazardous Materials

. For vessels c overed under the VGP, EPA require s vessel

ow ners and operators to minimize the potential for discharge of toxic and hazardous materials as

follows :

 Store toxic and hazardous materials in appropriate sealed containers constructed of a suitable material, labeled, and secured; the containers must not b e overfilled; wastes

should not be mixed

 Locate toxic and hazardous materials in protected areas

 Report any dischanges

Fuel Spills/Overflows . For vessels c overed under the VGP, EPA prohibit s the discharge of oil in harmful quantities (40 CFR Part 110). The VGP does not authorize large

- scale fuel spills or overflows, which are not incidental to the normal operation of the vessel. They require vessel owners and operators to:7

 Conduct fuel operations using control measures and practices designed to minimiz e spills and overflows and ensure prompt containment and cleanup.

 Conduct fueling in a manner that prevents overfilling and release from the system to the

environment.

 For v essels with air vents from fuel tanks, use spill containment or other methods to prevent or contain any fuel or oil spills

 Owner/operators shall ensure that any crew members responsible for conducting fueling operations are trained in methods to minimize spills caused by human error and/or the improper use of equipment

 For fueling of a uxiliary vessels, (e.g., lifeboats, tenders or rescue boats), vessel owners and operators must:

o While fueling, examine the surrounding water for the presence of a visible sheen. If a visible sheen is observed, as a result of your fueling, it must be cleane d up immediately.

o Know the capacity of the fuel tanks before you begin fueling in order to prevent unintentionally overfilling the tank.

o Prevent overfilling and do not top off your fuel tanks.

o When possible, fill fuel tanks while boat is on shore or rec overed from the water.

o When possible, fill portable tanks on shore or on the host vessel, not on the auxiliary

vessel.

o Use an oil absorbent material or other appropriate device while fueling the auxiliary vessel to catch drips from the vent overflow and fuel intake.

o Regularly inspect the fuel and hydraulic s ystems for any damage or leaks, for instance during fueling, when performing routine maintenance on the auxiliary vessel, and/or during deployments for testing.

Deck Washdown and Runoff/Above the Wat er Line Hull Cleaning

. The proposed permit

authorize s the discharge of deck washdown and runoff from deck and bulkhead areas, associated equipment, areas of the hull, and exteriors of the vessel above the water line as a result of precipitation or from wa shing. Pollutant discharges may include residues and any soaps or detergents used for cleaning.

For vessels co vered under the VGP, EPA require s vessel owner/operators to minimize the

introduction of on

- deck debris, garbage, residue, and spill into deck washdown and runoff discharges. They require vessel owner/operators to broom clean exposed decks or use comparable managmenet mea su res to remove all existis debris prior to deck washdown. In addition, EPA requires vessel owner/operators to:

 Minimize th e presence of floating solids, visible foam, halogenated phenol compounds, and dispersants, or surfactants in deck washdowns

 Minimize deck washdowns while in port

 Maintain their topside surface and other areas above water line portions of the vessel to

min imize the discharge of rust (and other corrosion by

- products), cleaning compounds,8

paint chips, non

- skid material fragments, and other materials associated with exterior topside surface preservation

 Minimize residual paint droplets from entering waters sub ject to this permit whenever they are conducting maintenance painting. Minimization techniques include, but are not limited to: avoiding paint spraying in windy conditions or avoiding overapplication of paint. Disposal of unused paint into waters of the U .S. is not permitted under the VGP.

 Deck washdowns or above water line hull cleaning that will result in a discharge must be conducted with biodegradable, “non

- toxic,” and “phosphate free” cleaners and detergents as defined in Appendix A of the VGP. EPA ex pects that soaps that are “minimally” or

non

- toxic will contain little to no nonylphenols

 Where necessary and feasible, machinery on deck must have coamings or drip pans to collect any oily discharge that may leak from machinery and prevent spills. The dri p pans must be drained to a waste container for proper disposal and/or periodically wiped and

cleaned.

Bilgewater/Oily Water Separator Eff l uent. The proposed permit authorize s the discharge of bilgewater and the residues that accumulate therein. These residues may originate from machinery and from deck drainage etc. Pollutant discharges may include seawater, oil, grease, organic compounds, inorganic salts, and metals.

All bilgewater discharges must be in compliance with the regulations in 40 CFR Par ts 110 (Discharge of Oil), 116 (Designation of Hazardous Substances), and 117 (Determination of Reportable Quantities for Hazardous Substances) and 33 CFR §151.10 (Control of Oil

Discha rges). Under the VGP, EPA prohibit s :

 Use of dispersants, detergents, emulsifiers, chemicals, or other substances that remove the appearance of a visible sheen in their bilgewater discharges

 Addition of substances that drain to the bilgewater and are not produced in the normal operation of a vessel

 Use of oil solidifiers, flocculants, or other required additives, unless used as part of an oil water separation system during processing and provided they do not alter the chemical

make

- up of the oils being discharged. The EPA require s vessel owners/operators to minimize any d ischarge of such materials into waters of the U.S.

 Vessel owners/operators must m inimize the discharge of bilgewater by minimizing the production of bilgewater, disposing of bilgewater on shore where adequate facilities exist, or discharging into waters n ot subject to this permit (i.e., more than 3 nautical miles from shore) following regulations under Annex I of the International Convention for the Prevention of Pollution from Ships as implemented by the Act to Prevent Pollution from Ships and U.S. Coast Guard regulations found in 33 CFR part 151.

 For vessels greater than 400 gross tons, the following w ill be prohibi ted:

o Discharge of untreated oily bilgewater

o Discharge of treated bilgetwater within 1nm of shore, if technolog ically feasible (e.g., holding does not impact safety and stability, does not contaminate other holds or9 cargo, or does not interfere with essential operations of the vessel). Any discharge which is not technologically feasible to avoid must be documented and reported to EPA as part of the vessel’s annual report.

o Discharge of treated bilgewater into federally protected waters referenced in Appendix G of the VGP, unless the discharge is necessary to maintain the safety and stability of the ship. Any discharge of bilgewater into these wat ers must be documented and reported to EPA as part of the vessel’s annual report.

o For vessels that regularly sail outside the territorial sea (at least once per month), if treated bilgewater is discharged into waters subject to this permit, it must be

dis charged when the vessel is underway (sailing at speeds greater than 6 kno ts), unless doing so threaten s the safety and stability of the ship. EPA notes that vessel operators may also choose to dispose of bilgewater on shore where adequate facilities

exist. Any discharge

, which is made for safety reasons must be documented and reported to EPA as part of the vessel’s annual report.

For new builds (on or before December 1 9 , 2013), EPA requires electronic submittal of annual oil content monitoring.

Ballast Water

. Ballast water is water taken on to vessels to aid in buoyancy and stability and in increasing or decreasing the vessel’s draft. According to EPA, cruise ships have a typical ballast capacity of 1,000 cubic meters and cargo ships may cont ain up to 93,000 cubic meters. Pollutant discharges from ballast water may include contain rust inhibitors, flocculent compounds, epoxy coating materials and metals. Ballast water may also serve as a vector for biological pollutants including aquatic nuisance spec ies (ANS) and pathogens.

For vess els covered under the VGP, EPA require s vessel owner/operator s to ensure adequate, prompt training for the master, operator, person

- in

- charge, and crew who manage, take part in, or

affect ballast water discharge . All vess el owners/operators are required to maintain a written training plan, including a description of the training, the date of the training, and the names of

those that were trained. They are required to maintain a ballast water management plan developed spec ifically for their vessel that will ensure that those responsible for the plan’s implementation understand and follow the vessel’s ballast water management strategy (i.e., how

the vess el will meet the requirements of the VGP).

The EPA require s owner/oper ator s of vessels with ballast water tanks to:

 Avoid the discharge or uptake of ballast water in Federally Protected Waters (listed in Appendix G of the VGP)

 Minimize or avoid uptake of water in

o Critical habitat of ESA listed species

o Areas known to have in festations or populations of harmful organisms and patho gens (e.g., toxic algal blooms)

o Areas near sewage outfalls

o Areas near dredging operations10

o Areas where tidal flushing is known to be poor or times when a tida l stream is known

to be turbid

o In darkness, when bottom

- dwelling organisms may rise up in the water column

o Where prop ellers may stir up the sediment

o Areas with pods of whales, convergence zones, and boundaries of major currents

 Clean ballast tanks regularly to remove sediments in mid

- ocean (when n ot otherwise prohibited by applicable law) or under controlled arrang ements in port, or at dry dock

 No discharge of sediments from cleaning of ballast tanks is authorized in waters subject to this permit

 When discharging ballast water in port, if the vesse l is equipped with high and low suction within ballast tanks, utilize the high suction for ballast tank discharge to minimize the discharge of entrained sediment. The low suction may be used to strip sediment from

tanks when suitable dis posal facilities ar e available

 Minimize the discharge of ballast water essential for vessel operations while in the waters subject to this perm it

For vessels c overed under the VGP, EPA require s certain vessel owner/operator s to meet the following discharge limits : 1. For organisms greater than or equal to 50 micrometers in minimum dimension: discharge must include fewer than 10 living organisms per cubic meter of ballast water. 2. For organisms less than 50 micrometers and greater than or equal to 10 micrometers:

disc harge must include fewer than 10 living organisms per milliliter (mL) of ballast

water. 3. Indicator microorganisms must not exceed: (i) For Toxicogenic Vibrio cholerae (serotypes O1 and O139): a concentration of less than 1 colony forming unit (c fu) per 100 mL. (ii) For Escherichia coli : a concentration of fewer than 250 cfu per 100 mL. (iii) For intestinal enterococci: a concentration of fewer than 100 cfu per 100 mL.

The EPA will continue to explore new technologies with industry and sta tes, and when warranted, will make this numeric limit more stringent in the future . Additionally, EPA encourages and anticipates, as part of this process, that S tates will continue to work with industry to test and provide opportunities for new technologie s.

The EPA authorizes four methods for meeting the above ballast water discharge limits: ballast water treatment system; onshore treatment of ballast water; use of public water supply; or no discharge of ballast water.

The EPA has established dates b y which vessels, categorized by size and drydock date, are required to use ballast water treatment system s (BWTS) as the best available technology economically achievable. Under the VGP , EPA require s a BWTS which has been shown to be effective by testing in accordance with the EPA

- ETV protocol for the verification of ballast water treatment technology conducted by an independent third party laboratory, test facility or11

test organization. F ollowing installation of a BWTS, EPA require s the master, owner, ope rator, agent, or person in charge of the vessel to maintain the BWTS in accordance with all manufacturer specifications. Furthermore, EPA require s all treatment to be conducted in
accordance with the BWTS manufacturer’s instructions. The BWTS must be used prior to any discharge of ballast water to waters of the U.S. Under the proposed VGP, EPA would require:

 Monthly monitoring of equipment performance to assure the system is fully functional

 Annual calibration of ballast water monitoring equipment

 Biannu al m onitoring from all ballast water systems for selected biological indicators (i.e., heterotrophic bacteria, E. coli , and Enterococci

 Biannual m onitoring of the ballast water discharge itself for biocides and residuals (e.g. chlorine dioxide, chlor ine, o zone, peracetic acid, hydrogen peroxide , etc. ) to assure compliance with the effluent limitations

 Annual electronic submittal of above listed testing results to the EPA

For those vessels whose design and construction safely allows for the transfer of ba l last water to shore, EPA require s vessel owners/operators to ensure that all piping and supporting infrastructure up to the last manifold or valve immediately before the dock manifold connection of the receiving facility or similar appurtenance on a recept ion vessel must be fully free from any leaks or other avenues whereby untreated ballast may be discharged into waters subject to this permit. The EPA notes that transferring ballast water to a treatment barge for eventual treatment and discharge could con stitute “on

- shore treatment” for purposes of this subpart. The discharge of treated ballast water (transferred from other vessels) from a treatment barge is not eligible for coverage under the VGP as this is a dischar ge from an industrial operation , not a discharge incidental to the normal operation of a vessel. Instead, these vessels must apply for individual NPDES permit coverage from the appropriate NPDES permitting authority, generally the State in which they are operating.

For v essels using water fro m a public water supply (PWS) as ballast , EPA require s that vessel owners/operators maintain a record of which PWS they received the water and a receipt, invoice, or other documentation from the PWS indicating that water came from that system.

The EPA req uire s those vessels to use PWS water exclusively for all ballast water to avoid

contamination of the ballast water tank. The EPA require s those vessel s to have either:

 Previously cleaned the ballast tanks (including removing all residual sediments) and n ot subsequently introduced ambient water; or

 Never introduced ambient water to those tanks and supply lines.

The EPA require s v essels utilizing water from a PWS as ballast water to certify in their recordkeeping documentation that they have met all the requirements of this section, including maintaining certification by the master or NOI certifier that one of the two above conditions are met regarding contamination. In the event a vessel that normally uses PWS water as ballast is forced for purposes of v essel safety to take on untreated ballast water from a sea, estuary, lake or river source, EPA prohibit s the vessel from return ing to using PWS water until the tanks and12

supply lines have been cleaned, including removal of all residual sediments.

For cer taiun vessels that are not required to meet the ballast water management measures (i.e., those that leave the US Exclusive Economic Zone and those engaged in Pacific nearshore voyages) , EPA require s the vessel to exchange ballast water as follows:

 The exc hange must occur in waters beyond the U.S. EEZ

 The exchange must occur in an area more than 200 nau tical miles from any shore;

 The exchange must be commenced as early in the vessel voyage as possible, as long as the vessel is more than 200 nm from any sho re.

 For vessels engaged in Pacific nearshore voyages

o Ballast water must occur in waters more than 50 nautical miles from a ny shore (US or otherwise), in waters more than 200 meters deep, prior to discharging ballast water

into waters subject to this permi t.

o Exchange should occur as far from the shore, major estuary and oceanic river plumes, subsurface physical features (e.g. seamounts), and known fishery habitats as practicable.

For those tanks which are empty or contain unpumpable residual water, EPA re quire s vessel owners/operators to either seal the tank so that there is no discharge

, or uptake and subsequent discharge of ballast water within waters subject to this permit or conduct saltwater flushing of such tanks in an area 50 nm from any shore and i n waters at least 200 meters deep prior to the discharge or uptake and subsequent discharge of any ballast water to or from any waters subject to this permit.

Anti

- Fouling Hull Coatings/ Hull Coating Leachate. Vessel hull coatings can contain toxics and may contain biocides designed to prohibit the growth of fouling organisms. These coatings discharge pollutants by leaching toxics into the water. Copper is a common biocide found in hull coatings. Discharges of the biocide tributyltin (TBT) and other o rganotin compounds are not permitted by the proposed permit due to their persistence in the environment and their high toxicity to marine life.

For vessels covered under the VGP, EPA require s vessel owner/operator s to give consideration, as appropriate for vessel class and vessel operations, to the use of hull coatings with the lowest effective biocide release rates, rapidly biodegradable components (once separated from the hull surface), or non

- biocidal alternati ves, such as silicone coatings, a t the t ime of initial application or scheduled reapplic ation o f anti

- fouling coatings. EPA requires that a ll anti

- fouling hull coatings subject to registration under FIFRA (see 40 CFR § 152.15) must be registered, sold or distributed, applied, maintained, and re moved in a manner consistent with applicable requirements on the coatings’ FIFRA label. For anti

- fouling hull coatings not subject to FIFRA registration (i.e., not produced for sale and distribution in the United States), EPA require s that hull coatings m ust not contain any biocides or toxic materials banned for use in the United States (including those on EPA’s List of Banned or Severely Restricted Pesticides). This requirement13

applies to all vessels, including those registered and painted outside the Uni ted States.

Some ports and harbors are impaired by copper, a biocide used commonly in anti

- foulant paints. A complete list of such waters may be found at www.epa.gov/npdes/vessels. When vessels spend considerable time in these waters (defined as spending more than 30 days per year), or use these waters as their home port (i.e., house boats, ferries or rescue vessels), EPA r equire s vessel owners/operators to consider using anti

- fouling coatings that rely on a rapidly biodegradable

biocide or another altern ative rather than copper

- based coatings. If after consideration of alternative biocides, vessel operators continue to use copper

- based antifoulant paints, they must document in their recordkeeping documentation how this decision was reached.

The dischar ge of Tributyltin (TBT) from any source (whether used as a biocide or not) or any other organotin compound used as a biocide is prohibited by this permit. Therefore, vessel owners/operators covered by this permit have a zero discharge standard for TBT (whe ther or not used as a biocide) or any other organotin compound used as a biocide. For vessels c overed under the VGP, EPA prohibit s the use an antifoulant coating containing TBT or any other organotin compound used as a biocide. If the vessel has previously been covered with a hull coating containing TBT (whether or not used as a biocide) or any other organotin compound used as a biocide, vessels must be effectively overcoated so that no TBT or other organotin leaches from

the vessel hull or the TBT or other organotin coating must have been removed from the vessel’s hull. When used as a catalyst, an organotin compound other than TBT (e.g., dibutyltin) is not to be present above 2500 mg total tin per kilogram of dry paint. Furthermore, EPA requires that the

co ating shall not be designed to slough or otherwise peel from the vessel hull. Incidental amounts of coating discharged by abrasion during cleaning or after contact with other hard surfaces (e.g., moorings) are not prohibited by the VGP

.

Aqueous Film Form ing Foam (AFFF)

. Fire fighting foams, known as AFFF , contain

fluo rosurfactants or fluoroproteins . When employed for this purpose, AFFF s are sprayed from hoses and may be discharged into waters of the U.S. Fluorosurfactants compounds are toxic, persisten t in the environment and have been detected in the blood and tissues of humans and wildlife. Fluoroproteins are less toxic than fluorosurfactants and are biodegradable.

For vessels covered under the VGP, EPA authorizes the discharge of AFFF for emergenc y purposes only, when needed to ensure the safety and security of the vessel and crew. They prohibit maintenance and training discharge of fluorinated AFFF for vessels that sail outside of the territorial sea more than once per month (i.e., any such disch arges should be collected and stored for onshore disposal or scheduled when the vessel is outside such waters). Vessel owners/operators must minimize discharge volumes associated with regulatory certification and inspection and a substitute foaming agent ( i.e., non

- fluorinated) must be used if possible within waters of the U.S. For vessels that do not leave the territorial sea more than once per month, maintenance and training discharges of AFFF must be collected and stored for onshore disposal,

unless the vessel uses a non

- fluorinated or alternative foaming agent. For all vessels, maintenance and training discharges are not allowed in port. For all vessels, AFFF discharges

may n ot occur in or within 1 nm of Federally p rotected water s ( Appendix G of the VG P) unless14

they are discharged:

 For emergency purposes;

 By rescue vessels such as fireboats for firefighting purposes; or

 By vessels owned or under contract to do business exclusively in or within 1 nm of those protected areas by the United States governme nt or state or local governments.

If AFFF discharges occur in waters referenced in Appendix G for emergency purposes, a written explanation must be kept in the ship’s log

Boiler/Economizer Blowdown

. For vessels with steam generators or steam propulsion, boiler blowdown is employed to control corrosion and to remove sludge and residue by discharging boiler effluent into waters of the U.S. In addition to sludge and residue, discharges from boilers/economizers may contain chemicals used to reduce impuritie s or prevent scale formation.

For vess els covered under the VGP, EPA require s vessel owners/operators to minimize the discharge of boiler/economizer blowdown in port if chemicals or other additives are used to reduce impurities or prevent scale formation. They would prohibit the dis charge of

boiler/economizer in F ederally protected waters listed in Appendix G of the VGP except for safety purposes. For vessels greater than 400 gross tons

, which leave the territorial sea at least once per week, the EPA wou ld prohibit the discharge of boiler/economizer blowdown in U.S. waters, unless:

 The vessel remains within waters subject to this permit for a longer period than the necessary duration between blowdown cycles;

 The vessel needs to conduct blowdown immediat ely before entering drydock; or

 For safety purposes.

Cathodic Protection

. In order to prevent metal corrosion, two types of cathodic protection are employed: sacrificial anodes and Impressed Current Cathodic Protection (ICCP). Sacrificial

anodes of zi nc or aluminum create a flow of electrons to cathodic metals and prevent them from corroding. Residual zinc or aluminum is then released to the aquatic environment. ICCP employs a direct electrical current into the vessel hull to prevent corrosion.

For vessels c overed under the VGP, EPA require s vessel owner/operators to maintain cathodic protection to pre vent hull corrosion. They require vessel owner/operators to minimize the flaking

of large, corroded portions of zinc, magnesium, and aluminum anodes. T hey require vessel owners to avoid using s acrificial anodes more than necessary to adequately prevent corrosion of the vessel’s hull, sea chest, rudder, and other exposed areas of the vessel. Vessel operators are required to appropriately clean and/or repl ace these anodes during periods of maintenance (such as drydocking), so that release of these metals to waters is minimized. If vessel operators use sacrificial electrodes, EPA require s that they select electrode devices with metals that are less

toxic to the extent technologically feasible and economically practicable and achievable (i.e., magnesium is less toxic than aluminum and aluminum is less toxic than zinc). If a vessel owner/operator selects aluminum, they must document why they made this selection , and why15

use of magnesium is not appropriate. Likewise, if a vessel owner/operator selects zinc, they must document why they did not select magnesium or aluminum. If vessel owners/ operators use Impressed Current Cathodic Protection (which is recommended by EPA), they are required to maintain dielectric shields to prevent flaking.

Chain Locker Effluent

. Chain lockers are the storage areas that contain anchor chains. Water can collect in chain lockers and this effluent may be discharged. Chain locker di scharges may contain toxics such as metals, paint and grease. These discharges may also serve as a vector for biological pollutants including aquatic nuisance species and pathogens.

For vess els covered under the VGP, EPA require s vessel owners/operators to carefully and thoroughly wash down (i.e., more than a cursory rinse) the anchor chain, as it is being hauled out of the water to remove sediment and marine organisms. They require vessel owners/operators to clean chain lockers thoroughly during dry

- dock ing to eliminate accumulated sediments and any potential accompanying pollutants. For vessels that regularly sail outside waters subject to this permit (at least once per month), vessel owners/operators are required to periodically clean, rinse, and/or pum p out the space beneath the chain locker prior to entering waters subject to this permit (preferably mid

- ocean) if the anchor has been lowered into any nearshore waters and if technically feasible . For vessels that leave waters subject to this permit at le ast once per month

, EPA prohibit s vessel owners/operators from rinsing or pumping out chain lockers in waters of the U.S., unless not emptying them would compromise safety, in which case the safety claim must be documented in the vessel’s recordkeeping doc umentation.

Controllable Pitch Propeller and Thruster Hydraulic Fluid and Other Oil

- to

- Sea Interfaces Oil to sea interfaces include any part of a vessel where seals or surfaces may discharge oil into

waters of the U.S. These discharges include lubricati on discharges from paddle wheel propulsion, stern tubes, thruster bearings, stabilizers, rudder bearings, azimuth thrusters, and propulsion pod lubrication, and wire rope and mechanical equipment subject to immersion in

water. Examples include machinery th at uses hydraulic oils or has parts that are lubricated with greases or oils. An additional example is the stern tube. Riggings and cables may also have surfaces that are lubricated with oils or greases and may cause discharges of these substances

into w ate rs of the U.S. As noted by EPA, these discharges can be substantial.

The EPA does not authorize the discharge of any lubricant in a quantity that may be harmful as

defined in 40 CFR Part 110. For vessels covered under the VGP, EPA require s vessel

ow ners/operators to maintain protective seals on oil

- to

- sea interfaces in good operating order to minimize the leaking of hy draulic oil or other oils. V essel owner s /operator s are prohibited from discharging oil in quantities that may be harmful as defined in 40 CFR Part 110 from any oil

- to

sea interface. Vessel owners/operators are required to m inimize maintenance activities on stern tube seals when a vessel is outside of drydock. If maintenance or emergency repair must occur

on stern tubes or other oil

- to

- se a interfaces which have a potential to release oil in quantities that may be harmful as defined in 40 CFR Part 110, appropriate spill response equipment (e.g., oil booms) must be used to contain any oil leakage. The EPA require s o perators of the vessel to have ready access to spill response resources to clean up any oil spills. After applying lubrication16

to wire rope and mechanical equipment subject to immersion, wire ropes, and other equipment must be thoroughly wiped down to remove excess lubricant. For v essels construct ed on or after December 19, 2013, EPA require s the use of an environmentally acceptable lubricant in all oil

to

- sea interfaces. “Environmentally acceptable lubricants” means lubricants that are “biodegradable” and “non

- toxic” and are not “b ioaccumulative” as defined in Appendix A of the

VGP. For v essels built before December 19, 2013, unless technically infeasible, EPA require s owners/operators to use an environmentally acceptable lubricant in all oil to sea inter faces or document and repor t why they are unable to do so and which lubricant was used in their annual
report (submitted electronically to EPA)

.

Distillation and Reverse Osmosis Brine

. Discharges of salt brine can result from seawater

distillation and reverse osmosis activities used to generate freshwater from seawater. In addition to having high salinity, these discharges may cause thermal pollution as well as contain residual chemicals used in the various processes.

For vessels covered under the VGP, EPA prohibit s brine from the distillation system and reverse osmosis reject water from containing or coming in contact with machinery or industrial equipment (other than that necessary for the production of potable water), toxic or hazardous materials, or wastes.

Elevator Pit Eff

luent

. Liquids containing oils, hydraulic fluid and other materials may collect in elevator shaft pits aboard vessels. These liquids may enter waters of the U.S. from simple drainage off the vessel, transference to bilge followed by discharge, or by othe r means.

For vess els covered under the VGP, EPA prohibit s d ischarges of untreated elevator pit effluent within waters of the U.S., except in cases of emergency. They authorize elevator pit effluent to be discharged if it is managed with the vessel’s bilg ewater and meets bilgewater discharge requirements. Otherwis e, they require that it be treated with an oily

- water separ ator and discharged with an oil

- content below 15 ppm as measured by EPA Method 1664 or other appropriate method for determination of oil content as accepted by the IMO (e.g., ISO Method 9377) or U.S. Coast Guard. Vessel owners/operators are required to document emergency discharges.

Firemain Systems

. Firemain systems take up ambient water to supply fire hoses, sprinklers and

other fire suppression systems. These systems may also be used for other purposed such as washing the vessel and equipment, machinery cooling, ballast tank filling etc).

For vess els covered under the VGP, EPA authorize s discharges from firemain systems for

emergen cy purposes to ensure the safety and security of the vessel and her crew and other emergency situations. They authorize testing and inspections of the firemain systems in order to assure its operability in an emergency. They also authorize in port dischar ges from firemain systems for certification, maintenance, and training requirements if the intake comes directly from the surrounding waters or potable water supplies and there are no additions (e.g., AFFF) to the discharge. The EPA authorize s the use of f iremain systems for deck washdown or other17

secondary uses if the intake comes directly from the surrounding waters or potable water supplies and the discharge meets all relevant effluent limitation associated with that activity. They prohibit the di scharge of firemain systems in F ederally protected waters listed in Appendix G of the VGP, except in emergency situations or when washing down the anchor chain to comply with anchor wash down requirements.

Freshwater Layup

. When steam propulsion systems are sh ut down, biological growth can occur within the system. Freshwater layup replaces this water and may result in the discharge of

metals and other contaminants into waters of the U.S.

For vess els covered under the VGP, EPA require s vessel owners/operators to m inimize the amount of disinfection or biocidal agents used in freshwater layup (i.e., the minimum required to prevent aquatic growth).

Gas Turbine Washwater

. Gas turbines must be cleaned to remove materials such as salts and spent lubricants. These materials may be discharged into waters of the U.S. and may also include cleaning agents.

For vessels covered under the VGP, EPA prohibit s the direct d ischarge of gas turbine washwater

w ithin waters of the U.S. They require vessel owners/operators to pr event commingling of gas

turbine washwater and bilgewater, where feasible. They prohibit the discharge of oils, including oily mixtures, from gas turbine washwater in quantities that may be harmful as determined in

accordance with 40 CFR Part 110.

Graywa ter

. Graywater is water that has been used for bathing, in sinks, laundry etc., and may contain pathogens, nutrients, soaps, detergents, and other organic pollutants. Some

– usually large

– vessels collect and store graywater for later treatment and dischar ge. Other vessels discharge untreated graywater directly into waters of the U.S.

For vessels covered under the VGP, EPA require s vessel owners/operators to m inimize the discharge of graywater while in port. For those vessels that cannot store graywater, the owner or operator and their crews are required to minimize the production of graywater in port. Examples of ways to minimize production of graywater include delaying laundry, scullery activities, and restricting length of showers while in port, and usi ng high efficiency faucets and showerheads. Vessel owner/operators are required to minimize the discharge of graywater when the vessel is not underway. Vessels that have the capacity to store graywater are prohibited from discharging graywater in F ederall y protected waters listed in Appendix G of the VGP. For vessels that cannot store graywater, vessel operators must minimize the production of graywater while in those waters. For vessels greater than 400 gross tons that regularly travel more than 1 nm from shore and have the capacity to store graywater for a sufficient period, treated graywater must be discharged greater than 1 nm from shore while the vessel is underway, unless the vessel meets the following treatment standards and requirements:18

 The dischar ge must satisfy the minimum level of effluent quality specified in 40 CFR § 133.102;

 The geometric mean of the samples from the discharge during any 30

- day period may not exceed 20 fecal coliform/100 milliliters (ml) and not more than 10 percent of the sa mples exceed 40 fecal coliform/100 ml; and

 Concentrations of total residual chlorine may not exceed 10.0 micrograms per liter (μg/l).

For vessels that do not travel more than 1 nm from shore, EPA require s vessel owners/operators to minimize the discharg e of graywater and, provided the vessel has available graywater storage capacity, and dispose of graywater onshore, if appropriate facilities are available and such disposal is economically practicable and achievable, unless the vessel meets aboved listed treatment standards and requirements. The vessel owners/operators are required to minimize the introduction of kitchen oils to the graywater system if graywater will be discharged in waters of the U.S. They are required to remove as much food and oil resi due as practicable before rinsing dishes. They are prohibited from adding excess oils used in cooking, including animal fats and vegetable oils, to the graywater system. They are prohibited from discharging galley and scullery oil in quantities that may be harmful as defined in 40 CFR Part 110. Under the VGP, EPA require s vessel owners/operators to use phosphate

- free and non

- toxic soaps and detergents for any purpose if graywater will be discharged int o waters subject to this permit; EPA expects that

non

- to xic soaps will contain little to no nonylphenols. Soaps and detergents must be free from toxic or bioaccumulative compounds and not lead to extreme shifts in receiving water pH (i.e., fall below 6.0 or rise above 9.0 as a direct result of the discharge).

For vessels underway in a nutrient

- impaired water, or a water that is impaired as a result of nutrient enrichment (such as waters listed as impaired for phosphorus, nitrogen, or for hypoxia or anoxia [low dissolv ed oxygen concentrations]), EPA prohibit s di scharge of graywater, if the vessel has adequate graywater storage capacity. If the vessel does not have adequate storage capacity, graywater production and discharge must be minimized and conducted wh ile the vessel is underway and in areas with significa nt circulation and depth, to the extent feasible. For vessels constructed on or after December 19, 2013, EPA require s the vessel owners/operators to take two samples per year, at least 14 days apart, and analyze: Biochemical Oxygen Demand (BOD),

fecal col iform, suspended solids, pH, and total residual chlorine. They require the sampling and testing to be conducted according to 40 CFR Part 136. They require annual reporting, including:

 Date, exact place, and time of sampling or measurements;

 Individual( s) who performed the sampling or measurements;

 Date(s) analyses were performed;

 Individual(s) who performed the analyses;

 Analytical tech niques or methods used and r esults of such analyses

 Whether the graywater effluent is treated or untreated

 Whether t he effluent is graywater alone or if it is mixed with another effluent type (e.g., graywater mixed with sewage).

Motor Gasoline and Compensating Discharge

. Ambient water is taken up onto vessels to19

compensate for weight as motor gasoline is used. This w ater is later discharged into waters of the U.S. and may contain residual oils and other pollutants.

For vessels covered under the VGP, EPA prohibit s the discharge of motor gasoline and compensating effluent containing oil in quantities that may be harm ful as defined in 40 CFR § 110.3, which includes discharges resulting in a visible sheen, or an oil concentration that exceeds 15 ppm. Determination of oil concentration may be measured by EPA Method 1664 or other appropriate method for determination of oi l content as accepted by the IMO (e.g., ISO Method 9377) or U.S. Coast Guard. The EPA authorize s c ompliance with the 15 ppm oil concentration

limitation as established by visual monitoring for an oily sheen. They also require vessel owner/operators to mini mize discharge of motor gasoline and compensating discharge in port. If an oily sheen were observed, the vessel operator is required to deploy appropriate oil containment practices. The EPA prohibit s motor gasoline and compensating discharges in

Fed erally protected waters (Appendix G, VGP).

Non

- Oily Machinery Wastewater

. Non

- oily machinery wastewater systems contain water that does not come into contact with machinery that uses oil. Examples include distillers, condensate drains, pump drains, potable wat er tank overflows and leaks from propulsion shaft seals. These wastewater systems may result in discharges of various pollutants into waters of the U.S.

For vess els covered under the VGP, EPA require s non

- oily machinery wastewater to be free from oils (i n quantities that may be harmful pursuant to 40 CFR Part 110) and any additives that are toxic or bioaccumulative in nature, if discha rged directly overboard. They permit non

- oily machinery wastewater to be drained to the bilge.

Refrigeration and Air C ondensate Discharge

. Condensation from refrigeration or air condition systems may discharge into waters of the U.S. and may contain detergents, metals and other pollutants.

For vessels covered under the VGP, EPA prohibit s the discharge of refrigeration a nd air condensate, if it had come into contact with oily or toxic materials. They permit the discharge of refrigeration and air conditioning condensate that is collected and plumbed for internal recycling (e.g., recycled as “technical water”) which has c ommingled with oily water if the commingled discharge meets the discharge requirements for oily mixtures and oily water separator effluent.

Seawa ter Cooling Overboard Discharge. Seawater cooling systems circulate ambient water through an enclosed system and may be discharged into waters of the US. These discharges may contain hydraulic fluid, lubricating oil and metals and may also be of higher than ambient temperature. These discharges include non

- contact engine cooling water; hydraulic system cooling water, refrigeration cooling water.

For vessels covered under the VGP, EPA require s vessel owner/operators to maintain all piping and seawater cooling systems must meet the requirements as described below.20

Seawater Piping Biofouling Prevention

. Seawate r cooling systems may contain anti

- fouling compounds. These compounds may be discharged into waters of the U.S.

For vessels covered under the VGP, EPA require s vessel owner/operators to use s eawater piping biofouling chemicals subject to FIFRA regi strati on (see 40 CFR § 152.15) in accordance with their FIFRA label. They prohibit the discharge of pesticides or chemicals banned for use in the U.S. They require vessel owner/operators to use the minimum amount of biofouling chemicals needed to keep fouling u nder control and discharges containing active agents to contain as little chlorine as possible. Vessel owner/operators are required to remove fouling organisms from seawater piping on a regular basis (though regular is not defined) and dispose of removed

s ubstances in accordance with local, state, and federal regulations. The EPA prohibit s the discharge of r emoved fouling organisms into waters of the U.S.

Boat Engine Wet Exhaust

. Boat engines use ambient water for cooling and noise reduction.

This wet engine exhaust is discharged into waters of the U.S. and may contain various pollutants.

For vess els covered under the VGP, EPA require s vessel owner/operators to maintain vessel engines generating wet exhaust, ensuring that they are in good operating ord er, well tuned, and function according to manufacturer specifications to decrease pollutant contributions to wet

exhaust. The EPA recommend s that vessel owner/operators use four stroke engines instead of two stroke engines for vessels generating wet exhaus t. For vessel owner/operators who use two stroke engines , EPA require s the use of environmentally acceptable lubricants (as defined in Appendix A of the VGP ), unless technologically infeasible, in which case the vessel owner/operator must document why they are not using environmentally acceptable lubricants.

Sonar Dome Discharge

. Sonar equipment may discharge water that contains metals and antifouling compounds.

For vess els covered under the VGP, EPA prohibit s the discharge of water inside the sonar dome for maintenance purposes. They prohibit the vessel owner/operators from using biofouling

chemicals that are bioaccumulative for the exterior of sonar domes when non

- bioaccumulative

alternatives are available.

Underwater Ship Husbandry Discharges

. Underw ater ship husbandry is the maintenance and repair associated with vessel hulls while in water. This can result in the discharge of various pollutants used in repair and maintenance as well as the discharge of antifouling paints used on

the hull. In addit ion, these activities may be a source of introduction of aquatic nuisance species.

Vessel hull coatings can contain toxics and may contain biocides designed to prohibit the growth of fouling organisms. These coatings discharge pollutants by leaching toxi cs into the water. Copper is a common biocide found in hull coatings. Discharges of the biocide tributyltin (TBT) and other organotin compounds are not permitted by the proposed permit due to their persistence in the environment and their high toxicity t o marine life.21

For vess els covered under the VGP, EPA require s vessel owners/operators to minimize the transport of attached living organisms when traveling into U.S. waters from outside the U.S. economic zone or between Captain of the Port (COTP) zones . If vessel owners and operators use

water pressure

- based systems to clean the hull and remove old paint, they must use facilities which treat the washwater prior to discharging to waters subject to this permit in order to remove the antifouling compound(s ) and fouling growth from the washwater. If they use mechanical means (scraping, etc.) to clean the hull and remove old paint, the materials removed from the hull during that process must be collected, disposed of properly (e.g., onshore), and not be

allow ed to contaminate nearby waters. The EPA require s v essel owners/operators who remove fouling organisms from hulls while the vessel is waterborne to employ methods that minimize the discharge of fouling organisms and antifouling hull coatings, including:

 Us e of appropriate cleaning brush or sponge rigidity to minimize removal of antifouling coatings and biocide releases into the water column;

 Limiting use of hard brushes and surfaces to the removal of hard growth; and

 When available and feasible, use of va cuum or other control technologies to minimize the release or dispersion of antifouling hull coatings and fouling organisms into the water

column.

The EPA require s vessel owners/operators to minimize the release of copper

- based antifoulant paints during vessel cleaning operations. They require c leaning of hull surfaces coated with

copper

- based antifoulant paint that would not result in any visible cloud or plume of paint in the water; if a visible cloud or plume of paint develops, they require vessel owne rs/operators to shift to a softer brush or less abrasive cleaning technique. A plume or cloud of paint can be noted by the presence of discoloration or other visible indication that is distinguishable from hull growth or sediment removal. Production of a p lume or cloud of sediment or hull growth is normal in some cases during vessel hull cleaning, but this plume or cloud must be substantially paint free (e.g., paint should not be clearly identifiable in the plume or cloud). The EPA requires owners/operators to minimize the release of fouling organisms and antifouling systems (including copper

- based coatings) into surrounding waters. They require vessel owners/operators to minimize hull husbandry in critical habitat for aquatic species. Vessels that use copp er

- based

anti

- fouling paint must not clean the hull in copper

- impaired waters within the first 365 days after paint application unless there is a significant visible indication of hull fouling. EPA maintains a list of copper

- impaired waters on its webpage at www.epa.gov/npdes/vessels. If vessel owners or operators clean before 365 days in copper

- impaired waters, they must document in their recordkeeping documentation why this early cleaning was necessary.

Welldeck Discharges

. The welldeck is a platform us ed for launching or loading boats and cargo. Discharges from welldecks may include pollutants from equipment washing, and oils and other materials associated with engines and machinery.

For vessels covered under the VGP, EPA prohibit s welldeck discharges from washdown of gas turbine engines. Welldeck discharges from equipment and vehicle washdowns must be free from22

garbage and must not contain oil in quantities that may be harmful as defined in 40 CFR Part

110.

Graywater Mixed with Sewage from Vessels

. Except for commercial vessels in the Great Lakes, discharges of graywater that contain sewage are eligible for coverage under the VGP and must meet additional effluent limits as described in the permit as well as any additional requirements applicable to sewage discharges outside of the VGP.

For vessels covered under the VGP, EPA require s that commingled discharge of graywater and sewage must comply with the effluent limits for graywater discharge and meet the requirements

set forth in section 312 of the CWA.

Exhaust Gas Scrubber Washwater Discharge

. Exhaust Gas Scrubber washwater discharges (EGS washwater discharge) occur from exhaust gas cleaning systems on diesel engines. Some pollutants are transferred to the vessel’s sludge tank, but the remainde r may be discharged into

waters of the U

. S

. and may contain selenium, nutrients, oils, polycyclic aromatic hydrocarbons (PAHs) and metals, and may have a different pH than receiving waters.

For vessels cov ered under the VGP, EPA p rohibit s the discharge of exhaust gas scrubber washwater containing oil, including oily mixtures, in quantities that may be harmful as determined in accordance with 40 CFR Part 110. They prohibit the discharge of sludge or residues generated in treating exhaust gas scrubber washwa ter discharge and require these discharges to be delivered ashore to adequate reception facilities. In addition, vessel

owner s /operators with exhaust gas cleaning systems that result in washwater discharges must

meet the numeric effluent limits and the mo nitoring requirements below :

 The discharge washwater from the exhaust gas scrubber treatment system must have a pH of no less than 6.5 measured at the ship’s overboard discharge, with the exception that during maneuvering and transit, the maximum differe nce between inlet and outlet of 2.0 pH units is allowed.

 The maximum continuous PAH ( Polycyclic Aromatic Hydrocarbons) concentration in the washwater must not be greater than 50 μg/L PAHphe (phenanthrene equivalence)

above the inlet water PAH concentratio n for washwater flow rates normalized to 45 t/MWh. MWh refers to the maximum continuous rating (MCR) or 80 percent of the power rating of the fuel oil combustion unit. For the purposes of this criterion, the PAH

concentration in the washwater must be measu red downstream of the water treatment equipment, but upstream of any washwater dilution or other reactant dosing unit, if used, prior to discharge. The 50

- μg/L limit is adjusted upward for lower washwater flow rates per MWh, and vice

- versa, and the specifi c permit limits are listed in the VGP.

 The washwater treatment system must be designed to minimize suspended particulate matter, including heavy metals and ash. The maximum turbidity (monitored continuously) in washwater must not be greater than 25 FNU (f ormazin nephelometric units) or 25 NTU (nephelometric turbidity units) or equivalent units, above the inlet water turbidity. However, during periods of high inlet turbidity, the precision of the23

measurement device and the time lapse between inlet measureme nt and outlet measurement are such that the use of a difference limit is unreliable. Therefore, all turbidity difference readings must be a rolling average over a 15

- minute period to a maximum of 25 FNU or NTU. For the purposes of this criterion, the turbi dity in the washwater must be measured downstream of the water treatment equipment but upstream of washwater dilution (or other reactant dosing) prior to discharge. For a maximum of

one 15

- minute period within any 12

- hour period, the continuous turbidity d ischarge limit may be exceeded by 20 percent.

 The washwater treatment system must prevent the discharge of nitrates, plus nitrites beyond that associated with a 12 percent removal of NO x from the exhaust, or beyond 60 mg/l normalized for washwater dischar ge rate of 45 tons/MWh, whichever is greater. MWh refers to the MCR or 80 percent of the power rating of the fuel oil combustion unit. For the purposes of this criterion, the nitrate concentration in the washwater must be

measured downstream of the water t reatment equipment, but upstream of any washwater dilution or other reactant dosing unit, if used, prior to discharge. The 60

- mg/L limit is adjusted upward for lower washwater flow rates per MWh, and vice

- versa, and the applicable permit limits are listed in the VGP.

 The data recording system must comply with the guidelines in sections 7 and 8 of MEPC.184(59) and must continuously record pH, PAH, and turbidity.

 When the EGC system is operated in waters subject to this permit, the washwater monitoring and r ecording must be continuous. The values monitored and recorded must include pH, PAH, turbidity, and temperature.

 The pH electrode and pH meter must have a resolution of 0.1 pH units and temperature compensation. The electrode must comply with the requireme nts defined in BS 2586 or of equivalent or better performance and the meter should meet or exceed BS EN ISO

60746

- 2:2003.

 The PAH monitoring equipment must be capable of monitoring PAH in water in a range of at least twice the discharge concentration limit given in the table above. A demonstration must be made that the equipment operates correctly and does not deviate more than 5 percent in washwater with turbidity within the working range of the application. For those applications discharging at lower flow rates and higher PAH concentrations, ultraviolet light monitoring technology or equivalent should be used due to its reliable operating range.

 The turbidity monitoring equipment must meet requirements defined in ISO 7027:1999

or USEPA 180.1.

 All continuou s monitoring equipment must be calibrated as recommended by probe manufacturers or Exhaust Gas scrubber manufacturers. At a minimum, all probes must be calibrated at least annually.

 In addition to the continuous monitoring, vessel owner/operators must col lect and analyze one sample per quarter for each of the following analytes to demonstrate treatment equipment maintenance, probe accuracy, and compliance with this permit. Records of the sampling and testing results must be retained onboard for a period of 3 years.24

o Dissolved and Particulate Metals, including Aluminum, Antimony, Arsenic, Cadmium, Chromium, Copper, Lead, Manganese, Nickel, Selenium, Thallium, and

Zinc

o Vessel owners/operators should have selenium analyzed using methods capable of accurately me asuring selenium in saline samples (e.g., Octopole Reaction Cell ICP

MS or Hydride generation AA methods or other methods which reduce matrix interference for selenium)

o PAHs including Acenaphthylene, Acenaphthene, Anthracene Benz[ a ]anthracene, Benzo[ ghi ]pe rylene, Benzo[ a ]pyrene, Benzo[ b ]fluoranthene +, benzo[k]fluoranthene, Chrysene, Dibenz[ a,h ]anthracene, Fluoranthene, Fluorene, Indeno[1,2,3, c,d ]pyrene, Naphthalene, Phenanthrene, and Pyrene

o Nitrates

o pH

o Turbidity

o Temperature

o Dissolved Oxygen

 Vessel owners /operators are required to submit monitoring data to EPA annually; all monitoring data must be submitted electronically unless exempted

Fish Hold Effluent

. Fish hold effluent is the seawater, ice

- melt or ice slurry from fish hold tanks and may be dischar ged into waters of the US. These discharges may contain biological wastes, metals, nutrients, detergents and disinfectants.

For vess els covered under the VGP, EPA require s vessel owners/operators to minimize the discharge of fish hold water and/or ice wh ile in port. They prohibit the discharge of unused bait overboard , unless that bait was caught in the same water body or watershed. The discharged of unused bait purchased from a bait shop or dealer is prohibited. The EPA require s all reasonable
steps to be taken to prevent the discharge of excess fish hold water and ice while the vessel is stationary at the pier. If fish waste is contained in the fish hold effluent, they prohibit fish hold

effluent f rom being discharged while in port, unless a physical s eparation method is used (e.g., filters or removal of residuals). They prohibit t he discharge of fish hold effluent (including dirty ice) if unloading catch at a land

- based seafood processing facility or pier. They prohibit t he discharge of fish hold effl uent (including dirty ice) if a shore

- based discharge facility is available and meets the following standards:

 Its use is economically achievable, and

 The facility has a valid NPDES permit, or

 That facility discharges to an NPDES

- permitted sewage treatment facility.

VGP Vessel

- Class

- Specific Requirements

Large and Medium Cruise Ships (1 00 people or more)25

Graywater Management. The EPA require s vessel owners/operators to use appropriate onshore reception facilities for graywater while their vessel is piers ide unless they meet stringent treatment requirements found in the VGP

. If such facilities are not reasonably available and the

vessel does not have the capacity to treat graywater

, EPA requires the vessel to hold the graywater until the vessel is underwa y and not in waters subject to the sVGP

. The EPA considers

a pprop riate reception facilities those authorized for use by the port authority or local municipality and that treat the discharge in accordance with its NPDES permit. The EPA prohibit s the dischar ges of untreated graywater from all large cruise ships and most medium cruise ships while operating within 3nm from shore.

While operating in nutrient

- impaired waters, EPA require s large cruise ship operators to:

 Not discharge any graywater in nutrient

- impaired waters subject to this permit unless the length of voyage in that water exceeds the vessel’s holding capacity for graywater; and

 Minimize the discharge of any graywater into nutrient

- impaired waters subject to this permit, which may require minim izing the production of graywater; and

 I f a vessel’s holding capacity for graywater is exceeded, treat such excess graywater (above the vessel holding capacity) by a device to meet the standards prior to discharge

into nutrient

- impaired waters subject to the VGP ; or

 Dispose of the graywater at an onshore facility

, which will discharge the effluent under a valid NPDES permit.

Graywater Treatment Standards. For large cruise ships, EPA require s treated graywater discharges to meet the following standards: 1. The discharge must satisfy the minimum level of effluent quality specified in 40 CFR § 133.102; 2. The geometric mean of the samples from the discharge during any 30

- day period may not exceed 20 fecal coliform/100 milliliters (ml) and not more than 10 percent of the samples may exceed 40 fecal coliform/100 ml; and 3. Concentrations of total residual chlorine may not exceed 10.0 micrograms per liter (μg/l).

The EPA require s quarterly monitoring of graywater (results to be submitted to EPA annually)

for:

 BOD, fecal coliform, suspended solids, pH, and total residual chlorine

 E. coli , total phosphorus, ammonia, nitrate/nitrite, and total Kjeldahl nitro gen

Sculleries and Galleys. For large cruise ships, EPA require s the use soaps and detergents that are phosphate

- free, non

- toxic, and biodegr adable ; EPA expects that non

- toxic will contain little to no nonylphenols

. They require non

- toxic d egreasers if discharged as part of any waste stream.

Other Materials. For large cruise ships, EPA require s that vessel owners/operators prevent26

w aste from mercury

- containing products, dry cleaners or dry cleaner condensate, photo processing labs, medical sinks or f loor drains, chemical storage areas, and print shops using

traditional or non

- soy

- based inks and chlorinated solvents from entering the ship’s graywater, blackwater, or bilgewater systems if water from these systems will be discha rged into waters of

the U. S

. The EPA recommends p reventing these wastes from entering these systems by plugging all drains that flow to the graywater, blackwater, or bilge systems in areas where these wastes are produced and creating alternate waste receptacles or replumbing drains to appropriate holding

tanks. The EPA prohibit s v essel owners/operators from di scharging any toxic materials, including products containing acetone, benzene, or formaldehyde into salon and day spa sinks or

floor drains if those sinks or floor drains lead to any system which will be discharged into waters

of the U.S . This includes using these materials on passengers (or crew) and rinsing residuals into these sinks. Alternate waste receptacles or holding tanks are required to be used for these

materials. The EPA consider s a ddition of these materials to any systems which will discharge

into waters of the U.S. to be a permit violation.

Pool and Spa Discharges . For large cruise ships, EPA prohibit s d ischarges of pool or spa water

to Federally protected waters ( listed in Appendix G of the VGP). The EPA authorize s d ischarges from pools and spas are author ized into non

- Appendix G waters , provided pool and spa water to be discharged is dechlorinated and/or debrominated, and discharge occurs while the vessel is

und erway. To be considered dechlorinated, the total residual chlorine in the pool or spa effluent must be less than 100 μg/l if the pool or spa water is discharged without going through an Advanced Wastewater Treatment System (AWTS). To be considered debromin ated, the total residual oxidant in the pool or spa effluent must be below 25 μg/l if the pool or spa water is discharged without going through an AWTS. The EPA allow s p ool and spa water to be added to the graywater treatment systems; however, any resulta nt discharge must meet all standards and requirements found in the VGP and must be dechlorinated and/or debrominated as applicable.

Monitoring Requirements

. For large cruise ships, EPA require s that vessel owners/operators report the discharge of untrea ted graywater to waters of the U.S. For treated graywater, EPA require s the following of vessel owners/operators:

 D emonstrate an effective treatment system if discharging graywater within 3 nm of shore.

 T ake at least five (5) samples from the vessel on different days over a 30

- day period that are representative of the treated effluent to be discharged.

 For initial monitoring, take samples for BOD, fecal coliform, suspended solids, pH, total residual chlorine, E. coli , total phosphorus (TP), ammonia, ni trate/nitrite, and Total Kjeldahl Nitrogen (TKN).

 Retain records onboard for three years

 For maintenance monitoring, collect and analyze one sample per quarter

 Submit data showing that the graywater standards are achieved by their treatment system

to EPA ’s e

- reporting system

 M aintain records estimating the quantity and quality of all discharges of treated graywater into waters subject to this permit, including date, location and volume discharged, and pollutant concentrations monitored in their recordkee ping27

documentation. These records shall be maintained as part of or in combination with the vessel’s sewage and graywater discharge record book required under 33 CFR § 159.315.

Even if owners/operators have demonstrated t heir systems meet the standards, EPA, its authorized representative, or the U.S. Coast Guard retains the right to sample their graywater

effluent. If EPA find s that they are not meeting these standards, the y will hold the cruise ship owners/operators liable for violating their effluent l imits.

For large cruise ships, EPA require s that vessel owners/operators monitor and record chlorine or bromine concentrations (as applicable) in pool or spa water before every discharge event using sufficiently sensitive 40 CFR Part 136 methods if they will discharge these streams directly into waters subject to this permit to ensure that the dechlorination/de bromination process is complete.

For large cruise ships, EPA require s that vessel owners/operators to provide the following

educational and trai ning requirements to ship personnel:

 The ship’s crew members who actively take part in the management of a discharge or who may affect any discharge must receive training regarding shipboard environmental procedures and must be able to demonstrate profici ency in implementing these procedures;

 Advanced training in shipboard environmental management procedures must be provided for those directly involved in managing specific discharge types or areas of the ship and

these crew members must be able to demonst rate proficiency in implementing these procedures; and

 Appropriate reprimand procedures must be developed for crew whose actions lead to violations of any effluent limit set forth in this permit or procedures established by the cruise ship operator to min imize the discharge of pollutants.

The EPA also require s large c ruise ships to educate passengers on their potential environmental impacts. The goals of these education efforts must include preventing trash from entering any waste stream, eliminating the addition of unused soaps, detergents, and pharmaceuticals to the graywater or blackwater systems, and minimizing production of graywater. This can be accomplished in a variety of ways including, but not limited to, posting signage and

informational materi al in guestrooms and common areas, incorporating environmental information passenger orientation presentations or packages at the start of cruises, incorporating this information into additional lectures and seminars, or broadcasting information via loudsp eakers.

Large Ferries Ferries are vessels for hire that are designed to carry passengers and/or vehicles between two ports, usually in inland, coastal, or near

- shore waters. “Large Ferry” means a “ferry” that: a) has a capacity greater than or equal to 1 00 tons of cargo (e.g., for cars, trucks, trains, or other land

based transportation); or b) is authorized by the U.S. Coast Guard to carry 250 or more people.28

All large ferries authorized to carry 100 or more tons of cars, trucks, trains, or other land

- ba sed transportation must meet the deck water and education/training requirements . Large ferries authorized by the Coast Guard to carry 250 or more people must meet the graywater and education/training requirements

.

The EPA prohibit s l arge ferries from dis charging untreated below deck water from parking areas or other storage areas for motor vehicles or other motorized equipment into waters of the U.S. without first treating the effluent with an oily water separator or other appropriate wastewater

treatment system. The EPA require s l arge ferry operators to use oil absorbent cloths or other appropriate spill response resources to clean oily spills or substances from deck surfaces. Any effluent created by washing the decks may not be discharged into Federally protected waters listed in Appendix G of the VGP

.

The EPA require s pierside ferries to discharge graywater using appropriate onshore reception

facilit ies , if available and their use is economically achievable, unless the vessel treats graywater

to the li mits found in the VGP . If such facilities are not available, they require the owners/operators to hold the graywater if the vessel has the holding capacity and discharge the effluent while the vessel is underway. Appropriate reception facilities are those authorized for use by the port authority or municipality and that treat the discharge in accordance with its NPDES permit. The EPA require s large ferries operating within 3 nm from shore to discharge graywater only while sailing at a speed of at least 6 knots if feasible. If not feasible, EPA require s documentation

.

The EPA require s ferry operators to do the following :

 The ship’s crew members who actively take part in the management of the discharge or who may affect the discharge must receive training regarding shipboard environmental procedures and must be able to demonstrate proficiency in implementing these procedures;

 Advanced training in shipboard environmental management procedures must be provided for those directly involved in managing specifi c discharge types or areas of the ship and these crew must be able to demonstrate proficiency in implementing these procedures;

and

 Appropriate reprimand procedures must be developed for crew whose actions lead to violations of any effluent limit set fort h in this permit or procedures established by the ferry operator to minimize the discharge of pollutants.

 Ferry operators must also educate passengers on their potential environmental impacts. The goals of these education efforts should include eliminatin g the discharge of trash overboard, minimizing the production of trash from parking areas or other storage areas, eliminating the addition of unused soaps, detergents, and pharmaceuticals to the graywater or blackwater systems, and minimizing production of graywater. This can be accomplished in a variety of ways including, but not limited to, posting signage and informational material in common areas, incorporating environmental information into orientation presentations, or broadcasting information via lou dspeakers.29

Barges For barges, EPA require s owners/operators to:

 Minimize the contact of below deck condensation with oily or toxic materials and any materials containing hydrocarbon. Whenever barges are pumping water from below deck, the discharge shall not contain oil in quantities that may be harmful as defined in 40 CFR Part 110. If a visible sheen is noted, vessel operators must initiate corrective action and meet the recordkeeping requirements in the VGP.

 Have spill rails and must mechanically plug their scuppers before any cargo operations if required by vessel class society and/or 33 CFR Parts 155 and/or 156. Additionally, scuppers, when available, must be mechanically plugged during fueling of ancillary equipment (e.g., generators and compressors ) located on the deck of the barge. If scuppers are unavailable, other types of secondary containment should be employed. If any spills result during loading or unloading of cargo, or other ancillary equipment fueling operations, vessel owners/operators mu st completely clean up spills or residue before scuppers are unplugged.

 Clean out cargo residues (i.e., broom clean) such that any remaining residue is minimized before washing the cargo compartment or tank and discharging washwater overboard.

 C onduct a visual sheen test a fter every instance of pumping water from areas below decks, or immediately following w ashing down the decks . The visual sheen test is used to detect free oil by observing the surface of the receiving water for the presence of an oily

sh een. If a visible sheen is observed, EPA requires the owner/operator to initiate

corrective actions and meet recordkeeping/reporting requirements of the VGP

.

Oil Tankers, Petroleum Tankers, and Bulk Chemical Carriers Under the VGP, the EPA authorizes th e discharges of water from deck seals if the seals are installed as an integral part of an IGS system. For vessels which have an inert gas system, EPA authorizes the discharge of effluent produced from inert gas scrubbers (IGS) into waters of the

U.S. T hey require owners/operators of oil tankers to plug scuppers during cargo loading and unloading operations to prevent the discharge of oil into waters subject to this permit. Any oil spilled must be cleaned with oil absorbent cloths or another appropriate approach. Additionally, owners/operators of oil tankers must comply with applicable requirements of 33 CFR § 155.310 and 33 CFR Part 156, Subpart A. Vessel owners/operators must minimize the discharge of effluent produced from inert gas scrubbers if feasib le for their vessel design. The EPA require s operators to c onduct a visual sheen test a fter every instance of pumping water from areas below decks, or immediately following w ashing down the decks . The visual sheen test is used to detect free oil by observi ng the surface of the receiving water for the presence of an oily sheen. If a visible sheen is observed, EPA requires the owner/operator to initiate corrective actions and meet recordkeeping/reporting requirements of the VGP

. The EPA also require s tankers to do the following :

 The ship’s crew members who actively take part in the management of the discharge or who may affect the discharge must receive training regarding shipboard environmental procedures and must be able to demonstrate proficiency in imple menting these procedures;30

 Advanced training in shipboard environmental management procedures must be provided for those directly involved in managing specific discharge types or areas of the ship and these crew must be able to demonstrate proficiency in i mplementing these procedures;

and

 Appropriate reprimand procedures must be developed for crew whose actions lead to violations of any effluent limit set forth in this permit or procedures established by the ferry operator to minimize the discharge of poll utants.

Research Vessels Research vessels are those that are engaged in investigation or experimentation aimed at discovery and interpretation of facts, revision of accepted theories or laws in the light of new facts, or practical application of such new or revised theories or laws. For research vessels, EPA authorizes the discharge of tracers (dyes, fluorescent beads, SF6), drifters, tracking devices and the like, and expendable bathythermograph (XBT) probes, into waters subject to the VGP, provided such discharges are for the sole purpose of conducting research on the aquatic environment or its natural resources in accordance with generally recognized scientific methods, principles, or techniques. The EPA requires owners/operators of research vessels to discharge only the minimal amount of materials necessary to conduct research on the aquatic environment or its natural resources in accordance with generally recognized scientific methods, principles, or techniques.

Emergency and Rescue Vessels For emerg ency and rescue vessels, EPA authorize s owners/operators to discharge waste streams in conjunction with training, testing, and maintenance operations, provided that they comply with all additional requirements of the CWA (e.g., section 311) and the Nationa l Contingency Plan (40 CFR Part 300). This part does not relieve vessel operators of any additional responsibilities under the CWA and the National Contingency Plan which prohibits the discharge of oil for research or demonstration purposes without Adminis trator approval. The use of foaming agents for oil or chemical fire response must be implemented in accordance with the National Contingency Plan (40 CFR Part 300).

VGP Inspect ions, Recordkeeping , Reporting, Compliance, and Enforcement

Self Inspections an d Monitoring

Routine Visual Inspections

. For vessels covered under the VGP, EPA require s vessel owners/operators to conduct a routine visual inspection at least once per voyage (but not more than once per day and not less than once per week

. Vessel owne rs/operators are required to

document the findings of ea ch routine visual inspection including: the date and time of inspection, ship locations inspected, personnel conducting the inspection, location of any visual sampling and observations, any potential problems and sources of contamination found, any31

corrective actions taken, and the signature of the person conducting the inspection , who must be a signatory under 40 CFR § 122.22. These records must be available to EPA or its authorized representative u pon request. Routine visual inspections must include

 I nspections of all ac cessible areas addressed in the VGP , including, but not limited to : cargo holds, boiler areas, machinery storage areas, welldecks, and other deck areas. Vessel owners/operators mus t ensure:

o areas are clear of garbage, exposed raw materials, oil, any visible pollutant or

constituent of concern that could be disch arged in any waste stream

o pollution prevention mechanisms a re in proper working order

o pollution prevention procedures are i n place to minimize the addition of pollutants to
any waste stream.

 Verification to the extent feasible that effluent limits and related requirements are being met and document any instances of noncompliance.

 V isual inspection of safely accessible deck a nd cargo areas and all accessible areas where chemicals, oils, dry cargo, or other materials are stored, mixed, and used, whether or not the areas have been used since the last inspection.

 V isual monitoring of the water around and behind the vessel for vi sible sheens, dust, chemicals, abnormal discoloration or foaming, and other indicators of pollutants or constituents of concern originating from the vessel during each watch.

 Corrective actions, if pollutants or constituents of concern are dischar g ed in a manner that violates the limitations of the VGP

Extended Unmanned Period Inspections

. For vessels covered under the VGP, the EPA provides vessels with the option of conducting extended unmanned period (EUP) inspections in lieu of vessels conducting routi ne visual inspections for vessels entering an unmanned period of 13 days or more. The extended unmanned period (EUP) inspection must include:

 A routine visual inspection as described above.

 Ensuring material storage, and toxic and hazardous material requi rements are met.

 Ensuring all oils and oily machinery are properly secured, covered, and protected. Any spilled or leaked oils must be cleaned up immediately. If machinery or equipment is leaking oil, the leaks must be stopped or appropriate containment m ust be in place to capture any leaking oil.

 Documenting whether automatic bilge water pump(s) will be engaged on the vessel during the EUP.

 Documenting the amount of fuel on board.

 Documenting the amount of ballast water on board.

 Documenting the date the EUP began.

While a vessel is in extended lay

- up, the owner/operator must examine the outside of the vessel and surrounding waters at least once every two weeks for any evidence of leaks, loss of cargo, or any other spills which might result in an una uthorized discharge. If any deficiencies are observed while the vessel is in EUP, the vessel owner/operator must document those deficiencies and the

corrective actions taken to resolve those deficiencies. If a visible sheen is noted on the surface of32

the s urrounding water, the source of the oil must be identified and corrective action must be taken immediately. T he vessel owner/operator must notify EPA of the visible sheen. All records

must be available to EPA or its authori zed representative upon request. Before a vessel reenters service, the EPA require s vessel owner s /operator s t o conduct a post lay

- up routine visual inspection. As part of this inspection, the owner/operator must document the date the EUP ended, whether fluids (e.g., fuel, ballast water) are at their pre

- EUP levels, and whether any spills or leaks of oily materials are observed. Any deficiencies noted must be corrected before the

vessel reenters service.

Comprehe nsive Annual Vessel Inspections

. For vessels covered under the VGP, EPA requ ire s vessel owners/operators to conduct c omprehensive vessel inspections at least once every 12

months. These annual inspections must be c onducted by qualified personnel, including : the Master or owner/operator of the v essel, if appropriately trained; appr opriately trained marine or

environment al engineers or technicians; or an appropriately trained representative of a vessel’s class society acting on behalf of the owner/operator. Comprehensive annual inspections must

cover all areas of the vessel affected by the requirements in this permit that can be inspected without forcing a vessel into dry dock. Areas that inspectors must examine include, but are not

limited to:

 Vessel hull for attached living organisms, flaking anti

- foulant paint, exposed TBT or

othe r organotin surfaces;

 Ballast water tanks, as applicable;

 Bilges, pumps , and oily water separator sensors, as applicable;

 Oil discharge monitoring system and electronic valve switching function, as applicable;

 Protective seals for lubrication and any h ydraulic oil leaks;

 Oil and chemical storage areas, cargo areas, and waste storage areas; and

 All visible pollution control measures to ensure that they are functioning properly.

If any portions of the vessel are not inspectable without the vessel ente ring drydock , the vessel owner/operator must inspect these areas during their next drydock inspection. The EPA require s vessel owner/operators to document areas not accessibl e during the annual inspection.

The annual inspections must also include a review of monitoring data collected in accordance

with vessel

- class

- specific requirements , and routine maintenance records to ensure that required maintenance is being performed (e.g., annual tune

- ups for small boats that have wet exhaust).

T he inspection must verify whether all monitoring, training, and inspections are logged and documented according to permit requirements.

The EPA require s vessel owners/operators to take c orrective action to resolve deficiencies revealed by inspection, including violation of the effluent limits . Vessel owners/operators are required to record annual inspection results.

Dry Dock Inspections

. For vessels covered under the VGP, EPA require s vessel owners/operators to make dry

- dock reports available to EPA or an authorized repr esentative of33

EPA upon request. The dry

- dock report must note that:

 The chain locker has been cleaned for both sediment and living organisms;

 The vessel hull, propeller, rudder, thruster gratings, sea chest, and other surface areas of

the vessel have bee n inspected for attached living organisms and those organisms have been removed or neutralized;

 Any antifoulant hull coatings have been applied, maintained, and removed consistent with the FIFRA label if applicable; any exposed existing or any new coating does not contain biocides or toxics that are banned for use in the United States;

 For all cathodic protection, anodes or dialectic coatings have been cleaned and/or replaced to reduce flaking; and

 All pollution control equipment is properly functioning.

Recordkeeping

For ves sels covered under the VGP, EPA require s vessel owners/operators to keep records on the vessel or accompanying tug that include the following information:

1. Owner/Vessel information:
a. Name,

b. Owner and Vessel IMO Number (official number if IMO number not issued), c. Vessel type, d. Owner or operator company name, e. Owner or operator certifying official’s name, f. Address of owner/operator, g. Gross tonnage, h. Call sign, and i. Port of Registry (Flag).

2. Voyage Log. Include the dates and ports of arrival, vessel agent(s), last port and country of call, and next port and country of call (when known).

3. If vessel owners/operators have violated any effluent limit, they must document the violation

and reco rd: a. A description of the violation, b. Date of the violation, c. Name, title, and signature of the person who identified the violation, d. Name, title, and signature of the person who is recording the violation (if different from person who iden tified the violation), e. If a Corrective Action Assessment pursuant to Part 3.2 is needed, attach a copy or indicate where the corrective action assessment is stored, and34

f. If a Corrective Action Assessment was previously conducted pursuant to Part 3.2 (and revisions are not needed for this violation of the effluent limit), a reference to that previous corrective action assessment.

4. Log of findings and any deficiencies and problems identified during routine visual inspections

and exten ded unman ned inspections , including a discu ssion of any corrective actions , if applicable. Include date, inspector’s name, findings, and corrective actions planned or taken. If no deficiencies or problems are found during a routine visual inspection, the vessel

own er/operator shall record that the inspection was completed with the inspector’s name and date. Routine visual inspections and extended unmanned inspections (if applicable) must be recorded as completed

.

5. Analytical resu lts of all monitoring conducted

, including sample documentation, results, and laboratory quality assurance (QA) documentation. Log of findings from comprehensive annu al vessel inspections conducted , including a discussion of any corrective ac tions planned or taken required. Include date , inspector’s name, findings, and a description of the corrective actions

taken.

6 . Log of findings from drydock inspections conducted including a discussion of any corr ective actions planned or taken . Include date, inspector’s name, findings, and a desc ription of the

corrective actions taken.

7 . Record of any specific requirements given to your vessel by EPA or its authorized representative and how those requirements have been met.

8 . Additional maintenance and discharge information to be recorded an d kept in a log on the

vessel: a. Deck maintenance. Record dates, materials used, application process, etc. for any significant maintenance of the deck surface(s) (e.g., more than routine, daily cleaning activities, such as sweeping). b. Bilgewater. Record dates, location, oil concentration (for MARPOL vessels) or visible sheen observation (non

- MARPOL vessels), and estimated volume of bilgewater discharges. Record the same information for bilgewater disposed of at onshore locations. c. Paint appli cation. Record dates, materials used, application process, etc. for any antifouling paint applied to the vessel. d. AFFF. Record dates, estimated volumes, and constituents of any discharges of AFFF. e. Chain locker inspections. Record dates of inspect ions and any rinsing conducted within waters subject to this permit. f. Controllable pitch propeller, stern tube, and other oil

- to

- sea interface maintenance. Record dates and locations of any maintenance of controllable pitch propellers that

occurs wh ile the vessel is in waters subject to this permit. g. Any emergencies requiring discharges otherwise prohibited to waters listed in Appendix G of the VGP

.35

h. Gas Turbine Water Wash. Record dates and estimated volume of any discharge of gas

turbine w ashwater within waters subject to this permit. If hauled or disposed of onshore, record log hauler and volume. i. Estimated volume and location of graywater discharged while in waters subject to this permit.

9 . All other documentation required pursua nt to the VGP

.

1 0 . Record of training completed as required by this permit, and where applicable, strategy for passenger training. For purposes of this part, if vessel owners/operators include their training plans as part of their ISM or similar environm ental management plans, and they can document that they fully implement those plans, they will meet the recordkeeping requirements of this part.

The EPA require s c ertification of accurate information for all NOIs, NOTs, the PARI form, and any report (inc luding any monitoring data) submitted to EPA, pursuant to 40 CFR § 122.22. The vessel owner/operator are required to retain copies of all reports, certifications, records, monitoring data, and other information required by this permit, and records of all d ata used to complete the NOI to be covered by this permit, for a period of at least 3 years from the date that coverage under this permit expires or is terminated. The vessel master, owner/operator, or person in charge is required to make available to EPA or an authorized representative from EPA all records kept under this part upon request.

For vessels equipped with ballast tanks that are bound for a port or place in the United States, EPA require s the recordkeeping requirements of 33 CFR Part 151. The ma ster, owner, operator, or person in charge of a vessel bound for a port or place in the United States is required to keep written records that include the following information:

1. Total ballast water information. Include the total ballast water capacity , total volume of ballast water on board, total number of ballast water tanks, and total number of ballast water tanks in ballast. Use units of measurements such as metric tons (MT), cubic meters (m3), long tons (LT), and short tons (ST).

2. Ballast wat er management. Include the total number of ballast tanks/holds that are to be discharged into the waters of the United States or to a reception facility. Indicate whether the vessel has a ballast water management plan and IMO guidelines on board, and wheth er the ballast water management plan is used.

3. Information on ballast water tanks that are to be discharged into waters subject to this permit or to a reception facility. Include the following: a. The origin of ballast water. This includes date(s), l ocations(s) (including latitude and longitude and port [if relevant]), volume(s), and temperatures(s). If a tank has been exchanged, list the loading port of the ballast water that was discharged during the exchange.36

b. The date(s), location(s) (incl uding latitude and longitude), volume(s), method, thoroughness (percentage exchanged if exchange conducted), sea height at time of exchange if exchange conducted, of any ballast water exchanged or otherwise managed. c. Specific records pertaining to tr eated ballast water (see Part 2.2.3.5 of the permit). d. The expected date, location, volume, and salinity of any ballast water to be discharged into the waters of the United States or a reception facility.

4. Discharge of sediment. If sediment is to be discharged into a facility within the jurisdiction of the United States, include the location of the facility where the disposal will take place. The ballast water reporting forms must be kept on board the vessel and must be submitted to the

National Ballast Information Clearinghouse before arriving to U.S. ports if required by the U.S.

Coast Guard. In addition, all vessels that conduct saltwater flushing but do not report saltwater flushing to the NBIC, must instead keep a record of saltwater flushing to meet the requirements of this permit.

Reporting Requirements For vessels covered under the VGP, the EPA require s vessel owners/operators to submit an Annual Report, i.e., the form available in Appendix H of the VGP. The EPA require s vessel owners/ope rators to report all instances of noncompliance as part of the Annual Report. The

EPA require s vessel owners/operators to submit all analytical monitoring results as part of the Annual Report. Vessel owners/operators are required to answer all questions accurately and completely, and provide the necessary information and/or data to support each response. They

are required to submit their Annual Report electronically unless exempted as described in the

VGP. The EPA require s own ers and operators of v essel s greater than 300 gross tons or ballast water capacity of at least 8 cubic meters to submit a Notice of Intent (NOI). They require all other vessel owners/operators to complete a Permit Authorization and Record of Inspection Form (PARI) and keep it onboar d at all times

.
The following questions will be added to the Annual Report form available in Appendix H of the

VGP:

 When is your next scheduled drydocking? (This question is optional for inland vessels less than 300 gross tons and unmanned, unpowered barg es)

 When did you last conduct a below water (or drydock) hull inspection? (This question is optional for inland vessels less than 300 gross tons and unmanned, unpowered barges)

 Do you use anti

- foulant paint? If so, what type of anti

- fouling hull coating? [ Select specific product from drop

- down menu]. When was it last applied?

Corrective Action37

Under the VGP, EPA has the authority to take enforcement action to require any remedy or corrective action necessary to achieve compliance as quickly as possible

. They require vessel owners/operators to take action to ensure that the problem is eliminated and will not be repeated if they

 V iolate one or more effluent limits or any other requirement of this permit, or if an inspection or evaluation of your vessel by an EPA official or an official agent acting on EPA’s behalf determines that modifications to the control measures are necessary to meet the effluent limits;

 B ecome awar e, or EPA determines, that their measures do not control discharges as stringently as necessary to meet applicable water quality standards; or

 B ecome awar e, or EPA determines, that their pollution control measures or best management practices are not being properly operated and maintained, or are not having

the intended effect in minimizin g pollutant discharges.

Vessel owners/operators are required to conduct a corrective action assessment into the nature, cause, and potential options for eliminating these problem s and to retain the records aboard their

vessel. The EPA require s correctiv e actions to occur within 2 weeks for simple adjustments, 3 months for adjustments that require new parts, and during the next dry dock for large repairs. The EPA considers the initial occurrence of a problem to be a violation of the permit; they

consider failing to conduct a corrective action assessment and failing to correct the problem by the applicable deadline to be additi onal violations of the permit.

Permit Compliance and Enforcement The EPA require s vessel owners and operators to comply with the V G P requirements. Under the CWA, any person who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under the CWA shall, upon conviction, be punished by a fine of not more than $10,000, or by i mprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both. Any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained under the CWA shall, upon convictio n, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both. In addition, false statements or representations, as well as alterations or false entries in documents, may be punisha ble by more severe criminal penalties pursuant to 18 USC §1001 or 18 USC §1519.

To monitor and insure compliance with its VGP, EPA will develop and implement a monitoring and compliance plan by December 2013 to assess the performance of the permit in prot ecting listed resources. Currently, the U.S. Coast Guard conducts all inspections of vessels covered under the VGP using EPA’s Job Aide, i.e., “Guidelines for Coast Guard Evaluations of Compliance with the US Environmental Protection Agency's (EPA) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels.” To insure that the38

inspections assess new requirements of the proposed VGP, EPA will:

 W ork with the U

. S

. C oast G uard, with the early input of the Services, to update the J ob

Aide to reflect requirements included in the new VGP.

 C reate an online training and/or a webinar training regarding the VGP requirements/prohibitions, within one year of final permit issuance.

 Create a comprehensive checklist of requirements for insp ector training in conjunction

with the U

. S

. EPA National Enforcement Training Institute

, within one year of final permit issuance.

 Provide and continue to provide the U.S. Coast Guard with the title, office name, current address and phone number for point s of contact at headquarters offices and in each EPA Region and USCG District.

In addition, EPA’s Office of Enforcement and Compliance Assurance will meet with the Services to discuss enforcement under the VGP. The EPA will gather, review and analyze

ins pection data submitted by the Coast Guard; the results will be summarized (by type of vessel, location when available, type of deficiencies, and number of deficiencies) and provided to the Services annually

.

Small Vessel General Permit ( s VGP)

The propo sed s VGP authorize s owner s/ operator s of eligible vessel s less than 79 feet in length to release discharges incidental to the normal operation of a vessel into waters of the U.S. The following narrative describes the discharges auth orized or prohibited shou ld EPA issue the sVGP. It also describes the activities that EPA require s of vessel owners/operators for vessels covered under the sVGP, including reporting and compliance requirements.

For vessels covered under the sVGP, the EPA authorize s d ischarges i ncidental to the normal operation of a vessel when operating as a means of transportation, including: anti

- foulant hull coating leachate, bilgewater, deck runoff, fish hold effluent, graywater, non

- contact engine cooling water, packing gland effluent, and underwater hull husbandry.

The EPA does not authorize d ischarges that are not incidental to the normal operation of a vessel when operating as a means of transportation. They do not authorize the following discharges: industrial operations waste, medica l waste, noxious liquid substance residue, sewage, used or spent oil, garbage or trash, tetrachloroethylene degreasers, and discharges covered by another NPDES permit

.

Discharges to be Authorized by the s VGP For vessels covered under the sVGP, EPA requir e s vessel owners and operators to minimize39

vessel discharges. They define minimize as to reduce and/or eliminate to the extent achievable using control methods, including best management practices, that are technologically available and economically pract ible and achievable in light of best marine practices. The EPA prohibits the addition of any constituents to any discharge that are not incidental to the norm al operation of a vessel. They require all vessel owner/operators to ensure adequate training for the master,
operator, person

- in

- charge, and crew who manage or affect incidental discharges. They require that all discharges meet the following standards:

 Minimize the potential for substances or pollutants to accidentally enter the effluent, including s pills.

 May not contain visible garbage in the effluent.

 May not use any dispersants, cleaners, chemicals, or other materials or emulsifiers that remove the appearance of a visible she en

.

 Minimize the introduction of constituents of concern or pollutant s, such as foam or floating solids.

 Oil, including oily mixtures, may not be discharged in quantities that may be harmful or

cause a visible sheen.

 The discharge of antifreeze into waters subject to this permit must be minimized. For vessel engines that have been winterized, minimization can be achieved by draining antifreeze from the engine prior to startup or capturing antifreeze when discharged from the engine upon startup. The discharge of antifreeze with toxic or known carcinogenic additives, such as ethylene glycol and methanol, is prohibited.

 When feasible, cleaning, maintenance, and repair jobs should be done while the vessel is out of the water or in drydock.

 Any soaps, detergents or cleaners used must be non

- toxic, phosphate

- free, and biodegrad able ; EPA expects that non

- toxic soaps will contain little to no nonylphenols

. Phosphate

- free soap contains by weight 0.5% or less of phosphates or derivatives of phosphates.

 Any spill of oil or other harmful chemicals that are discharged in a quantity th at may be harmful or cause a visible sheen as established under 40 CFR Part 110, 40 CFR Part 117, or 40 CFR Part 302, must be reported immediately to the National Response.

Water Quality

- Based Effluent Limits

Impaired waters or “water quality limited seg ment[s]” are those which have been identified by a State or EPA pursuant to Section 303(d) of the CWA as not meeting applicable State water quality standards. Impaired waters may include both waters with EPA

- approved or EPA

established Total Maximum Daily Loads (TMDLs) and those for which EPA has not yet approved or established a TMDL.

The EPA require s vessel owners/operators to comply with the requirements of this section,40

including any additional requirements that EPA may impose pursuant to this section , if the vessel discharges to an impaired water without an EPA

- approved or established TMDL. This provision also applies to situatio ns where EPA determines that a vessel’s discharge is not controlled as necessary to meet water quality standards in another water body, even if its discharge is to a receiving water that is not specifically identified on a Section 303(d) list.

If a vessel discharge s to an impaired water with an EPA

- approved or established TMDL and

EPA or state TM DL authorities have informed t he owners/operators that a Waste Load Allocation (WLA) has been established that applies specifically to their vessel’s discharges, to discharges from vessels in their vessel class or type, or to discharges from vessels in general if applicable, EPA requir e s discharge s to be consistent with the assumptions and requirements of that WLA. If such a WLA exists, EPA will inform vessel owners/operators if any additional limits or controls are necessary for discharges to be consistent with the assumptions of any

a vailable WLA in the TMDL, or whether an individual permit application is necessary. T his provision also applies to situations where EPA determines that discharges are covered by the

WLA in an EPA

- approved or established TMDL for a nother water body, even if the discharge is to a receiving water that is not specifically identified on a Section 303(d) list. If an applicable

TMDL exists either indivi dually or categorically for a vessel or vessel class (including disallowing discharges from your vessel), EPA and/or state TMDL agencies will inform vessel operators of specific requirements via dock side postings, information made available from the Captain of the Port, or by specifically contacting vessel owners/operators

.

Additional Technology

- Based Effluent L imits

Fuel Management

. For vessels c overed under the sVGP, the EPA require s vessel owners/operators to:

 Have a functioning fuel

- air separator or a fuel tank vent to prevent a fuel spill, for all motorized vessels constructed on or after December 19, 2013

 Prevent overfilling and refrain from topping off fuel tanks.

 Use an oil absorbent material or other appropriate device while fueling the vessel to prevent any oil from entering waters subject to this permit, for motorized vessels that do

not have a funct ioning fuel

- air separator or a fuel tank vent.

 Regularly inspect the fuel and hydraulic s ystems for any damage or leaks, for instance during fueling and/or when performing routine maintenance.

 Fill portable tanks onshore, instead of on the dock or on your vessel, unless impracticable.

Engine and Oil Control

. For vessels covered under the sVGP, the EPA require s vessel owners/operators to:41

 Periodically inspect (at least once per quarter) the engine for any loose or leaking hoses, gaskets, and/or seals and i f needed, repair or replace damaged parts as soon as possible.

 Place oil absorbent material or other spill response equipment under the vessel engine or use other preventative practices to minimize oil entering the bilgewater.

 Immediately clean up any sp ill or overflow of oil or other engine fluids . A supply of absorbent pads, pillows, or other materials should be kept onboard as appropriate for use in addressing or remediating any such spills or overflows, and supplies should be checked quarterly and re stocked as necessary.

 Dispose of used oil

- absorbent materials onshore in containers designed for oily waste disposal.

 If the vessel has a bilge oily water separator, check for the presence of a visible sheen in surrounding waters periodically while disch arging.

 If a visible sheen is observed as a result of this discharge, suspend discharge until the problem is corrected and clean up immediately.

 Use an oil

- absorbent material to remove any oil from the bilge before discharging, if a U.S. Coast Guard type

- approved bilge oily water separator is not used.

 Any discharge of packing gland or stuffing box effluent must not contain oil, including oily materials, in quantities that may be harmful. These discharges must not produce a visible sheen of oil or oily m aterials. If accessible, segregated water which contains drips from packing gland effluent or stuffing box effluent must be checked daily for the presence of a visible sheen, while the vessel is operational and manned. If not accessible

while the vessel is operational and manned, then the surrounding water must be checked for the presence of a visible sheen (while operating). If a visible sheen is observed, appropriate measures such as the use of oil absorbent materials must be used to remove the presence o f oil before the effluent may be discharged. Dispersants or emulsifiers that remove the appearance of a visible sheen must not be used.

 If a visible sheen is observed in surrounding waters as a result of this discharge, suspend the discharge until the pro blem is corrected and clean up immediately.

 Use environmentally acceptable lubricants in all machinery and equipment, including but not limited to stern tubes, wires, and two

- stroke engines, where discharges of oil to surrounding waters are likely to occu r, unless technically infeasible.

 Unless infeasible, prior to pumping the bilge, inspect the bilgewater for an oily sheen. While pumping the bilge, examine the surrounding water for the presence of a visible

sheen.

 If a visible sheen is observed as a resu lt of this bilge pumping, suspend the discharge until the problem is corrected and clean up immediately.

 Refrain from adding dispersants, detergents, emulsifiers, chemicals or other substances that remove the appearance of a visible sheen to the bilge.

Solid and Liquid Waste Management

. For vessels covered under the sVGP, th e EPA require s vessel owners/operators to:42

 Prevent trash or garbage, including food waste, cigarette butts, bottles, and caps from entering any waste stream covered by this permit.

 Have appropriate receptacles for retaining trash or garbage onboard the vessel. Examples of appropriate receptacles include secured trash bags or coolers, bins, or trash cans with secure lids. Store any used antifreeze, paint, out

- of

- date flares, or other toxics in secure containers and dispose of them properly at onshore disposal facilities.

 Secure or otherwise prevent loose items on deck from entering any waste stream covered by this permit.

 Prevent monofilament line, fishing nets, lines, lures, rope, b ait boxes

, and hooks from entering any waste stream covered by this permit.

Deck Washdown and Runoff and Above Water Line Hull Cleaning

. For vessels c overed under the sVGP, the EPA require s vessel owners/operators to:

 Use all soaps and cleaners as direc ted by the label.

 Use non

- toxic, phosphate

- free, and biodegradable soaps, detergents, or cleaners ; EPA expects that soaps that are “minimally toxic” will contain little to no nonylphenols . The use of soaps that are labeled toxic or highly toxic is prohibi ted under the sVGP.

 Prevent the introduction of on

- deck debris, garbage, residue, and spills into deck washdown and runoff discharges.

 Minimize the discharge of paint chips and residue, especially during cleaning, maintenance, paint application, and reap plication. When performing these activities, collect and then dispose of chips and residues onshore in accordance with applicable requirements for the facility where operations are performed.

Vessel Hull Maintenance

. For vessels covered under the sVGP, the EPA require s vessel owners/operators to:

 Minimize the impact of any anti

- foulant system or the discharges resulting from anti

foulant paints on the aquatic environment. Use less toxic alternatives to copper based paints to the extent practicable and a vailable.

 Minimize hull husbandry in designated criti cal habitat for ESA listed aquatic species.

 Do not use anti

- fouling coatings if not needed, where drying or hull cleaning at haul

- out is adequate for managing fouling (e.g., for vessels that are hauled frequently or for over

winter storage).

 Avoid discharges of tributyltin (TBT), i.e., zero

- discharge standard by avoiding TBT coatings; or having an effective overcoating that completely eliminates TBT discharges.

 Avoid cleaning anti

- foulant paint which r eleases biocides for the first 90 days after application.

 If the anti

- foulant paint requires cleaning, gently clean hulls on a regular basis (this minimizes the need for stronger cleaners and more abrasive brushes).43

 When cleaning hulls coated with anti

- f ouling paint while the vessel is in the water, use only soft sponges. Examine the water while cleaning to avoid forming a plume of paint. Stop immediately if any visible plume of paint appears in the water. Consider hiring a qualified, professional hull cl eaner to do the work, and ensure that they follow environmental guidelines.

 When cleaning hulls coated with anti

- fouling paint while the vessel is out of the water, always work away from the water in a location where paint chips and dust will not be

washe d into the water. Place a tarp under the area to catch loose particles, and properly dispose of paint chips, dust, and other particles.

 Vessel hulls must be periodically inspected (at least once per quarter), and if necessary, cleaned to prevent the sprea d or dispersal of potentially invasive species.

 Minimize the transport of any visible living organism from one waterbody to another by regularly cl eaning and maintaining the hull. If a vessel’s hull is severely fouled the cleaning has not occurred regul arly. Hence, severe fouling could be a permit violation.

 Prior to transporting the vessel from one waterbody to another overland, inspect the visible areas of the vessel for any attached or visible stowaway living organisms. If organisms are found, they m ust be removed and appropriately discarded onshore. Removed organisms may not be discharged into waters subject to the sVGP.

Graywater

. For vessels covered under the sVGP, the EPA require s vessel owners/operators to:

 Minimize graywater discharges in are as that have heavy vessel traffic or heavy recreational use and in marine sanctuaries, national wildlife refuges, national wild and scenic rivers, and national wilderness areas. If the vessel has the capacity to store graywater in these waters, it should b e stored and later discharged in other waters or

onshore.

 Minimize the production of graywater while the vessel is stationary in confined waters (e.g., marinas, harbors). If the vessel has the capacity to store graywater, it should be stored and discharg ed at an appropriately equipped onshore facility or discharged while the vessel is underway.

 Use soaps, detergents and cleaners that are phosphate free, non

- toxic, and biodegradable for any activities that may result in their introduction into graywater ; EPA expects that

non

- toxic soaps will contain little to no nonylphenols . Excess oils, including animal fats and vegetable oils, used during cooking must not be added to the graywater system or into any other discharge covered by this permit.

Fish Hold Ef

fluent

. For vessels covered under the sVGP, the EPA require s vessel owners/operators to:44

 Discharge your effluent (including dirty ice) to a shore

- based facility instead of discharging to surrounding waters, if a shore

- based discharge facility is available and economically achievable.

 Avoid discarding any unused live bait overboard, unless caught in that waterbody or

watershed. Unused live bait purchased from a bait shop or dealer may not be discharged

overboard.

 Minimize the discharge of fish hold water o r ice while in port. All reasonable steps must be taken to prevent the discharge of excess fish hold water and ice while the vessel is stationary at the pier. If solid fish waste is contained in the fish hold effluent, the fish hold effluent may not be dis charged while in port, unless a physical separation method is used (e.g. filters or removal of residuals).

 Use non

- toxic, phosphate

- free, and biodegradable soaps and cleaners when cleaning fish holds. While pierside and stationary, avoid washing any res idual solids into surrounding

waters.

Ballast Water

. For vessels covered under the sVGP, the EPA require s vessel owners/operators

to:

 Avoid the discharge or uptake of ballast water in areas within, or that may directly affect, marine sanctuaries, marin e preserves, marine parks, shellfish beds, or coral reefs.

 Minimize or avoid uptake of ballast water in the following areas and situations: designated critical habitat for ESA listed species; areas known to have infestations or populations of harmful org anisms and pathogens (e.g., toxic algal blooms); areas near sewage outfalls; areas near dredging operations; areas where tidal flushing is known to be poor or times when a tidal stream is known to be turbid; in darkness, when bottom

dwelling organisms may rise up in the water column; where propellers may stir up the sediment; areas with pods of whales, convergence zones, and boundaries of major

currents.

 Discharge only the minimal amount of ballast water essential for vessel operations.

 When feasible, use one of the following measures to reduce the potential for transfer or introduction of organisms to waters of the U.S.: u se potable water for ballasting; utilize onshore treatment or disposal methods for ballast water; for vessels that conduct fixed

route s, capture and reuse ballast water in each port.

Seawater Cooling Overboard Discharge

. For vessels covered under the sVGP, the EPA require s vessel owners/operators to:

 Discharge seawater cooling overboard discharge when the vessel is underway to

minimiz e any thermal impacts to the receiving water, when possible.45

 To reduce the production and discharge of seawater cooling overboard discharge, EPA recommends that vessel owner/operators use shore

- based power when the vessel is in port if:

o Shore power is r eadily available for vessel owner/operators from utilities or port authorities;

o Shore

- based power supply systems are capable of providing all needed electricity required for vessel operations; and

o The vessel is equipped to connect to shore

- based power and such systems are compatible with the available shore power.

s VGP Recordkeeping, Inspections, Compliance, and Enforcement

Recordkeeping Requirements

For vessels covered under the sVGP, the EPA require s vessel owners/operators to read and sign a

PARI a nd keep it on board at all times.

Quarterly Visual Inspection Requirements

For vessels covered under the sVGP, the EPA require s vessel owners/operators to conduct quarterly visual inspection

. The inspection must cover all discharges and all applicable areas which impact discharges covered by the permit and at minimum, the visible portions of the hull. The inspection must ensure that all areas are clear of garbage, exposed raw materials, oil, or any other materials that could be discharged into any waste stream or receiving waters and that there is no uncontrolled or unmanaged sources of these pollutants. The EPA will develop a discharge requirement checklist or other implementation tool for vessel owners/operators to use to assist in their quarterly sel f

- inspections; this tool will be developed within one year of the final sVGP permit issuance (December 2013). The EPA require s vessel owners/operators to:

 F requently check the area around and behind the vessel to ensure that no visible sheen, dust, chemi cals, or discoloration is originating from the vessel, while the vessel engine is operating.

 Check to ensure that all equipment on board is in proper working condition. This equipment includes, as appropriate, oily water separators, monitors, bilges, pum ps, and
generators.

 Check all protective seals for lubrication and hydraulic oil leaks.

 D ocument any problem(s) requiring corrective action and corrective actions that were taken to resolve the problem(s). The dates of these inspections must be documente d on the sVGP PARI Form along with any corrective actions taken.

Corrective Action

The EPA retains the right to request any information required to determine whether cause exists46

for modifying, revoking and reissuing, or terminating the sVGP or to determ ine compliance with

the sVGP

. They require vessel owners/operators to provide any requested information within a reasonable time following the request. The vessel owner or operator is required to allow EPA or an authorized representative to:

1. Inspect a ny vessel, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and 2. Sample or monitor, for the purpose of assuring permit compliance or as otherwise authorized by the Act, any substan ces or parameters at any location.

Authorized representatives include the U.S. Coast Guard, an authorized contractor acting as a representative of the Administrator or Director, or an appropriate state agency. Authorized representatives should present th eir credentials to the vessel owner or operator before inspecting or entering any vessel. The EPA retains authorities under Section 308 of the CWA, including the authority to enter, access, inspect, sample, monitor, and obtain information to verify complia nce with the CWA.

Permit Compliance and Enforcement The EPA require s vessel owners and operators to comply with the sVGP requirements. Under the CWA, any person who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or meth od required to be maintained under the sVGP shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both. Any person who knowingly makes any false material statement, representation, or certification in any record or other document submitted or required to be maintained under the sVGP shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both. In addition, fals e statements or representations, as well as alterations or false entries in documents, may be punishable by more severe criminal penalties pursuant to 18 USC §1001 or 18 USC §1519.

To monitor and insure compliance with its sVGP, EPA will :

 D evelop and imp lement a monitoring and compliance plan within 1 year of finalization of the permit to assess the performance of the permit in protecting listed resources ;

 Organize a meeting with their Office of Enforcement and Compliance Assurance for the

Services to d iscuss and provide input to OECA’s inspection and enforcement plans for the sVGP;

 W ork with USCG , with the input of the Services, to update the inspection and

enforcement document inspection checklist (i.e., Job Aide) to reflect sVGP requirements ;47

 Conduct outreach to the states to raise awareness about small vessel requirements; EPA will encourage States to check records of quarterly self

- inspection records and visible portions of the hull while inspecting vessels when im plementing their own programs;

 Devel op trainings covering the small vessel requirements and share these with the Coast

Guard and States

. The EPA will provide the Services with a yearly summary of the number of inspections (by EPA, the Coast Guard, States or other sources) and results (includ ing number of inspections by type of vessel, location when available, and number and type of deficiencies).

Additional Specific Actions Taken by EPA to Conserve Listed Resources

Reinitiation Clause The VGPs include permit reopener clauses which state that the permits are subject to modification based on the receipt of new information that was not available at the time of permit issuance and would have justified the application of different permit conditions at the time of permit issuance. This new inf ormation may include data on ANS invasion rates, available technologies to mi nimize ANS invasions, discharge concentrations or volumes , pollutant risks

, compliance or lack thereof, and adverse affects to listed resources. This information would also

allow EPA to determine whether reinititation of formal ESA Section 7 consultation would be required as provided in 50 CFR 402.16, as described in the Fact Sheets.

VGP Requirements During the course of the Section 7 consultation, EPA agreed to include the follow ing languag e in

the VGP Fact Sheet to minimize exposure and/or adverse affects to listed resources . The E P A require s vessel owners/operators to:

 Regularly inspect the fuel and hydraulic systems for any damages or leaks, for instance during fueling, when p erforming routine maintenance on the auxiliary vessel, and/or during deployments for testing.

 Avoid discharging ballast water in critical habitat when feasible ( http://www.nmfs.noaa.go v/pr/species/criticalhabitat.htm )

 Minimize hull husbandry in critical habitat for aquatic species ( http://www.nmfs.noaa.gov/pr/species/criticalhabitat.htm )

 Use soaps and detergents th at are minimally toxic; EPA expects that soaps that are

“ “minimally toxic” will contain little to no nonylphenols”

 A dd the following questions to the Annual Report:

o When is your next scheduled drydocking? (This question is optional for inland

vessels less than 300 gross tons and unmanned, unpowered barges)48

o When did you last conduct a below water (or drydock) hull inspection? (This question is optional for inland vessels less than 300 gross tons and unmanned, unpowered barges)

o Do you use anti

- foulant paint? If so, what type of anti

- fouling hull coating? [Select specific product from drop

- down menu]. When was it last applied?

sVGP Requirements During the course of the Section 7 consultation, EPA agreed to include the following language in

the sVGP Fact Sheet. The EPA require s vessel owners/operators to:

 Regularly inspect the fuel and hydraulic systems for any damages or leaks, for instance during fueling and/or when performing routine maintenance ;

 Periodically inspect (at least once per quarter) the engine f or any loose or leaking hoses, gaskets, and/or seals and if needed, repair or replace damaged parts as soon as possible;

 C heck for the presence of a visible sheen surrounding waters periodically while discharging bilgewater;

 V isible portions of the v essel hulls must be periodically inspected (at least once per quarter), and if necessary, cleaned to prevent the sp read or dispersal of potentially invasive species;

 Minimize the transport of any visible living organism from one waterbody to another by regularly cl eaning and maintaining the hull;

 Minimize hull husbandry in critical habitat for aquatic species ( http://www.nmfs.noaa.gov/pr/species/criticalhabitat.htm ) ;

 Avoid discharging ballast water in critical habitat when feasible ( http://www.nmfs.noaa.gov/pr/species/criticalhabitat.htm ) ;

 Use soaps and detergents that are minimally toxic; EPA expects that soaps that are

“ “minimally toxic” will contain little to no nonylphenols” ;

 EPA will develop a discharge requirement checklist or other implementation tool for vessel owners/operators to use to assist in their quarterly self

- inspections. This tool will be developed withi n one year of the final sVGP permit issuance (December 2013).

VGP Compliance

To monitor and insure compliance with its VGP, EPA will develop and implement a monitoring and compliance plan by December 2013 to assess the performance of the permit in prot ecting

listed resources. Currently, the U.S. Coast Guard conducts all inspections of vessels covered

under the VGP and uses a EPA/USCG jointly developed Job Aide as a tool , i.e., “Guidelines for Coast Guard Evaluations of Compliance with the US Environmen tal Protection Agency's (EPA)49

Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels.” To insure that the inspections assess new requirements of the proposed VGP, EPA will:

 W ork with the U

. S

. C oast G uard, with the early in put of the Services, to update the Job

Aide to reflect requirements included in the new VGP.

 C reate an online training and/or a webinar training regarding the VGP requirements/prohibitions , within one year of final permit issuance.

 C reate a comprehensiv e checklist of requirements for inspector training in conjunction

with the U

. S

. EPA National Enforcement Training Institute

, within one year of final permit issuance.

 Provide and continue to provide the U.S. Coast Guard with the title, office name, curren t address and phone number for points of contact at headquarters offices and in each EPA Region and USCG District.

In addition, EPA’s Office of Enforcement and Compliance Assurance will meet with the

Services to discuss enforcement under the VGP. The EP A wil l gather, review and analyze inspection data submitted by the Coast Guard ; the results will be summarized (by type of vessel, location when available, type of deficiencies, and number of deficiencies) and provided to the Services annually

.

sVGP Com pliance

To monitor and insure compliance with its s VGP, EPA will :

 D evelop and implement a monitoring and compliance plan within one year of permit

issuance to assess the performance of the permit in protecting listed resources.

 O rganize a meeting with t heir Office of Enforcement and Compliance Assurance for the

Services to discuss and provide input to OECA’s inspection and enforcement plans for

the sVGP.

 W ork with USCG , with the early input of the Services, to update the inspection and

enforcement docum ent inspection checklist (i.e., Job Aide) to reflect sVGP requirements

 C onduct outreach to the states to raise awareness ab out small vessel requirements; EPA will encourage States to check records of quarterly self

- inspection records and v isible portions o f the hull while inspecting vessels when implementing their own programs

.

 Develop trainings covering the small vessel requirements and share these with the Coast

Guard and States

The EPA will provide the Services with a yearly summary of the number of in spections (by EPA, the Coast Guard, States or other sources) and results (including number of inspectio ns by50

type of vessel, location when available , and number and type of deficiencies).

Monitoring of Stressors (ANS and Pollutants) Annually, EPA will s ummarize data from Annual Reports (which include all instances of noncompliance and unavoidable discharges authorized by the VGP) and Discharge Monitoring Reports and provide this summary to the Services. The Discharge Monitoring Reports include:

 Ballast water treatment system testing results, including results from:

o Functionality monitoring (at least monthly)

o Biological organism monitoring (2 or 4 times annually, depending on system)

o Residual biocides (After initial monitoring, 2 or 4 times annually, dep ending on system)

 Graywater from cruise ships (Quarterly, after initial monitoring)

o BOD, fecal coliform, suspended solids , pH, and total residual chlorine

o E. coli , total phosphorus, ammonia, nitrate/nitrite, and total Kjeldahl nitrogen

 Bilgewater (annual o il content monitoring, for new builds on or before December 1 9

, 2013)

In addition, EPA has committed to the following:

Copper Within 1 year of finalization of the VGPs , EPA will develop, in cooperation with the Services, and implement a monitoring and rep orting plan for copper . The plan will contain the following

elements:

1) EPA, with the technical assistance of the Services, will identify metrics for assessing
copper loadings to waters inhabited by ESA listed species (i.e., using the number of ships

report ing copper hull treatments in eNOIs for particular areas as a proxy).
2) EPA will compile eNOI and annual report information regarding the number and type of
vessels that use copper

- based anti

- fouling hull coating and/or exhaust gas scrubbers, their
home port

/most frequented US port, and US ports anticipated visiting during the permit

term. 3) Twice, once by December 2014 (to summarize eNOI data) and another before EPA
transmits the next draft VGP/sVGP to OMB for interagency review (to evaluate annual
reports in time to make changes for the next permit cycle, if need be), EPA will evaluate
vessel data and identify ports/locations where the metric has been exceeded. If the metric51

has been exceeded, EPA will, as appropriate, identify and implement additional action s to reduce any unacceptable risks.

Potential Selenium Discharges in Exhaust Gas Scrubber (EGS) Within 1 year of finalization of the VGPs , EPA will develop, in cooperation with the Services, and implement a monitoring and reporting plan for gas

- scrubber di scharges . The plan will contain the following elements:

1) EPA, with the technical assistance of the Services, will identify metrics for assessing
selenium loadings to waters inhabited by ESA listed species (i.e., using the number of
ships reporting exhaust gas scrubbers in eNOIs for particular areas combined with
expected and/or reported volume and concentration values as prox ies )

. 2) EPA will state that vessel operators should analyze selenium in saline EGS discharges
using methods capable of accurately measur ing selenium in saline samples (e.g.,
Octopole Reaction Cell ICP

- MS or Hydride generation AA methods or other methods
which reduce matrix interference for selenium).
3) EPA will compile NOI and annual report information regarding the number and type of

vessel s that use exhaust gas scrubbers, discharge monitoring data for pollutants including
selenium and copper, their home port/most frequented US port, and US ports anticipated
visiting during the permit term.
4) Twice, once by December 2014 (to summarize eNOI dat a) and another before EPA
transmits the next draft VGP/sVGP to OMB for interagency review (to evaluate annual
reports in time to make changes for the next permit cycle, if need be), EPA will evaluate
vessel data and identify ports/locations where the metri c has been exceeded. If the metric
has been exceeded, EPA will, as appropriate, identify and implement additional actions to
reduce any unacceptable risk.

ANS Within 1 year of finalization of the VGPs , EPA will develop, in cooperation with the Services,

a nd implement a monitoring and reporting plan for vessel

- mediated ANS invasions . The plan will contain the following elements:

1) EPA, with the technical assistance of the Services, will identify metrics to evaluate

whether vessel mediated ANS invasion rates are being reduced over time.
2) EPA will track information from ANS invasions that might be potentially tied to vessel
vectors. Information tracked may include:

a. Dr. Greg Ruiz (Smithsonian Institution) conducts systematic surveys for ANS
invasions caused by h ull

- fouling and ballast water in San Francisco, Chesapeake,
and Tampa Bays to track changes in the rate of ANS invasions.52 b. Nationwide NEMESIS database for all newly documented, marine, ballast water
and hull fouling ANS invasions.
http://invasions.si.edu/nemesis/browseDB/searchQuery.jsp

c. National USGS NAS database for all newly documented, freshwater, shipping

related ANS invasions. http://nas.er.usgs.gov/queries/SpSearch.aspx

EPA and the Services acknowledge that new invasions observed from any of these sources are not necessarily linked to discharges authorized by the VGPs. Nonetheless,

over a multi

- permit lifespan, tracking invasions, and improving EPA’s methodologies and understanding of the risk

- release rel ationship, could provide a long

- term perspective about ballast water discharge standards, antifouling technologies, and other practices to

reduce invasions.

3) EPA will rep ort to the Services once per year that they have reviewed this information
and whether notable new invasions have been recorded in the previous year that could
have been previously caused by vessel discharges. The Services note that they are
requesting a short review (approximately one hour per year) to ensure that EPA continues
to track aquatic bioinvasions. As discussed above, EPA and the Services agree that these observations are being used to inform EPA’s general understanding of continued and
ongoing invasion rates.

If needed, EPA will identify and implement, as appropriate, additional actions (e.g., require anti

fouling coatings; require debris containment systems; require more stringent ballast water standards) as soon as practicable (including in f uture permit iterations) to ensure the protection of listed species.

AFCs and Deb ris Containment Technology Before EPA transmits the next draft of the VGPs to OMB for interagency review:

1) EPA will compile information on new developments in AFCs (to minimize exposure to

hull

- fouling ANS and copper loading) and debris containment systems (to minimize the
release of ANS and biocides during underwater husbandry).
2) EPA, with the technical assistance of the Services, will identify whether there are more

efficacious BMPs or technologies for underwater husbandry and for anti

- fouling coatings
with fewer secondary environmental impacts that could be required of vessels.

Approach to the Assessment53 Overview of FWS ’ Assessment Framework

Section 7(a)(2) of the Endangered S pecies Act of 1973, as amended, requires federal agencies, in consultation with and with the assistance of the Services, to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of endangered or threa tened species, and is not likely to destroy or adversely modify critical habitat that has been designated for these species (16 U.S.C. 1539). During consultations on specific actions, FWS fulfills its obligations using an assessment framework that begins b y identifying the physical, chemical, or biotic components of proposed actions that are likely to have individual, interactive, or cumulative direct and indirect effect on the environment (we use the term “potential stressors” for these components of an ac tion); we then determine whether listed species or designated critical habitat are likely to be exposed to those potential stressors; we estimate how listed species or designated critical habitat are likely to respond to any exposure; then we conclude by

e stimating the risks those responses pose to the individuals, populations, and species or designated critical habitat that are likely to be exposed.

General permits authorized by Federal agencies apply to activities over large geographic areas over long pe riods of time, with sub stant ial uncertainty about the number, location, timing, frequency, and intensity of specific activities those programs authorize, fund, or carry out. Our traditional approaches to section 7 consultations, which focus on the specif ic effects of a specific proposal, are not designed to deal with the spatial and temporal scales and level of uncertainty that is typical of consultations on general permits.

Instead of trying to adapt traditional consultation approaches to programmatic c onsultations, we have developed an assessment framework that specifically allows us to help Federal agencies insure that their programs comply with the requirements of section 7(a)(2) of the ESA as described in the Interagency Endangered Species Consultati on Handbook ( FWS and NMFS

1998 a ; Chapter 5). Our assessment framework for general permits first assesses whether the general permits are likely to adversely affect listed species or critical habitats by estimating exposure and response, as described above for traditional consultations. If listed species and critical habitats are likely to be adversely affected we then assess how the permit is structured to comply with section 7(a)(2). Specifically, our programmatic consultations on general permits

examine the decision

- making processes that are integrated into Federal Agency programs to

determine whether those decision

- making processes are likely to insure that specific actions the agency authorizes, funds, or carries out through the program comply with the requirements of section 7(a)(2). That is, during programmatic consultations we ask whether or to what degree the Federal action agency (in this case, EPA) has structured its proposed general permit so that the agency (1) collects the information necessary to allow it to know or reliably estimate the probable individual and cumulative consequences of its actions on listed resources; (2) evaluates the information it collects to assess how its actions have affected endangered species, threatened species, and designated critical habitat specifically; and (3) use its authorities to bring those activities into compliance with the require ments of section 7(a)(2) of the ESA, if the information54

it collects suggests that it is necessary. Here, “permit structure” ref ers to the decision

- making processes, applications of standards and criteria (including standards of information and treatment of uncertainty), feedback loops and internal audits, and controls (including permit conditions) that agencies rely upon to fulfil l their obligations under the ESA.

Figure 2.1 displays a normative model of a decision

- making process that includes these program elements and feedback loops. The process trigger on the left

- hand side of the figure (Box D1) might represent an application f rom a prospective permittee or licensee, a request for prospective funding, or a prospective proposal to be undertaken by a Federal Agency. These process triggers are typically subjected to two screening processes (Box D2):

1. an initial screening process that are designed to insure that proposals minimally comply with statutory,

regulatory, or policy requirements that are applicable to requests for permits, licenses, or funding and

2. secondary screening processes that are designed to insure that an agenc y satisfies the statutory, regulatory,

or policy requirements or criteria that must be met before an agency can issue a permit, license, or funding.

For example, the screening process the EPA applies to general permits includes reviews for completeness; an alyses for compliance with Clean Water Act (CWA) guidelines; compliance with State water quality standards; compliance with toxic effluent standards; and compliance with the requirements of section 7(a)(2) of the ESA.

Agency screening processes typically produce recommendations to agency decision

- makers, who have the authority to make final decisions on Agency Actions (Figure 2.1, Box D3). Following those decisions, the Action Agency, permittee, licensee, or funding recipient under takes the action, includ ing any terms or conditions the Action Agency has attached (Figure 2.1, Box O1). The action produces a set of direct, indirect, and cumulative effects on the environ ment and any living organisms that occur in or rely on the environment that is affected by the action (Figure 2.1, Box O2) and the condition of the environment changes in response to those effects (Figure 2.1, Box O3).

Figure 2.1 also displays a program that contains an audit function represented by a monitoring component (Figure 2.1, Lines M1 to M4), a feedback component (Figure 2.1, Lines F1 to F4), and an information gathering and evaluation component that informs a screening process (Figure 2.1, Box D2.1). The monitor ing component would collect empirical information on individual

actions o r a sample of individual actions to (a) identify what action actually occurred for comparison with the action that had been proposed and approved (implementation monitoring; Figure 2.1, Line M1); (b) identify which terms and conditions, if any, were satisf ied, including any mitigation measures that were required (implementation monitoring; Figure 2.1, Line M1), (c) gather empirical information on55 Figure 2.1. A normative model of a decision

- making process that includes these program elements and feedback l oops. See text for further explanation56

the action’s direct and indirect effects on the environment, including the effectiveness of any mitigation measures that had been required (validation and compliance monitoring; Figure 2.1, Line M2), (d) gather t he empirical evidence to determine whether or to what degree the environment changed in response to those effects (Figure 2.1, Line M3); and (e) gather the empirical evidence sufficient to determine whether a proposal contributed to environmental

conditio ns that fail to meet program purposes and standards (compliance monitoring; Figure 2.1, Line M4). The feedback component evaluates empirical data collected by monitoring and incorporates those data into agency decisions about prior or subsequent actions (F igure 2.1, Lines F1 through F4).

Regardless of whether an agency’s decision

- making processes corresponds to the model presented in Figure 2.1, five components of an agency’s decision

- making process are critical to our assessment of whether a general permit would be expected to insure that individual actions authorized, funded, or carried out by the program comply with the requirements of section 7(a)(2) of the ESA. The first critical component is the screening process an agency applies to specific actions a uthorized, funded, or carried out by a program. When we examine this component of an Agency’s decision

- making process, questions we ask include: What standards apply to the screening process? How rigorous are those standards? How rigorously does the

Action Agency apply those standards? Are proposals assumed to comply with an Agency’s statute barring evidence of non

- compliance or vice versa? Which party (prospective permittees or the Action Agency) bears the responsibility for presenting the evidence that su pports their position? Does an Agency’s record of performance allow us to conclude that the screening process works as designed by filtering out proposals that do not satisfy applicable environmental mandates, standards, criteria, and program purposes?

The second critical component is the information that forms the foundation for the agency’s screening process (Figure 2.1, Boxes D1.1, D2.1, and D2.2). When we examine this component of an agency’s decision

- making pro cess, questions we ask include: Does the agency assess the individual and cumulative impacts of specific proposals? Does the agency’s methodology

consider all of the variables that would have to be considered to deter mine whether a specific proposal is likely to have adverse consequence for enda ngered or threatened species and designated critical habitat? Do assessments employ data acquisition procedures that are likely to identify, gather, and analyze all of the information that would be relevant to identify the presence or absence of consequenc e for endangered or threatened species and designated critical habitat? Does the assessment process incorporate quality assurance and quality control procedures? Are those procedures designed to prevent Type I decision error (falsely concluding that a prop osal had an adverse impact), Type II decision error (falsely concluding that a proposal had no adverse impact), or both?

The third critical component is an Action Agency’s decision

- making process, which includes the

information and variables that inform th e Agency’s decision on whether or not to authorize, fund, or implement an action, the decisions the Agency makes, and any conditions or terms the Agency attaches to its decision.

The fourth critical component is an audit function. Does the Action Agency r egularly or57

continuously audit the results of its actions? Are the monitoring and feedback loops (Figure 2.1, lines M1 to M4 and F1 to F4) designed to allow the Agency to (a) collect empirical information that allows them to insure that specific actions th ey authorize, fund, or carry out are undertaken as designed (including any terms, conditions, or mitigation measures associated with the proposal), (b) assess the actual effects of those actions, and (c) determine whether the program is fulfilling its mand ate, purposes, and goals.

The final critical component is the agency’s authority to modify its prior and subsequent decisions when new information (particularly information provided by the audit function) reveals that particular authorizations have not sa tisfied applicable environmental mandates, standards, criteria, and program purposes (the applicable environmental mandates includes compliance with section 7(a)(2) of the ESA).

We organize our programmatic consultations on general permits using a sequence of questions that focus on the agency’s decision

- making process, in general, and the five critical components we just described. Those questions focus on whether and to what degree an Agency has structured a program so that the Agency is in a position to know or reliably estimate whether endangered or threatened species or designated critical habitat are likely to be (a) exposed to stressors associated with specific actions a program would authorize, fund, or carry out; (b) respond to that exposure; and (c ) experience individual

- level, population

- level, or species

- level risks as a result of those responses. Further, we ask whether or to what degree an agency actively gathers that information, whether or to what degree an agency incorporates that information into

its decision

- making processes about specific actions, and whether or to what degree an agency changes the decisions it makes about specific actions based on that information.

Application of this Approach in this Consultation

As we have already discu ssed, we treat the issuance of the proposed VGPs as “programs” that would authorize discharges of pollutants over a five

- year period. As we described earlier, during general permit consultations we ask whether or to what degree the programs:

 Collect or w ill have access to the information necessary to allow it to know how the actions it permits affect listed resources;

 Evaluate that information to assess how its actions have affected endangered species, threatened species, and designated critical habitat; and

 Uses its authorities to bring those activities into compliance.

Specific questions we ask about the proposed VGPs are:

1. Scope

Has the general permit been structured to reliably estimate the probable number, location and timing of the discha rges that would be authorized by the program?

2. Stressors58

Has the general permit been structured to reliably estimate the physical, chemical, or biotic stressors that are likely to be produced as a direct or indirect result of the discharges tha t would be authorized (that is, the stressors produced by the actual discharges to waters of the U.S.)?

3. Overlap

Has the general permit been structured to reliably estimate whether or to what degree specific endangered or threatened species or de signated critical habitat are likely to be exposed to potentially harmful impacts that the proposed permit would authorize?

4. Monitoring/Feedback

Has the general permit been structured to identify, collect, and analyze information about

authorized actions that may have exposed endangered or threatened species or designated critical habitat to stressors at concentrations, intensities, durations, or frequencies that are known or suspected to produce physical, physiological, behavioral, or ecological responses that have potential individual or cumulative adverse consequences for individual organisms or constituent

elements of critical habitat?

5. Responses of Listed Resources

Does the general permit have an analytical methodology that considers :

a) the status and trends of endangered or threatened species or designated critical habitat;

b) the demographic and ecological status of populations and individuals of those species given their exposure to pre

- existing stressors in different drainages and wa tersheds;

c) the direct and indirect pathways by which endangered or threatened species or designated critical habitat might be exposed to the discharges to waters of the United States; and

d) the physical, physiological, behavior, sociobiological, and ecologi cal consequences of exposing endangered or threatened species or designated critical habitat to stressors from discharges at concentrations, intensities, durations, or frequencies that could produce physical, physiological, behavioral, or ecological respon ses, given their pre

- existing demographic and ecological condition?

6. Compliance

Does the general permit have a mechanism to reliably determine whether or to what degree operators have complied with the conditions, restrictions or mitigation meas ures the proposed permit requires when they discharge to waters of the United States?

7. Adequacy of Controls

Does the general permit have a mechanism to prevent or minimize endangered or threatened species or designated critical habitat from being exposed to stressors from discharges:59

a) at concentrations, durations, or frequencies that are potentially harmful to individual listed organisms, populations, or the species, or;

b) to ecological consequences that are potentially harmful to individual listed organisms, populations, the species or Primary Constituent Elements of designated critical habitat?

As with all of our consultations, we conduct our section 7 analyses through a series of steps. These include: a examination of the action; identification of the action area; exposure analyses; response analyses; analyses of aggregate impacts; and risk analyses. These steps are described

below.

PROPOSED ACTION

In reviewing the proposed action and biological evaluation, the Services will examine the

activi ties that would be authorized by the proposed VGPs. This step of our analyses identifies spatial and temporal patterns associated with each category of activity; specifically (a) the geographic distribution of the different activities; (b) the number activ ities; (c) the amounts of pollutants that are likely to be discharged; and (d) the rate of discharges.

Our analysis will evaluate the effects of all discharges of biological and chemical pollutants to waters of the US incidental to the normal operation of all eligible vessels that would be authorized by the VGPs. In addition, the Services must consider the effects of interrelated and interdependent actions of the proposed action. Interdependent actions are actions having no independent utility apart from the proposed action (50 CFR 402

- 02 1 ). They are typically a consequence of the proposed action. For example, if our consultation were evaluating the effects of building a road, an interdependent action would be the planned construction of homes and

other structures that would not be accessible without the presence of that road. Interrelated actions are actions that are part of a larger action and depend on the larger action for their justification (50 CFR 402

- 02 3 ). They are actions that are typically ass ociated with the proposed

action.

In this consultation, NMFS would address the potential effects of the proposed action for marine, coastal, estuarine, or anadromous endangered species, threatened species, and critical habitat that has been designated for those species in those ecosystems under its jurisdiction; FWS would address the potential effects of the proposed action for terrestrial, freshwater, and resident estuarine endangered species, threatened species, and critical habitat that has been designat ed for those species under FWS’ jurisdiction in those ecosystems.

ACTION AREA

We determine the degree of geographic and temporal overlap between the activities that would be authorized by the proposed VGPs and endangered and threatened species and designa ted

critical habitat.

1 See: http://cfr.vlex.com/vid/402

- 02

- definitions

- 1989520960

EXPOSURE ANALYSES

Before assessing an agency’s decision

- making process (as described above), the FWS will first establish whether the proposed action could expose listed species and critical habitat to potentially harmful stressors a nd whether listed species and critical habitats are likely to respond adversely. If exposure to stressors and adverse responses are not likely to occur, we do not assess the agency’s decision

- making process.

Our assessment will focus on whether and to wha t degree the EPA structured the VGPs in ways that would prevent or minimize endangered or threatened species or critical habitat that has been designated for those species from being exposed to harmful discharges of pollutants into waters

of the United Sta tes and other harmful activities because such exposures commonly trigger responses that are difficult to prevent. For example, once individual plants and animals are exposed to a discharge containing pollutants, their responses to the exposure is controlle d by the concentration, duration, and frequency associated with the exposure, their sensitivity to the discharged materials, other physical, chemical, or biotic stressors they are exposed to in the same time interval, their pre

- existing physiological state , and their constitutional endowment. Because it is so difficult to prevent free

- ranging organisms from responding to anthropogenic stressors once they have been exposed, the most effective management measures are designed to influence the exposure itself. For that reason, our assessment focuses on whether and to what degree the VGPs prevent or minimize endangered and threatened species and designated critical habitat from being exposed to harmful discharges and other harmful activities that would be author ized by the proposed VGPs. Rather than discuss the literature for each species, it would be only be necessary to discuss the risks of exposing species groups (for example, Pacific Salmon; Sturgeon; Sea Turtles; etc.).

RESPONSE ANALYSES

We conduct a detail ed review of the literature available on the physical, physiological, behavioral, social, and ecological responses of endangered or threatened species or constituent elements of critical habitat given exposure to harmful discharges into waters of the Unite d States or to the effects of those discharges and the activities associated with those activities on the ecology of the watersheds in which they occur (that is, effects resulting from changes in populations of prey, predators, competitors, symbionts, etc. ). Rather than discuss the literature for each species, we organize the data using species groups (for example, Pacific Salmon; Sturgeon; Sea Turtles; etc.). We summarize the probable consequences of the identified responses for populations of endangered and threatened species and designated critical habitat.

TREATMENT OF AGGREGA TE IMPACTS

To address the question of whether the activities that would be authorized by the proposed VGPs

have direct and indirect effects on listed resources that are suffici ently small both individually and in aggregate, we explicitly consider the aggregate impacts of the proposed permits in the Effects of the Action chapter of our Opinion. This usage of “aggregate impacts” is distinct from

the term “cumulative effects” which the section 7 regulations defines as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur61

within the action area of the Federal action subject to consultation” (50 CFR 402.02).

Aggre gate impacts include: (1) time

- crowded perturbations or perturbations that are so close in time that the effects of one perturbation do not dissipate before a subsequent perturbation occurs; (2) space

- crowded perturbations or perturbations that are so clos e in space that their effects overlap; (3) interactions or perturbations that have qualitatively and quantitatively different consequences for the ecosystems, ecological communities, populations, or individuals exposed to them because of synergism (when st ressors produce fundamentally different effects in combination than they do individually), additivity, magnification (when a combination of stressors have effects that are more than additive), or antagonism (when two or more stressors

have less effect in c ombination than they do individually); and (4) nibbling or incremental and decremental effects are often, but not always, involved in each of the preceding three categories (NRC 1986).

RISK ANALYSES

We help Action Agencies determine whether or to what deg ree they have complied with the requirements of section 7(a)(2) of the ESA by assessing whether and to what degree an Agency has structured a program so that the Agency is in a position to know or reliably estimate: (a) whether endangered or threatened spe cies are likely to be placed at increased risk of extinction, or (b) if those species avoid extinction, whether they are likely to experience increased risk of failing to recover from having been endangered or threatened because of the actions the program authorizes, funds, or carries out.

Our consideration of how well an Agency’s program manages risks to endangered and threatened species reflects the relationship between a listed species, the populations it comprises, and the individuals those populations comprise. The continued existence of a species is determined by the fate of the populations it comprises and the continued existence of a population is determined by the fate of the individuals they comprise. Populations grow or

decline as the individua ls they comprise live, die, grow, mature, migrate, and reproduce, or fail to do so. When we assess whether or to what degree an Agency’s program is likely to eliminate or avoid risks to endangered or threatened species, we are mindful of the distinction b etween species, the populations they comprise, and the individuals comprised by those populations.

When we assess whether or to what degree an Agency’s program is likely to eliminate or avoid risks to individual members of endangered or threatened species, we think in terms of the individuals’ fitness, which integrates an individuals’ longevity with its current and future reproductive success. In particular, we examine the scientific and commercial data available to

determine if an individ ual’s probable r esponse to stressors produced by an Action would reasonably be expected to reduce the individual’s current or expected future reproductive success by increasing an individual’s likelihood of dying prematurely, increasing the age at which it becomes reprodu ctively mature, reducing the age at which it stops reproducing, reducing the number of live births it produces during any reproductive bout, reducing the number of reproductive bouts it engages in over its reproduct ive lifespan (in animals that reproduce multiple times), or causing the individual’s progeny to experience any of these phenomena62

(Brommer 2000, Brommer et al . 1998, 2002; Clutton

- Brock 1998, Coulson et al . 2006, Kotiaho

et al . 2005, McGraw and Caswell 1996, Newton and Rothery 1997, Oli and Dobs on 2003, Roff 2002, Stearns 1992, Turchin 2003 ).

We evaluate whether individual members of an endangered or threatened species experience reductions in their current or expected future reproductive success or experience reductions in

the rates at which the y grow, mature, or become reproductively active. Then we determine if those reductions also reduce the abundance, reproduction rates, and growth rates (or increase variance in one or more of these rates) of the populations those individuals represent (see Stearns 1992). Similarly, we determine if those population

- level reductions reduce the viability of the species those population(s) comprise. Our general permit assessments focus on whether or to what degree an Agency’s program is likely to insure that th e direct or indirect effects of actions the program would authorize are not likely to reduce the fitness of listed individuals to a degree that would be sufficient to reduce the viability of the population(s) those individuals represent and jeopardize the survival and recovery of the species.

Our consideration of how well an Agency’s program manages risks to designated critical habitat focuses on the value of the physical, chemical, or biotic phenomena of the critical habitat for the

conservation of the end angered and threatened species for which the critical habitat was designated. In this step of our assessment, we consider information about the contribution of constituent elements of critical habitat (or of the physical, chemical, or biotic features that give the designated area value for the conservation of listed species, particularly for older critical habitat designations that have no constituent elements) to the conservation value of those areas of

critical habitat that occur in the action area. The n we consider the contribution of the

conservation value of those areas to the conservation value of the entire critical habitat designation. Our general permit assessments focus on whether or to what degree an Agency’s program is likely to insure that th e direct or indirect effects of actions the program would authorize are not likely to reduce the value of the physical, chemical, or biotic phenomena of the critical habitat areas affected or are not likely to reduce that value of the physical, chemical, o r biotic phenomena to a degree that would be sufficient to reduce the value of the entire critical habitat for the conservation of the endangered and threatened species for which the critical habitat was designated.

Evidence Available for the Consultation

For all of the above analyses, the Services will rely on two bodies of evidence for this

consultation (including EPA’s BE) . We will use the first body of evidence to determine whether or to what degree the proposed general permits can insure that vessel d ischarges on, over, or near waters of the United States are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for those spe cies. To build this body of evidence, we will search for, gather, and analyze published and unpublished sources that examine the effectiveness of previous programs, and whether or to what degree the program has had: (1) adverse consequences for natural f lora and fauna that have some dependency on the quality of waters of the United States, or (2) adverse consequences for species that have been listed as endangered or threatened. In63

particular, we will consider information contained in biological assessme nts, program reviews of effectiveness, compliance monitoring databases, risk assessments and ESA Section 7 consultations on similar actions, species status reviews, listing documents, recovery plans, reports on the status and trends of water quality, past and current research and population dynamics modeling. We will supplement this information by searching for compliance data from available databases that track the number of inspections and enforcement actions over time.

We will use a second body of evid ence to assess the probable consequences of authorizing discharges of pollutants on, over, or near waters of the United States to endangered or threatened species or critical habitat that has been designated for those species. To assemble this body of

inf ormation, we shall search peer

- reviewed scientific literature, master’s theses and doctoral dissertations, government reports and studies and reports from commercial vendors. For example, the National Library of Medicine’s Hazardous Substance Data Bank, T OXNET, Toxline, EXTOXNET pesticide information profiles provide information on the toxicity of the pollutants. These searches will focus on identifying recent information on the biology, ecology, distribution, status, and trends of the threatened and enda ngered species considered in this consultation. We will consider the results of these searches based on the quality of their study design, sample sizes and study results. Studies that relied on large sample sizes with small variances will be generally ra nked higher than studies that relied on small sample sizes or large

variances.

Treatment of “Cumulative Impacts” (in the sense of NEPA )

To address the question of whether the activities that would be authorized by VGPs have direct

and indirect effects on t he environment that are small both individually and cumulatively, we explicitly consider the cumulative impacts of the proposed permits in a “cumulative impact” section of the Effects of the Action chapter of this Opinion. Here, we use the term “cumulative impact” in the NEPA sense of the term (the U.S. Council on Environmental Quality defines them under the term “cumulative effects” but we refer to them as “cumulative impacts” to distinguish

between NEPA and ESA uses of “cumulative effects”). That is, we m ean “cumulative impacts” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non

- federal) or person und ertakes such other actions” (40 CFR 1508.7). The effects analyses of biological opinions considered the “impacts” on listed species and designated critical habitat that result from the incremental impact of an action by identifying natural and anthropogeni c stressors that affect endangered and threatened species throughout their range (the Status of the Species ) and within an Action Area (the Environmental Baseline , which articulate the pre

- existing impacts of activities that occur in an Action Area, includ ing the past, contemporaneous, and future impacts of those activities). We assess the effects of a proposed action by adding their direct and indirect effects to the impacts of the activities we identify in an

Environmental Baseline (50 CFR 402.02), in lig ht of the impacts of the status of the listed species and designated critical habitat throughout their range; as a result, the results of our effects analyses are equivalent to those contained in the “cumulative impact” sections of NEPA

documents.64

This usa ge of “cumulative impacts” is distinct from the term “cumulative effects” which the section 7 regulations defines as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the act ion area of the Federal action subject to consultation” (50 CFR 402.02).

As we discussed previously, cumulative impacts includes (1) time

- crowded perturbations or perturbations that are so close in time that the effects of one perturbation do not dissipat e before a subsequent perturbation occurs; (2) space

- crowded perturbations or perturbations that are so close in space that their effects overlap; (3) interactions or perturbations that have qualitatively and quantitatively different consequences for the e cosystems, ecological communities, populations, or individuals exposed to them because of synergism (when stressors produce fundamentally different effects in combination than they do individually), additivity, magnification (when a combination of stressor s have effects that are more than additive), or antagonism (when two or more stressors have less effect in combination than they do individually); and (4) nibbling or incremental and decremental effects are often, but not always, involved in each of the pr eceding three categories ( NRC 1986).

Action Area

The Action Area for this consultation consists of all waters of the United States in the United States, its territories, and its possessions (which includes American Samoa, Baker Island, Guam,

Howland Island , Jarvis Island, Johnston Atoll, Midway Islands, Navassa Island, the Commonwealth of the Northern Mariana Islands, Palmyra Atoll, Puerto Rico, the U.S. Virgin Islands, and Wake Island) where discharges incidental to the normal operation of all non

recreati onal and non

- military vessels are to be authorized by the EPA’s VGPs. Waters of the U.S. extend to the outer reach of the three mile territorial sea, defined in section 502(8) of the

CWA as the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.

Waters of the U.S. (as defined in 40 CFR 122.2) are:

1. All waters which a re currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate “wetlands;”

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect

interst ate or foreign commerce including any such waters:65 a. Which are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign

commerce; or

c. Which are used or could be used for industrial purposes by industries in interstate

commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this definition;

5. Tributaries of those waters described above;

6. The territorial sea; and

7. “W etlands” adjacent to waters (other than waters that are themselves wetlands).

The action area also includes other wetland or aquatic sites that do not meet the definition of “Waters of the U.S.” and adjacent upland areas that may be affected by the introdu ction and spread of aquatic nuisance species.

Status of the Species and Critical Habitat and Environmental Baseline

In this section of this Opinion we describe the proposed and listed threatened and endangered species 2 and their proposed and designated cr itical habitat that occur in the action area and may be exposed to the direct or indirect effects of discharges authorized by the proposed VGPs. We also consider candidate species and treat these species as “proposed” for the purpose of this analysis. All species within FWS ’ jurisdiction

, listed below, are “aquatic” or “aquatic dependent” and may occur within portions of the action area. FWS has determined that the following species and critical habitat “may be affected” by EPA’s proposed VGPs ( Table 1 ).

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Amphibian s

Salamander, California T iger (Santa Barbara DPS) * Ambystoma californiense Endangered

2 We use the word “species” as it has been defined in section 3 of the ESA, which include “species, subspecies, and any distinc t population segment of an y species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1533)”. Some species, such as California tiger salamanders, have been listed as endangered or threatened distinct population segments (DPS) of California tiger salamanders . A ny DPS is a “species” for the purposes of the ESA.66

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Salamander, California T iger (Sonoma DPS) * Ambystoma californiense Endangered

Salamander, California T iger (Central V alley DPS) * Ambystoma californiense Threatened

Salamander, Frosted Flatwoods Ambystoma cingulatum Threatened

Salamander, Santa Cruz long

- toed Ambystoma macrodactylum croceum Endangered

Salamander, Sonora tiger Ambystoma tigrinum stebbinsi Endangered

Salamander, desert slender Batrachoseps aridus Endangered

Toad, Wyoming Bufo baxteri (=hemiophrys) Endangered

Toad, arroyo (=arroyo southwestern) * Bufo californicus (=microscaphus) Endangered

Toad, Yosemite Bufo canorus Candidate

Toad, Houston * Bufo houstonensis Endangered

Hellbender, Ozark Cryptobranchus alleganiensis

bishopi Endangered

Guajon * Eleutherodactylus cooki Threatened

Salamander, Salado Eurycea chisho lmensis Proposed Endangered

Salamander, San Marcos * Eurycea nana Threatened

Salamander, Georgetown Eurycea naufragia Proposed E ndangered

Salamander, Barton Springs Eurycea sosorum Endangered

Salamander, Jollyville Plateau Eurycea tonkawae Proposed Endange red

Salamander, Austin blind Eurycea waterlooensis Proposed Endangered

Treefrog, Arizona Hyla wrightorum Candidate

Waterdog, bl ack warrior (=Sipsey Fork) Necturus alabamensis Candidate

Salamander, Cheat Mountain Plethodon nettingi Threatened

Frog, Califor nia red

- legged * Rana aurora draytonii Threatened

Frog, Chiricahua leopard * Rana chiricahuensis Threatened

Frog, Columbia spotted Rana luteiventris Candidate

Frog, mountain yellow

- legged (southern California) * Rana muscosa Endangered

Frog, mountain yellow

- l egged (northern California) Rana muscosa Candidate

Frog, relict leopard Rana onca Candidate

Frog, Oregon spotted Rana pretiosa Candidate

Salamander, Texas blind Typhlomolge rathbuni Endangered

Fish

Cavefish, Ozark Amblyopsis rosae Threatened

Sucker, Zuni bluehead Catostomus discobolus yarrowi Candidate

Sucker, Modoc * Catostomus microps Endangered

Sucker, Santa Ana * Catostomus santaanae Threatened

Sucker, Warner * Catostomus war nerensis Threatened

Sucker, shortnose Chasmistes brevirostris Endangered67

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Cui

- ui Chasmistes cujus Endangered

Sucker, June * Chasmistes liorus Endangered

Sculpin, pygmy Cottus paulus (=pygmaeus) Threatened

Sculpin, grotto Cottus sp. Proposed Endangered

Springfish, White River * Crenichthys baileyi baileyi Endangered

Springfish, Hiko White River * Crenichthys baileyi grandis Endangered

Springfish, Railroad Valley * Crenichthys nevadae Threatened

Shiner, blue Cyprinella caerulea Threatened

Shiner, beautiful * Cyprinella formosa Threatened

Pupfish, Leon Springs * Cyprinodon bovinu s Endangered

Pupfish, Devils Hole Cyprinodon diabolis Endangered

Pupfish, Comanche Springs Cyprinodon elegans Endangered

Pupfi sh, desert * Cyprinodon macularius Endangered

Pupfish, Ash Meadows Amargosa * Cyprinodon nevadensis mionectes Endangered

Pupfish, Warm Springs Cyprinodon nevadensis pectoralis Endangered

Pupfish, Owens Cyprinodon radiosus Endangered

Sucker, Lost River Deltistes luxatus Endangered

Minnow, Devils River * Dionda diaboli Threatened

Poolfish, Pahrump Empetrichthys latos Endangered

Dace, desert * Eremichthys acros Threatened

Chub, spotfin * Erimonax monachu s Threatened ;XN

Chub, slender * Erimystax cahni Threatened ;XN

Darter, slackwater * Etheostoma boschungi Threatened

Darter, vermi lion * Etheostoma chermocki Endangered

Darter, relict Etheostoma chienense Endangered

Darter, Arkansas Etheostoma cragini C andidate

Darter, Etowah Etheostoma etowahae Endangered

Darter, fountain * Etheostoma fonticola Endangered

Darter, yellowcheek Etheostoma moorei Endangered

Darter, Niangua * Etheostoma nianguae Threaten ed

Darter, watercress Etheostoma nuchale Endangered

Darter, Okaloosa Etheostoma okaloosae Endangered

Darter, duskytail Etheostoma percnurum E ndangered ;XN

Darter, rush Etheostoma phytophilum Endangered

Darter, bayou Etheostoma rubrum Threatened

Darter, Cherokee Etheostoma scotti Threatened

Darter, Maryland * Etheostoma se llare Endangered

Darter, bluemask (=jewel) Etheostoma sp. Endangered68

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Darter, Cumberland Etheostoma susanae Endangered

Darter, boulder Etheostoma wapiti Endangered ;XN

Goby, tidewater * Eucyclogobius newberryi Endangered

Gambusia, Big Bend Gambusia gaigei Endangered

Gambusia, San Marcos * Gambusia georgei Endangered

Gambusia, Clear Creek Gambusia heterochir Endangered

Gambusia, Pecos Gambusia nobilis Endangered

Stickleback, unarmored threespine Gas terosteus aculeatus williamsoni Endangered

Chub, Mohave tui Gila bicolor mohavensis Endangered

Chub, Owens tui * Gila bicolor sny deri Endangered

Chub, Hutton tui Gila bicolor ssp. Threatened

Chub, Borax Lake * Gila boraxobius Endangered

Chub, humpback * Gila cypha Endangered

Chub, Sonora * Gila ditaenia Threatened

Chub, bonytail * Gila elegans Endangered

Chub, Gila * Gila intermedia Endangered

Chub, headwater Gila nigra C andidate

Chub, Chihuahua Gila nigrescens Threatened

Chub, Yaqui * Gila purpurea Endangered

Chub, Pahranagat roundtail Gila robusta jordani Endangered

Chub, Virgin River * Gila seminuda (=robusta) Endangered

Minnow, Rio Grande silvery * Hybognathus amarus Endangered

Smelt, delta * Hypomesus transpacificus Threatened

Catfish, Yaqui * Ictalurus pricei Th reatened

Spinedace, White River * Lepidomeda albivallis Endangered

Spinedace, Big Spring * Lepidomeda mollispinis pratensis Threat ened

Spinedace, Little Colorado * Lepidomeda vittata Threatened

Spikedace * Meda fulgida Threatened

Silverside, Waccamaw * Menidia extensa Threatened

Dace, Moapa Moapa coriacea Endangered

Redhorse, Sicklefin Moxostoma sp. C andidate

Shiner, palezone Notropis albizonatus Endangered

Shiner, smalleye Notropis buccula C andidat e

Shiner, Cahaba Notropis cahabae Endangered

Shiner, Arkansas River * Notropis girardi Threatened

Shiner, Cape Fear * Notropis mekistocholas Endangered

Shiner, sharpnose Notropis oxyrhynchus C andidate

Shiner, Pecos bluntnose * Notropis simus pecosensis Threatened69

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Shiner, Topeka * Notropis topeka (=tristis) Endangered

Madtom, smoky * Noturus baileyi Endangered ;XN

Madtom, chucky Noturus crypticus Endangered

Madtom, yellowfin * Noturus flavipinnis Threa tened ;XN

Madtom, Neosho Noturus placidus Threatened

Madtom, pygmy Noturus stanauli Endangered ;XN

Madtom, Scioto Noturus trautmani Endangered

Trout, Little Kern golden * Oncorhynchus aguabonita whitei Threatened

Trout, Apache Oncorhynchus apache Threatened

Trout, Lahontan cutthroat Oncorhynchus clarki henshawi Threatened

Trout, Paiute cutthroat Oncorhynchus clarki seleniris Threatened

Trout, greenback cutthroat Oncorhynchus clarki stomias Threatened

Trout, Gila Oncorhynchus gilae Threatened

Chub, Oregon * Oregonichthys crameri Endangered

Darter, amber * Percina antesella En dangered

Darter, goldline Percina aurolineata Threatened

Darter, Pearl Percina aurora C andidate

Logperch, Conasauga * Percina jenkinsi Endangered

Darter, leopard * Percina pantherina Threatened

Logperch, Roanoke Percina rex Endangered

Darter, snail * Percina tanasi Threatened

Dace, blackside Phoxinus cumberlandensis Threa tened

dace, Laurel Phoxinus saylori Endangered

Woundfin * Plagopterus argentissimus Endangered ;XN

Topminnow, Gila (incl. Yaqui) Poeciliopsis occidentalis Endangered

Pikeminnow (=squawfish), Colorado * Ptychocheilus lucius Endangered ;XN

Dace, Independence Va lley speckled Rhinichthys osculus lethoporus Endangered

Dace, Ash Meadows speckled * Rhinichthys osculus nevadensis Endangered

Da ce, Clover Valley speckled Rhinichthys osculus oligoporus Endangered

Dace, Foskett speckled Rhinichthys osculus ssp. Threatened

Dace, Kendall Warm Springs Rhinichthys osculus thermalis Endangered

Trout, bull * Salvelinus confluentus Threatened

Sturgeon, Ala bama* Scaphirhynchus suttkusi Endangered

Cavefish, Alabama * Speoplatyrhinus poulsoni Endangered

Minnow, loach * Tiaroga cobitis T hreatened

Sucker, razorback * Xyrauchen texanus Endangered

Reptiles70

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Alligator, American Alligator mississippiensis SAT

Lizard, St. Croix ground * Ameiva polops Endangered

Sea turtle, loggerhead Caretta caretta Thr eatened

Sea turtle, green Chelonia mydas Endangered ;T

Turtle, bog (=Muhlenberg) Clemmys muhlenbergii Threatened ;

Threatened (S/A )

Crocodile, American * Crocodylus acutus Endangered ;T

Sea turtle, leatherback Dermochelys coriacea Endangered

Snake, eastern in digo Drymarchon corais couperi Threatened

Sea turtle, hawksbill Eretmochelys imbricata Endangered

Lizard, blunt

- nosed leopard Gambelia silus Endangered

Turtle, yellow

- blotched map Graptemys flavimaculata Threatened

Turtle, ringed map Graptemys oculifera Threatened

Turtle, Sonoyta mud Kinosternon sonoriense

longifemorale C andidate

Whipsnake (=striped racer), Alameda * Masticophis lateralis euryxanthus Threatened

Snake, Atlantic salt marsh Nerodia clarkii taeniata Threatened

Snake, copperbelly water Nerodia erythrogaster neglecta Threatened

Snake, Concho water Nerodia paucimaculata Threatened

Snake, Lake Erie water Nerodia sipedon insularum Threatened

Turtle, Alabama red

- belly Pseudemys alabamensis Endangered

Plymouth Red

- Bellied Turtle * Pseudemys rubriventris bangsi Endangered

Massasauga (=rattlesnake), eastern Sistrurus catenatus catenatus C andidate

Turtle, flattened musk Sternotherus depressus Threatened

Snake, giant garter Thamnophis gigas Threatened

Snake, San Francisco garter Thamnophis sirtalis tetrataenia Endangered

Birds

Warbler, nightingale reed (old world warbler) Acrocephalus luscinia Endangered

Sparrow, Cap e Sable seaside * Ammodramus maritimus mirabilis Endangered

Duck, Laysan Anas laysanensis Endangered

Duck, Hawaiian (=koloa) Anas wyvilliana Endangered

Murrelet, Kittlitz's Brachyramphus brevirostris C andidate

Murrelet, marbled * Brachyramphus marmoratus Threatened

Hawk, Puerto Rican broad

- winged Buteo platypterus brunnescens Endangered

Knot, red Calidris canutus rufa C andidate

Grouse, greater sage Centrocercus urophasianus C andidate

Grouse, Gunnison sage Centrocercus minimus C andidate71

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Plover, western snowy (Pacific Coast Population) * Charadrius alexandrinus nivosus Threatened

Plover, piping * Charadrius melodus Endangered ;T

Elepaio, Oahu * Chasiempis sandwichensis ibidis Endangered

Cuckoo, yellow

- billed Coccyzus americanus C andidate

Bobwhite, masked (quail) Colinus virginianus ridgwayi Endangered

Crow, Mariana (=aga) * Corvus kubaryi Endangered

Flycatcher, southwestern willow * Empidonax traillii extimus Endangered

Coot, Hawaiian Fulica americana alai Endangered

Moorhen, Mariana common Gallinula chloropus guami Endangered

Moorhen, Hawaiian common Gallinula chloropus sandvicensi s Endangered

Crane, whooping * Grus americana Endangered ;XN

Crane, Mississippi sandhill * Grus canadensis pulla Endangered

Stilt , Hawaiian Himantopus mexicanus knudseni Endangered

Thrush, small Kauai (=puaiohi) Myadestes palmeri Endangered

Stork, wood Mycteria americana Endangered

Curlew, Eskimo Numenius borealis Endangered

Storm

- petrel, band

- rumped Oceanodroma castro C andidate

Pelican, brown Pelecanus occidentalis Endangered ;DM

Albatross, short

- tailed Phoebastria (=Diomedea) albatrus Endangered

Gnatcatcher, coastal California * Polioptila californica californica Threatened

Caracara, Audubon's crested Polyborus plancus audubonii Threatened

Eider, Steller's * Polysticta stelleri Threatened

Crake, spotless Porzana tabuensis C andidate

Petrel, Hawaiian dark

- rumped Pterodroma phaeopygia

sandwichensis Endangered

Shearwater, Newell's Townsend's Puffinus auricularis newelli Threatened

Rail, light

- footed clapper Rallus longirostris levipes Endangered

Rail, California clapper Rallus longirostris obsoletus Endangered

Rail, Yuma clapper Rallus longirostris yumanensis Endangered

Kite, Everglade snail * Rostrhamus sociabilis plumbeus Endangered

Eider, spectacled * Somateria fischeri Threatened

Tern, least Sterna anti llarum Endangered

Tern, California least Sterna antillarum browni Endangered

Tern, roseate Sterna dougallii dougallii Endangere d ;T

Murrelet, Xantus's Synthliboramphus hypoleucus C andidate

Vireo, least Bell's * Vireo bellii pusillus Endangered

Mammals72

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Wol f, red Canis rufus Endangered ;XN

Bat, Ozark big

- eared Corynorhinus (=Plecotus)

townsendii ingens Endangered

Bat, Virginia big

- ea red * Corynorhinus (=Plecotus)

townsendii virginianus Endangered

Otter, Northern Sea * Enhydra lutris kenyoni Threatened

Otter, so uthern sea Enhydra lutris nereis Threatened ;XN

Jaguarundi, Gulf Coast Herpailurus (=Felis) yagouaroundi

cacomitli Endangered

Jag uarundi, Sinaloan Herpailurus (=Felis) yagouaroundi

tolteca Endangered

Bat, Hawaiian hoary Lasiurus cinereus semotus Endangered

Ocelot Leopardus (=Felis) pardalis Endangered

Vole, Amargosa * Microtus californicus scirpensis Endangered

Vole, Florida salt mar sh Microtus pennsylvanicus

dukecampbelli Endangered

Bat, gray Myotis grisescens Endangered

Bat, Indiana * Myotis sodalis Endangered

Woodrat, riparian (=San Joaquin Valley) Neotoma fuscipes riparia Endangered

Mouse, Pacific pocket Perognathus longimembris pacificus Endangered

Mouse, southeastern beach Peromyscus polionotus niveiventris Threatened

Mouse, Anastasia Island beach Peromyscus polionotus phasma Endangered

Panther, Florida Puma (=Felis) concolor coryi Endangered

Mouse, salt marsh harvest Reithrodontomys raviventris Endangered

Shrew, Buena Vista Lake ornate * Sorex ornatus relictus Endangered

Manatee, West Indian * Trichechus manatus Endangered

Bear, American black Ursus americanus SAT

Bear, Louisiana black * Ursus americanus luteolus Threatened

Bear, grizzly Ursus arctos horribilis Threatened ;XN

Bear, polar * Ursus maritimus Threatened

Arachnids

Pseudoscorpion, Tooth Cave Tartarocreagris texana Endangered

Crustaceans

Isopod, Madison Cave Antrolana lira Threatened

Fairy shrimp, Conservancy * Branchinecta conservatio Endangered

Fairy shrimp, lon ghorn * Branchinecta longiantenna Endangered

Fairy shrimp, vernal pool * Branchinecta lynchi Threatened73

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Fairy shrimp, San Diego * Branchinecta sandiegonensis Endangered

Crayfish, cave Cambarus aculabrum Endangered

Crayfish, cave Cambarus zophonastes Endangered

Amphipod, Illinois cave Gammarus acherondytes Endangered

Amphipod, Noel's * Gammarus desperatus Endangered

Amphipod, diminutive Gammarus hyalleloides Proposed Endangered

Tadpole shrimp, vernal pool Lepidurus packardi Endangered

Isopod, Lee County cave Lirceus usdagalun Endangered

Shrimp, anchialine pool Metabetaeus lohe na C andidate

Crayfish, Nashville Orconectes shoupi Endangered

Crayfish, Shasta Pacifastacus fortis Endangered

Shrimp, anchiali ne pool Palaemonella burnsi C andidate

Shrimp, Squirrel Chimney Cave Palaemonetes cummingi Threatened

Shrimp, Alabama cave Palaemonias alabamae Endangered

Shrimp, Kentucky cave * Palaemonias ganteri Endangered

Shrimp, anchialine pool Procaris hawaiana C andidate

Amphipod, Kauai cave * Spelaeorchestia koloana Endangered

Fairy shrimp, Riverside * Streptocephalus woottoni Endangered

Amphipod, Peck's cave * Stygobromus (=Stygonectes) pecki Endangered

Amphipod, Hay's Spring Stygobromus hayi Endangered

Shrimp, California freshwater Syncaris pacifica Endangered

Isopod, Socorro Thermos phaeroma thermophilus Endangered

Shrimp, anchialine pool Vetericaris chaceorum Proposed Endangered

Insects

Naucorid, Ash Meadows * Ambrysus amargosus Threatened

Naucorid bug (=Furnace Creek), Nevares Spring Ambrysus funebris C andidate

Beetle, Hungerford's crawling water Brychius hungerfordi Endangered

Tiger beetle, northeastern beach Cicindela dorsalis dorsalis Threatened

Tiger beetle, Salt Creek * Cicindela nevadica lincolniana Endangered

Tiger beetle, Puritan Cicindela puritana Threatened

Beetle, valley elderberry * Desmocerus californicus

dimor phus Threatened (proposed

delist)

Beetle, delta green ground * Elaphrus viridis Threatened

Caddisfly, Sequatchie Glyphopsyche sequ atchie C andidate

Beetle, Comal Springs riffle * Heterelmis comalensis Endangered

Riffle beetle, Stephan's Heterelmis stephani C a ndidate

Butterfly, lotis blue Lycaeides argyrognomon lotis Endangered74

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Damselfly, crimson Hawaiian Megalagrion leptodemus Endange red

Damselfly, flying earwig Hawaiian Megalagrion nesiotes Endangered

Damselfly, blackline Hawaiian Megalagrion nigrohamatum

nigr olineatum Endangered

Damselfly, oceanic Hawaiian Megalagrion oceanicum Endangered

Damselfly, Pacific Hawaiian Megalagrion pacifi cum Endangered

Damselfly, orangeblack Hawaiian Megalagrion xanthomelas C andidate

Butterfly, Saint Francis' satyr Neonympha mitch ellii francisci Endangered

Butterfly, Mitchell's satyr Neonympha mitchellii mitchellii Endangered

Skipper, Carson wandering Pseu docopaeodes eunus obscurus Endangered

Skipper, Laguna Mountains * Pyrgus ruralis lagunae Endangered

Dragonfly, Hine's emerald * So matochlora hineana Endangered

Beetle, Comal Springs dryopid * Stygoparnus comalensis Endangered

Snails

Cavesnail, Tumbling Creek * Antrobia culveri Endangered

Snail, Pecos assiminea * Assiminea pecos Endangered

Riversnail, Anthony's Athearn ia anthonyi Endangered ;XN

Campeloma, slender Campeloma decampi Endangered

Snail, Phantom Cave Cochliopa texana Proposed Endange red

Elimia, lacy (snail) Elimia crenatella Threatened

Mudalia, black Elimia melanoides C andidate

Snail, Newcomb's * Erinna newcombi Threatened

Springsnail, Koster's * Juturnia kosteri Endangered

Limpet, Banbury Springs Lanx sp. Endangered

Rocksnail, round Leptoxis ampla Threatened

Rocksnail, interrupted (=Georgia) * Leptox is foremani Endangered

Rocksnail, plicate Leptoxis plicata Endangered

Rocksnail, painted Leptoxis taeniata Threatened

Pebblesn ail, flat Lepyrium showalteri Endangered

Lioplax, cylindrical (snail) Lioplax cyclostomaformis Endangered

Ambersnail, Kanab Oxyloma haydeni kanabensis Endangered

Snail, Snake River physa Physa natricina Endangered

Hornsnail, rough * Pleurocera foremani Endangered

Snail, Diamond Y Spring Pseudotryonia (=Tryonia)

adamantina Proposed Endangered

Snail, armored Pyrgulopsis (=Marstonia) pachyta Endangered

Springsnail, San Bernadino * Pyrgulopsis bernardina Endangered75

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Springsnail, Bruneau Hot Pyrgulopsis bruneauensis Endangered

Springsnail, Chupadera Pyrgulopsis chupaderae Endangered

Springsnail, Page Pyrgulopsis morrisoni C andidate

Springsnail, Socorro Pyrgulopsis neomexicana Endangered

Springsnail, elongate mud meadows Pyrgulopsis notidicola C andidate

Marstonia, royal (snail) Pyrgulopsis ogmorhaphe Endangered

Springsnail, Roswell * Pyrgulopsis roswellensis Endangered

Springsnail, Huachuca Pyrgulopsis thompsoni C andidate

Springsnail, Three Forks * Pyrgulopsi s trivialis Endangered

Snail, Chittenango ovate amber Succinea chittenangoensis Threatened

Snail, Bliss Rapids Taylorconcha serp enticola Threatened

Springsnail, Alamosa Tryonia alamosae Endangered

Springsnail (=Tryonia), Phantom Tryonia cheatumi Proposed Endangered

Springsnail, Gonzales Tryonia

circumstriata(=stocktonensis) Proposed Endangered

Snail, tulotoma Tulotoma magnifica En dangered

Snail, Utah valvata Valvata utahensis Endangered

Bivalves

Elktoe, Cumberland * Alasmidonta atropurpurea Endangered

Wedgemussel, dwarf Alasmidonta heterodon Endangered

Elktoe, Appalachian * Alasmidonta raveneliana Endangered

Three

- r idge, fat (mussel) * Amblema neislerii Endangered

Pocketbook, Ouachita rock Arkansia wheeleri Endangered

Pearlymussel, birdwing Conradilla caelata Endangered ;XN

Spectaclecase Cumberlandia monodonta Endangered

Fanshell Cyprogenia stegaria Endangered ;XN

Pearlymussel, dromedary Dromus dromas Endangered ;XN

Slabshell, Chipola * Elliptio chipolaensis Threatened

Spinymussel, Altamaha * Elliptio spinosa Endangered

Spinymussel, Tar River Elliptio steinstansa na Endangered

Bankclimber, purple (mussel) * Elliptoideus sloatianus Threatened

Combshell, Cumberlandian * Epioblasma brevidens E ndangered ;XN

Mussel, oyster * Epioblasma capsaeformis Endangered ;XN

Pearlymussel, Curtis Epioblasma florentina curtisii Endangere d

Blossom, yellow (pearlymussel) Epioblasma florentina florentina Endangered ;XN

Riffleshell, tan Epioblasma florentina walkeri (= E.

walkeri) Endangered76

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Combshell, upland * Epioblasma metastriata Endangered

Catspaw (=purple cat's paw pearlymussel) Epioblasma obliquata obliquata Endangered ;XN

Catspaw, white (pearlymussel) Epioblasma obliquata perobliqua Endangered

Acornshell, southern * Epioblasma othcaloogensis Endangered

Combshell, southern Epioblasma penita Endangered

Blossom, green (pearlymussel) Epioblasma torulosa gubernaculum Endangered

Riffleshell, northern Epioblasma torulosa rangiana Endangered

Blossom, tubercled (pearlymussel) Epioblasma torulosa torulosa Endangered ;XN

Mussel, snuffbox Epioblasma triquetra Endangered

Blossom, turgid (pearlymussel) Epioblasma turgidula Endangered ;XN

Pigtoe, shiny Fusconaia cor Endangered ;XN

Pigtoe, finerayed Fuscona ia cuneolus Endangered ;XN

Pigtoe, narrow Fusconaia escambia Threatened

Ebonyshell, round Fusconaia rotulata Endangered

sandshe ll, Southern Hamiota (=Lampsilis) australis Proposed Endangered

Pearlymussel, cracking Hemistena lata Endangered ;XN

Mucket, pink (pearlymussel) Lampsilis abrupta Endangered

Pocketbook, finelined * Lampsilis altilis Threatened

Higgins eye (pearlymussel) Lampsilis higginsii Endangered

Mucket, orangenacre * Lampsilis perovalis Threatened

Fatmucket, Arkansas Lampsilis powelli Threatened

Mucket, Neosho Lampsilis rafinesqueana Proposed Endangered

Pocketbook, speckled Lampsilis streckeri Endangered

Pocketbook, shinyrayed * Lampsilis subangulata Endangered

Lampmussel, Alabama Lampsi lis virescens Endangered ;XN

Heelsplitter, Carolina * Lasmigona decorata Endangered

Mussel, scaleshell Leptodea leptodon Endanger ed

Pearlymussel, slabside Lexingtonia dolabelloides Proposed Endangered

Pearlshell, Louisiana Margaritifera hembeli Threatened

Pearlshell, Alabama Margaritifera marrianae Endangered

Moccasinshell, Alabama * Medionidus acutissimus Threatened

Moccasinshell, Coosa * Medionidus parvulus Endangered

Moccasinshell, Gulf * Medionidus penicillatus Endangered

Moccasinshell, Ochlockonee * Medionidus simpsonianus Endangered

Ring pink (mussel) Obovaria retusa Endangered ;XN

Pearlymussel, littlewing Pegias fabula Endangered

Wartyback, white (pearlymussel) Plethobasus cicatricosus Endangered ;XN

Pimpleback, orangefoot (pearlymussel) Plethobasus cooperianus Endangered ;XN77

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Mussel, sheepnose Plethobasus cyphyus Endangered

Clubshell Pleurobema clava Endangered ;XN

Spinymussel, James Pleurobema collina Endangered

Clubshell, black Pleurobema curtum Endangered

Clubshell, southern * Pleurobema decisum Endangered

Pigtoe, dark * Pleurobema furvum Endangered

Pigtoe, southern * Pleurobema georgianum Endangered

Pigtoe, Cumberland Pleurobema gibberum Endangered

Pigtoe, Georgia * Pleurobema hanleyianum Endangered

Pigtoe, flat Pleurobema marshalli Endangered

Clubshell, ovate * P leurobema perovatum Endangered

Pigtoe, rough Pleurobema plenum Endangered ;XN

Pigtoe, oval * Pleurobema pyriforme Endangered

Pig toe, fuzzy Pleurobema strodeanum Threatened

Pigtoe, heavy Pleurobema taitianum Endangered

Hornshell, Texas Popenaias popei C andidate

Pocketbook, fat Potamilus capax Endangered

Heelsplitter, Alabama (=inflated) Potamilus inflatus Threatened

Kidneyshell, triangular * Ptychobranchus greenii Endangered

Kidneyshell, southern P tychobranchus jonesi Endangered

Kidneyshell, fluted Ptychobranchus subtentum Proposed Endangered

Rabbitsfoot, rough * Quadrula cy lindrica strigillata Endangered

Mapleleaf, winged Quadrula fragosa Endangered ;XN

Monkeyface, Cumberland (pearlymussel) Quadrula intermedia Endangered ;XN

Monkeyface, Appalachian (pearlymussel) Quadrula sparsa Endangered ;XN

Stirrupshell Quadrula stapes Enda ngered

Pigtoe, tapered Quincuncina burkei Threatened

Lilliput, pale (pearlymussel) Toxolasma cylindrellus Endangered

Bean, Choc taw Villosa choctawensis Endangered

Bean, rayed Villosa fabalis Endangered

Bean, purple * Villosa perpurpurea Endangered

Bean, Cumberland (pearlymussel) Villosa trabalis Endangered ;XN

Ferns and Allies

Quillwort, Louisiana Isoetes louisianensis Endangered

Quillwort, black spored Isoetes melanospora Endangered

Quillwort, mat

- forming Isoetes tegetiformans Endangered

Ihi`ihi * Marsilea villosa Endangered78

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

No common name * Pteris lidgatei Endangered

Flowering Plants

Liliwai * Acaena exigua Endangered

Monkshood, northern wild Aconitum noveboracense Threatened

Joint

- vetch, sensitive Aeschynomene virginica Threatened

Seabeach Amaranth Amaranthus pumilus Threatened

Sandwort, Marsh Arenari a paludicola Endangered

Silversword, Mauna Loa (=Ka'u) * Argyroxiphium kauense Endangered

Milk

- vetch, Fish Slough * Astragalus len tiginosus var.

piscinensis Threatened

Milk

- vetch, Ash meadows * Astragalus phoenix Threatened

Milk

- vetch, coastal dunes Astragalu s tener var. titi Endangered

Crownscale, San Jacinto Valley * Atriplex coronata var. notatior Endangered

Ko`oko`olau Bidens conju ncta Proposed Endangered

Sunshine, Sonoma Blennosperma bakeri Endangered

Aster, decurrent false Boltonia decurrens Threatened

Brodiaea, thread

- leaved * Brodiaea filifolia Threatened

Brodiaea, Chinese Camp Brodiaea pallida Threatened

Reedgrass, Maui Calamagrostis expansa C andidate

Bellflower, Brooksville Campanula robinsiae Endangered

Bittercress, small

- anthered Cardamine micranthera Endangered

Sedge, golden * Carex lutea Endangered

Sedge, Navajo * Carex specuicola Threatened

Owl's

- clover, fleshy * Castilleja campestris ssp. succulenta Threatened

Centaury, spring

- loving * Cen taurium namophilum Threatened

Prickly

- apple, fragrant Cereus eriophorus var. fragrans Endangered

Spurge, Hoover's * Chamaesyce ho overi Threatened

Thistle, fountain Cirsium fontinale var. fontinale Endangered

Thistle, Chorro Creek bog Cirsium fontinale var. obispoense Endangered

Thistle, Suisun * Cirsium hydrophilum var.

hydrophilum Endangered

Thistle, La Graciosa * Cirsium loncholepis Endangered

Thistle, Sacramento Mountains Cirsium vinaceum Threatened

`Oha wai * Clermontia oblongifolia ssp.

mauiensis Endanger ed

No common name Cordia bellonis Endangered

Bird's

- beak, salt marsh Cordylanthus maritimus ssp.

maritimus Endangered79

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Bird's

- be ak, soft * Cordylanthus mollis ssp. mollis Endangered

Higuero de sierra Crescentia portoricensis Endangered

Haha * Cyanea grimesiana ssp. grimesiana Endangered

Pu`uka`a * Cyperus trachysanthos Endangered

Pawpaw, beautiful Deeringothamnus pulchellus Endangered

Pawpaw, Rugel's Deeringothamnus rugelii Endangered

Panic grass, Hirst Brother s' Dichanthelium (=Panicum) hirstii C andidate

Daisy, Willamette * Erigeron decumbens var. decumbens Endangered

Button

- celery, San Diego Eryngium aristulatum var. parishii Endangered

Thistle, Loch Lomond coyote Eryngium constancei Endangered

Mustard, Penland alpine fen Eutrema penlandii Threatened

Heau * Exocarpos luteolus Endangered

Butterfly plant, Colorado * Gaura neomex icana var.

coloradensis Threatened

Nohoanu * Geranium multiflorum Endangered

No common name Gesneria pauciflora Threatened

Gili a, Monterey Gilia tenuiflora ssp. arenaria Endangered

Gumplant, Ash Meadows * Grindelia fraxino

- pratensis Threatened

Beauty, Harp er's Harperocallis flava Endangered

Kampua`a Hedyotis fluviatilis C andidate

Sneezeweed, Virginia Helenium virginicum Threatened

Sunflower, Pecos (=puzzle, =paradox) * Helianthus paradoxus Threatened

Pink, swamp Helonias bullata Threatened

Heartleaf, dwarf

- flowered Hexastylis naniflora Threatened

Rose

- mallow, Neches River Hibiscus dasycalyx Proposed Threatened

Howellia, water Howellia aquatilis Threatened

Ivesia, Ash Meadows * Ivesia kingii var. ere mica Threatened

Goldfields, Burke's Lasthenia burkei Endangered

Goldfields, Contra Costa * Lasthenia conjugens Endangered

Water

- umbel, Huachuca * Lilaeopsis schaffneriana var.

recurva Endangered

Lily, Western Lilium occidentale Endangered

Lily, Pitkin Mars h Lilium pardalinum ssp. pitkinense Endangered

Meadowfoam, Butte County * Limnanthes floccosa ssp. californica Endangered

Meadowf oam, large

- flowered woolly * Limnanthes floccosa ssp. grandiflora Endangered

Pondberry Lindera melissifolia Endangered

Desert

- par sley, Bradshaw's Lomatium bradshawii Endangered

Lomatium, Cook's * Lomatium cookii Endangered80

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Loosestrife, rough

- leaved Lysimachia asperulaefolia Endangered

No common name * Lysimachia filifolia Endangered

Birds

- in

- a

- nest, white Macbridea alba Threatened

Button, Mohr's Barbara Marshallia mohrii Threatened

Blazingstar, Ash Meadows * Mentzelia leucophylla Threatened

Monkey

- flower, Michigan Mimulus glabratus var.

michiganensis Endangered

Asphodel, bog Narthecium americanum C andidate

Navarretia, spreading * Navarretia fossalis Threatened

Navarretia, few

- flowered Navarretia leucoc ephala ssp.

pauciflora (=N. pauciflora) E ndangered

Navarretia, many

- flowered Navarretia leucocephala ssp.

plieantha E ndangered

Grass, Colusa * Neostapfia colusana Threatened

No common name Nesogenes rotensis E ndangered

Niterwort, Amargosa * Nitrophila mohave nsis E ndangered

Orcutt grass, California Orcuttia californica E ndangered

Orcutt grass, San Joaquin * Orcuttia inaequalis Threate ned

Orcutt grass, hairy * Orcuttia pilosa E ndangered

Orcutt grass, slender * Orcuttia tenuis Threatened

Orcutt grass, Sacramento * Orcuttia viscida E ndangered

Dropwort, Canby's Oxypolis canbyi E ndangered

Locoweed, Fassett's Oxytropis campestris var. chartacea Threatened

Stonecrop, Lake County Parvisedum leiocarpum E ndangered

Beardtongue, Penland Penstemon penlandii E ndangered

Butterwort, Godfrey's Pinguicula ionantha Threatened

Popcornflower, rough Plagiobothrys hirtus E ndangered

Kuahiwi laukahi * Plantago princeps E ndangered

No common name * Platanthera holochila E ndangered

Orchid, white fringeless Platanthera integrilabia C andidate

Orchid, eastern prairie fringed Platanthera leucophaea Threatened

Mesa

- mint, Otay Pogogyne nudiuscula E ndangered

Pondweed, Little Aguja (=Creek) Potamogeton clystocarpus E ndangered

Cinquefoil, S oldier Meadows Potentilla basaltica C andidate

Potentilla, Hickman's Potentilla hickmanii E ndangered

Primrose, Maguire Primula maguirei Threatened

Lo`ulu, (=Na`ena`e) Pritchardia hardyi Endangered

Lo`ulu Pritchardia kaalae E ndangered81

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Lo`ulu Pritchardia napaliensis E ndangered

Lo`ulu * Pritchardia remota E ndangered

Kopiko * Psychotria grandiflora Endangered

Kopiko * Psychotria hobdyi Endangered

Harperella Ptilimnium nodosum E ndangered

Buttercup, autumn Ranunculus aestivalis (=acriformis) E ndangered

Makou Ranunculus mauiensis C andidate

Rhododendron, Chapman Rhododendron chapmanii E ndangered

Beaked

- rush, Knieskern's Rhynchospora knieskernii Threatened

Watercress, Gambel's Rorippa gambellii E ndangered

Cress, Tahoe yellow Rorippa subumbellata C andidate

Arrowhead, bunc hed Sagittaria fasciculata E ndangered

Water

- plantain, Kral's Sagittaria secundifolia Threatened

No common name * Sanicula purpurea E ndangered

Pitcher

- plant, green Sarracenia oreophila E ndangered

Pitcher

- plant, Alabama canebrake Sarracenia rubra alabamensis E ndangered

Pitcher

- plant, mountain sweet Sarracenia rubra ssp. jonesii E ndangered

Chaffseed, American Schwalbea americana E ndangered

Bulrush, Northeastern Scirpus ancistrochaetus E ndangered

Skullcap, Florida Scutellaria floridana Threatened

Roseroot, Leedy's Sedum integrifolium ssp. leedyi Threatened

Checker

- mallow, Nelson's Sidalcea nelsoniana Threatened

Checker

- mallow, Kenwood Marsh Sidalcea oregana ssp. valida E ndangered

Checkermallow, Wenatchee Mountains * Sidalcea oregana var. calva E ndangered

Checker

- mallow, pedate Sidalcea pedata E ndangered

Goldenrod, Houghton's Sol idago houghtonii Threatened

Goldenrod, Yadkin River Solidago plumosa C andidate

Spiraea, Virginia Spiraea virginiana Threatened

Ladies'

- tresses, Canelo Hills Spiranthes delitescens E ndangered

Ladies'

- tresses, Ute Spiranthes diluvialis Threatened

Ladies'

- t resses, Navasota Spiranthes parksii E ndangered

Cobana negra Stahlia monosperma Threatened

Seablite, California Suaeda californica E ndangered

Meadowrue, Cooley's Thalictrum cooleyi E ndangered

Bluecurls, Hidden Lake Trichostema austromontanum ssp.

compactum Threatened

Clover, showy Indian Trifolium amoenum E ndangered

Tuctoria, Greene's * Tuctoria greenei E ndangered82

Table 1

. Species Listed or Proposed as Threatened, Endangered, and their Designated and Proposed Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed C ritical Habitat. There are 45 Candidates for listing also included and treated herein as “Proposed.”

Common Name Scientific Name Status

Solano Grass Tuctoria mucronata Endangered

Vervain, Red Hills Verbena californica Threatened

Pamakani * Viola chamissoniana ssp.

chamissoniana E ndangered

No common name * Viola helenae E ndangered

Nani wai`ale`ale * Viola kauaiensis var. wahiawaensis E ndangered

Grass, Tennessee yellow

- eyed Xyris tennesseensis E ndangered

Wild

- rice, Texas * Ziza nia texana E ndangered

NMFS and the FWS have joint jurisdiction over sea turtles, gulf sturgeon and Atlantic salmon. To avoid redundancy, these shared species have been wholly addressed within NMFS biological opinion. T he FWS is generally responsible for endangered and threatened sea turtles above mean higher high water (when they are on their nesting beaches as opposed to when they are in or beyond the surf zone) and for Gulf sturgeon and Atlantic salmon when they are in fresh water (as opposed to when t hey are in estuarine or marine water).

Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed
Action

As described in the Approach to the Assessment

, FWS uses two criteria to identify those endangered or threatened species or cr itical habitat that are not likely to be adversely affected by the discharges that would be authorized by the proposed VGPs. The first criterion is exposure or some reasonable expectation of a co

- occurrence between direct and indirect effects of the

discha rges authorized by the proposed permits and a particular listed species or designated critical habitat: if we conclude that a listed species or designated critical habitat is not likely to be exposed to those discharges or the resultant stressors, we must also conclude that the critical habitat is not likely to be adversely affected by those activities. The second criterion is the probability of a response given exposure, which considers susceptibility : species that may be exposed to a discharge, but are li kely to be unaffected by the discharge (at levels they are likely to be exposed to) are also not likely to be adversely affected by that discharge. We applied these criteria to the species listed in Table 2.

The FWS has determined that there is a reasonabl e expectation that any aquatic and aquatic

dependent species and their critical habitats listed in Table 2 may be adversely affected by stressors associated with the proposed action. This determination is based primarily on the potential for aquatic nuisa nce species to have effects far from the site of an original introduction.

Species and Critical Habitat Likely to be Adversely Affected by the Proposed
Action

For more information regarding the individual species and critical habitats listed in Table 1 and83

the factors affecting their conservation status, please refer to proposed and final listing determinations, critical habitat designations, recovery plans, and five

- year reviews available at: http: //ecos.fws.gov/ecos/indexPublic.do ; and EPA’s BE prepared for this consultation (EPA 2012a)

. The discussion that follow s focus es on attributes of life history and distribution that influence the manner and likelihood that species may be exposed to the pr oposed action, as well as the species potential response and risk when exposure occurs. The discussion also describes, generally, the physical and biological features (or primary constituent elements) of critical

habitat that are essential to the conservat ion of species and may be exposed to the stressors of the proposed action.

Environmental Baseline

By regulation, the environmental baseline include s the past and present impacts of all state, Federal or private actions and other human activities in the ac tion area, the anticipated impacts of all proposed Federal projects in the action area that have alr eady undergone formal or early

S ection 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process (50 CFR 402.02). The environmental baseline for this Biological Opinion includes the effects of several activities that affect the conservation of endangered and

threatened species and their critical habitats in the Action Area.

A number of human activi ties have contributed to the current status of populations of endangered and threatened species and their critical habitats in the action area. Some of those activities occurred extensively in the past, ended, and no longer appear to occur , although the ef fects of population reductions likely persist today. Other human activities are ongoing and appear to continue to affect popula tions of endangered and threatened species in the Action Area. The following discussion summarizes the principal phenomena in th e Action Area that are known to affect the likelihood that these endangered and threatened species will survive and recover in the

wild.

Because this is a programmatic consultation on a continuing action with a geographic scope that encompasses all waters of the United States, its territories and possessions, this Environmental

Baseline serves a slightly different purpose. First, because this is both a programmatic and

national consultation that does not assess the consequences of EPA’s proposed VGPs for s pecific sites or listed resources that occur at those sites, this Environmental Baseline focuses primarily on the status and trends of the aquatic ecosystems in the United States and the consequences of that status for listed resources. As such, this Envir onmental Baseline elaborates on some of the narratives we have already presented in our treatments of the Status of Listed resources by focusing on the status and trends of waters of the United States at a national scale.

We begin this Environmental Base line with a discussion of the status and trends of waters of the United States. Because the status and trends of those waters, and the endangered and threatened species that depend on them, has been strongly influenced by wetland ecosystems in the United84

S tates, we summarize the status and trends of wetlands in the United States as a second step. We summarize large

- scale impacts to coastal and wetland habitat, including aquatic nuisance species, pollutants, and the imp acts of global climate change. Then we summarize the effect of Federal programs designed to protect and restore waters of the United States. We conclude by integrating and synthesizing this information to assess the effect of these programs on endangered species, threatened species, and designa ted critical habitat.

The Changing Landscapes of the United States

The continental United States has a land area of about 2.3 billion acres. Since colonial times, the landscapes of the United States reflect the abundance, distribution and economics of th e human population. In 1790, the United States had a resident population that was slightly less than 4 million and a population density of 4.5 people per square mile. By 20 10 , that population had grown to slightly more than 308 million people and the popul ation density had inc reased to 85 per square mile. Most of the population growth in the United States occurred in urban areas, first in central cities and later suburbs. In 1910, three times more Americans lived in central cities than in suburban areas; b y 1970, slightly more Americans lived in suburban areas than in either cities or rural areas. From 1950 to 1996, the urban popula tion increased by 63 percent, the rural population decreased by 19 percent, and the greatest relative change occurred in the s uburban population, an increase of 274 percent.

Most of the urban or suburban areas occur in the South and Midwest, but cities and suburbs account for less than 2 percent of the land area in those regions. In comparison, urban and

suburban lands in the N ortheast made up over 5 percent of the landscape. The percentage of “undeveloped” land or natural areas in the South, Northeast and West was almost the same as the percentage of urban and suburban area in those regions (about 22 percent). The Midwest had t he lowest percentage of these lands (17 percent). In the Northeast and South, these lands are represented by forest cover; in the Midwest, these lands are represented by farmland, and in the West the lands are represented by grassland and shrub cover. Abo ut half of all natural lands in urban and suburban areas consist of patches that are smaller than 10 acres. Nationally, less than 5 percent of all natural areas consist of patches at least 1,000 acres in size. The northeast States have a higher percentage of natural areas between 100 and 1,000 acres and 1,000 to 10,000 acres in size than the other regions. Only western States have natural areas greater than 10,000 acres; these natural areas, however, account for 0.3 percent of all natural lands in urban and suburban

areas.

In some cases suburbs developed along major highways and transportation systems to connect

pre

- existing, rural communities with nearby urban areas. In other cases, suburbs developed in areas that had previously been agricultural or had be en dominated by natural communities

because of favorable environmental conditions, zoning ordinances or land costs ( Abler 1976 ; Matlack 1997 ) . As a result, most modern metropolitan areas encompass a mosaic of different

land covers and uses ( Hart 1991 ) . The mosaic or land uses associated with urban and suburban

centers has been cited as the primary cause of declining environmental conditions in the United

States ( Flather et al. 1998 ) and other areas of the world ( Houghton 1994 )

.85

Other human activities that have altered the landscapes of the United States include agricultural practices that include land conversion, sod busting, and applications of pesticides; forest practices that include timber harvests, silviculture, and the construction of logging roads; mining practices that include open

- pit mining, mountain

- top mining, placer mining, heap

- leach mining,

and removal of overburden materials; road construction practices that include alteration of land in the right of way, spraying herbicides to maintain the right of way, and construction of quarries for source materials; civil works projects that include canals, drainage ditches, pr ojects to deliver water to arid lands in the western States, projects to drain wetlands in southeastern States, projects to control flooding in mid

- western and eastern States, port construction, projects to maintain shipping channels, and the construction of more than 8,100 major dams on rivers and streams in the United States, Puerto Rico, and the U.S. Virgin Islands.

The direct and indirect effects of these changes in land

- use and land

- cover change have had a lasting effect on the quantity, quality and distribution of every major terrestrial, aquatic, and coastal ecosys tem in the United States, its territories and possessions. By the mid

- 1990s, at least 27 types of ecosystem s had declined by more than 98 percent ( Noss & Murphy 1995 ) . These include old growth and virgin forests in the eastern United States, pine barrens across Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,

Rhode Island ( Cryan 1985 ) ; more than 95 percent of the natural barrier island beaches in Maryland had been destroyed along with more than 50 percent of barrier island dun es. By 1986, more than 98 percent of the pre

- settle ment longleaf pine ( Pinus palustris ) forests in the southeastern coastal plain had been destroyed ( Noss & Murphy 1995 ; Ware et al. 1993 )

. Many other native ecosystems have experienced substantial reductions in area. About 90 percent of the original 58 million hectares of tallgrass prairie had been destroyed; 99 percent of the tallgrass prairie east of the Missouri River and 85 perc ent of the tallgrass prairie west of the Missouri River has been destroyed ( Klopatek et al . 1979 )

.

Aquatic and semi

- aquatic ecosystems have not fared much better than these terrestrial ecosystems. Between the 1780s and 1980s, 30 percent of the nation’s wetlands had been destroyed, including 74 percent of the wetlands in Connecticut, 73 perc ent of the wetlands in Maryland, 52 percent of the wetlands in Texas, 91 percent of all wetlands in California, including 94 percent of all inland wetlands ( Dahl 1990 ) . From 1982 to 1987, the wetland area throughout the conterminous United States declined by 1.1 percent and the expansion of urban

– suburban metropolitan areas accounted for 48 percent of this decline ( Brady & Flather. 1994 )

. Because of these changes in land use, many of the native plant and animal species that inhabited those native ecosystem s over the past have become extinct or extinct in the wild over the past 200 years. The last passenger pigeon, a species that once numbered in the billions and covered

most of the eastern and mid

- western United States, became extinct in 1912. In the same y ear, the Louisiana parakeet ( Conuropsis carolinensis ludoviciana ) became extinct followed two years later by the extinction of its relative, the Carolina parakeet ( C

. c

. carolinensis ). The heath hen

became extinct in the mid

- 1920s, the June sucker ( Chasmis tes liorus liorus ) in the mid

- 1930s, Tecopa pupfish ( Cyprinodon nevadensis calidae ) in the early 1940s, and Ash Meadows killifish ( Empetrichthys merriami ) and Thicktail chub ( Gila crassicauda ) in the 1950s. Over the past 200 years, a substantial portion of the bird fauna of the Hawaiian islands

- including the Oahu akepa,86

Kona finch, Lanai creeper, black mamo, and Hawai’i o’o

- became extinct combined with the extinction of substantial portions of the freshwater mussel fauna of the Mississippi, Ohio, and

Tenn essee Rivers and regional extirpations of the flora and fauna of California, Florida, Oregon, Puerto Rico, and the desert states.

Status and Trends of Waters of the United States

All of the endangered and threatened species and designated critical habitat considered in this biological opinion depend on the health of aquatic ecosystems for their survival. T hese species were listed as endangered or threatened, at least in part, because of the consequences of human activities on the aquatic ecosystems

- the es tuaries, rivers, lakes, streams, and associated wetlands, floodplains, and riparian ecosystems

- of the United States, its Territories and possessions. The status and trends of those aquatic ecosystems determines the status and trends of these species and t he critical habitat that has been designated for them.

Over the past 30 to 40 years, the nation’s aquatic ecosystems have improved substantially. In particular, pollution from point sources has been significantly reduced over the past 35 years. Sewage and industrial discharges into aquatic ecosystems have been controlled and some agricultural pesticides have been restricted or banned. Programs like the Conservation Reserve Program have taken highly erodible lands out of production. Despite this progress, h owever, many aquatic ecosystems remain highly polluted. Of the waters bodies they assessed

- 39 percent of the river and stream miles, 46 percent of the lake area and 51 percent of the estuarine area

one or more designated uses are impaired. Non

- point poll ution from urban and agricultural land (e.g. s iltation, nutrients, bacteria, metals and oxygen depleting substances) that is transported by precipitation and runoff was the primary cause of the impairment.

These water quality problems, particularly the pr oblem of non

- point sources of pollution, have resulted from the changes humans have imposed on the landscapes of the United States over the past 100

– 200 years. One way of relating these changes in water quality to land uses relies on

the surface area of a watershed that is covered by porous versus impervious surfaces. Most land areas that are covered by natural vegetation are highly porous and have very little sheet flow; precipi tation falling on these land scapes infiltrates the soil, is transpired by t he vegetative cover or evaporates. The increased transformation of the landscapes of the United States into a mosaic of urban and suburban land uses has increased the area of impervious surfaces

- roads, roof tops, parking lots, driveways and sidewalks

- in those landscapes.

The amount of impervious surface in a watershed is a reliable indicator of a suite of phenomena that influence a watershed’s hydrology ( Center for Watershed Protection, 2003 )

. Above certain thresholds, landscapes with impervious surfaces r espond to precipitation differently than other

land

- uses: rain that would normally infiltrate in forest, grassland and wetland soils falls on and flows over impervious surfaces. That runoff is then chan neled into storm sewers and released directly into su rface waters (rivers and streams), which changes the magnitude and variability of water velocity and volume in those receiving waters.87

Aquatic Nuisance Species Aquatic nuisance species (ANS) are aquatic and terrestrial organisms, introduced into new

habita ts throughout the United States and other areas of the world, that produce harmful impacts on aquatic natural resources in these ecosystems and on the human use of these resources ( http://www.anstaskforce.gov ). They are also referred to as i nvasive , alien, or nonindigenous species. Introduction of these species is cited as a major threat to biodiversity, second only to habitat loss (Wilcove et al. 1998). They have been implicated in the endangerment of 48% of the species listed under ESA (Czech and Krausman 1997)

. In Hawaii, 343 marine aquatic invasive species have been documented. Over 250 nonindigenous species of invertebrates, algae, and microorganisms have established themselves in the coastal marine ec osystems of California, whose waters have been the subject of most in

- depth analyses of aquatic invasions in the U.S. More than 180 invaders have been detected and described in the Great Lakes, which are among the best studied freshwater systems in the wo rld.

Climate Change All species discussed in this Opinion are or will be threatened by the direct and indirect effects of global climatic change. There is now widespread consensus within the scientific community that atmospheric tempera tures on earth are increasing (warming) and that these increases will

continue for at least the next several decades ( IPCC 2001 ) . The Intergovernmental Panel on Climate Change (IPCC) estimated that average global land and sea surface temperature has

inc reased by 0.6°C (± 0.2) since the mid

- 1800s, with most of the change occurring since 1976. This temperature increase is greater than what would be expected given the range of natural climatic variability recorded over the past 1,000 years ( Crowley & Berner 2001 ) . The IPCC reviewed computer simulations of the effect of greenhouse gas emissions on observed climate variations that have been recorded in the past and evaluated the influence of natural phenomena

such as solar and volcanic activity. Based on their review, the IPCC concluded that natural phenomena are insufficient to explain the increasing trend in land and sea surface temperature, and that atmospheric warming observed over the last 50 years is probably attributable to human

activities ( IPCC 2001b ) . Climatic models estimate that global temperatures would increase between 1.4 to 5.8°C from 1990 to 2100 if humans do nothing to reduce greenhouse gas

emissions from current levels ( I PCC 2001b )

.

In the Northeast, annual average temperatures have increased by 2°F since 1970, with winter temperatures increasing by up to 4°F ( Karl et al. 2009 ) . Over the same time interval, the Northeast has experienced more days with temperatures gre ater than 90°F, a longer growing season, increased heavy precipitation, more winter precipitation falling as rain than as snow, reduced snowpack, earlier breakup of winter ice on lakes and rivers, earlier spring snowmelt resulting in earlier peak river flo ws, rising sea surface temperatures and sea level.

Over the next several decades, the Northeast is expected to experience temperatures increases of another 2.5 to 4°F during the winter season and 1.5 to 3.5°F during the summer season as a result

of carbo n emissions that have already occurred ( Burakowski et al. 2008 ; Karl et al. 2009 )

. Forecasts beyond the middle of this centu ry are sensitive to the level of carbon emissions produced today. If carbon emissions are not reduced, the length of the winter snow season would be cut in half across northern New York, Vermont, New Hampshire, and Maine, and reduced to a88

week or two in so uthern parts of the region; the Northeast would have fewer cold days during the winter and experience more precipitation ( Hayhoe et al. 2007 ; Karl et al. 2009 )

.

Cities in the Northeast that currently experience temperatures greater than 100°F for a few days each summer would experience an average of 20 days of such temperatures each summer; some

cities in the Northeast

-- Hartford, Connecticut, and Philadelphia, Pennsylvania, for example

-- would experience an average of 30 days of such temperatur es each summer ( Karl et al. 2009 )

. Hot summer conditions would arrive three weeks earlier and last three weeks longer into the fall. Droughts lasting from one

- to three

- months are projected to occur as frequently as once each

summer in the Catskill and Ad irondack Mountains, and across the New England states. Finally, sea levels in this region are projected to rise more than the global average, which would increase coastal flooding and coastal erosion ( Karl et al. 2009 ; Kirshen et al. 2008 )

.

In the Pacific Northwest, annual average temperatures have increased by about 1.5°F over the past century with some areas experiencing increases of up to 4°F ( Elsner & Hamlet 2010 ; Karl et

al. 2009 ; Littell et al. 2009 )

. Hi gher temperatures during the cool season (October through March) have caused more precipitation to fall as rain rather than snow and contribute to earlier snowmelt. The amount of snowpack remaining on April 1, which is a key indicator of natural

water stor age available for the warm season, has declined substantially throughout the Northwest region. In the Cascade Mountains, for example, the snowpack remaining on April 1 declined by an average of 25 percent over the past 40 to 70 years; most of this decline is attributed to the 2.5°F increase in temperatures during the winter season over the time interval ( Christensen et al.

2007 ; Payne et al. 2004 )

.

Over the next century, average temperatures in the Northwest Region are projected to increase by another 3 to 10°F, with higher emissions scenarios resulting in warming in the upper end of this range ( Christensen et al. 2007 ; Karl et al. 2009 ) . Incre ases in winter precipitation and decreases in summer precipitation are projected by many climate models, though these projections are less certain than those are for temperature.

There is consensus within the scientific community that warming trends will continue to alter current weather patterns and patterns of natural phenomena that are influenced by climate, including the timing and intensity of extreme events such as heat

- waves, floods, storms, and wet

dry cycles. Oceanographic models project a weaken ing of the thermohaline circulation resulting in a reduction of heat transport into high latitudes of Europe, an increase in the mass of the Antarctic ice sheet, and a decrease in the Greenland ice sheet, although the magnitude of these changes remain unkn own ( Levermann et al. 2007 ; Schmittner et al. 2005 ) . As ice melts in the Earth’s polar regions in response to increases in temperature, increases in the distribution and abundance of cold water are projected to influence oceanic currents, which would further alter weather patterns. In addition to influencing atmospheric temperatures and weather patter ns, increases in greenhouse gases in the Earth’s atmosphere have begun to increase rates of carbon capture and storage in the oceans: as carbon dioxide levels in the oceans increase, the waters will become more acidic, which would affect the physiology of large marine animals and cause structures made of calcium carbonate (for example, corals) to dissolve (IPCC, 2001).89

Climate change is projected to have substantial direct and indirect effects on individuals, populations, species, and the structure and fun ction of marine, coastal, and terrestrial ecosystems

in the foreseeable future ( McCarthy et al. 2001 ; Parry et al. 2007 ) (see Table 2 ). Climate

mediated changes in the glo bal distribution and abundance are expected to reduce the productivity of the oceans by affecting keystone prey species in marine ecosystems such as phytoplankton, krill, cephalopods.

Increasing atmospheric temperatures have already contributed to change s in the quality of the freshwater, coastal and marine ecosystems and have contributed to the decline of populations of endangered and threatened species ( Karl et al. 2009 ; Littell et al. 2009 ; Mantua et al. 1997 )

.

Changes in temperature and precipitation projected over the next few decades are projecte d to decrease snow pack, affect stream flow and water quality throughout the Pacific Northwest region ( Knowles et al. 2006 ; Mote et al. 2008 ; Rauscher et al. 2008 ; Stewart et al. ; 2004 )

. Warmer t emperatures are expected to reduce snow accumulation and increase stream flows during the winter, cause spring snowmelt to occur earlier in the year causing spring stream flows to peak earlier in the year, and reduced summer stream flows in rivers that dep end on snow melt. As a result, seasonal stream flow timing will likely shift significantly in sensitive watersheds ( Littell et al. 2009 )

.

The States of Idaho, Oregon, and Washington, are likely to experience increased forest growth over the next few decades followed by decreased forest growth as temperature increases overwhelm the ability of trees to make use of higher winter precipitatio n and higher carbon

dioxide. In coastal areas, climate change is forecast to i ncrease coastal erosion and beach loss (caused by rising sea levels), increase the number of landslides caused by higher winter rainfall,

and inundate areas in southern Puget Sou nd around the city of Olympia, Washington ( Littell et

al. 2009 )

.

Table 2 . Phenomena associated with projections of global climate change including levels of confidence associated with projections (adapted from IPCC 2001 and Campbell

- Lendrum Woodruff 2007 )

Phenomenon Confidence in Observed Changes (observed in the

latte r 20 th Century) Confidence in Projected Changes (during the 21 st
Century) Higher maximum temperatures and a greater number of hot days over almost all land areas Likely Very likely

Higher minimum temperatures with fewer cold days and frost days over almo st all land areas Very likely Very likely

Reduced diurnal temperature range over most

land areas Very likely Very likely

Increased heat index over most land areas Likely over many areas Very likely over most

areas

More intense precipitation events Likel y over many mid

- to high

latitude areas in Northern Hemisphere Very likely over many

areas

Increased summer continental drying and Likely in a few areas Likely over most mid

-90

associated probability of drought latitude continental interiors (projections are

inconsistent for other areas)

Increase in peak wind intensities in tropical cyclones Not observed Likely over some areas

Increase in mean and peak precipitation intensities in tropical cyclones Insufficient data Likely over some areas

Rising stream te mperatures will likely reduce the quality and extent of freshwater salmon habitat. The duration of periods that cause thermal stress and migration barriers to salmon is projected to at least double by the 2080s for most analyzed streams and lakes ( Littell et al. 2009 )

.

In addition to these changes, climate change may affect agriculture and other land development as rainfall and temperatu re patterns shift. Aquatic nuisance species invasions are also likely to change over time, as oceans warm and ecosystems become less resilient to disturbances.

Clean Water Act The Federal Water Pollution Control Act, or Clean Water Act, is the principal law concerned with polluting activity in streams, lakes and estuaries in the United States. Th e original 1948 statute was totally re

- written in 1972 (P. L. 92

- 500) to produce its current purpose: “to restore and maintain the chemical, physical, and biologi cal integrity of the Nation's waters” (Federal Water Pollution Control Act, Public Law 92

– 500). Congress made substantial amendment to the Clean Water Act in the Water Quality Act of 1987 (P. L. 100

- 4) in response to the significant and persistent water q uality problems.

The Clean Water Act uses two primary approaches to achieve its goal. The first approach uses regulations to achieve a goal of zero discharge of pollutants into waters of the United States. The second approach provides Federal technical as sistance for municipal wastewater treatment construction. Both approaches are supported by research activities, permits and provisions for

enforcement.

To achieve its objectives, the Clean Water Act generally prohibits all discharges into the nation’s

wa ters, unless they are specifically authorized by a permit. For example, the National Pollutant Discharge Elimination System or NPDES program regulates discharges of pollutants like bacteria, oxygen

- consuming materials, and toxic pollutants like heavy metal s, pesticides, and other organic chemicals.

Most states have been authorized to administer the NPDES program in lieu of EPA (s ee CWA §402(b) ) . However, we note that the VGPs (Clean Water Act NPDES permits) are both issued and administered by EPA nationw ide. Nonpoint sources of water pollution, which are believed to be responsible for the majority of modern water quality problems in the United States, are not subject to Clean Water Act permits or the regulatory requirements. Instead, non

- point sources o f

p ollution are regulated by State programs.91

San Francisco Bay as an Example of the Impact San Francisco Bay provides and illustrative example of the impacts of the environmental baseline on endangered and threatened species under FWS ’ jurisdiction. In th e 1830s, San Francisco Bay covered almost 700 square miles, with almost a million fish passing through the estuary and 69 million acres of water flowing down from mountain headwaters toward the sea (San Francisco Estuary Project, 1997; EPA BE 2012a ). But in 1848, the Gold Rush began, and hydraulic mining plugged the rivers and bays with more than one billion cubic yards of sediments. Over time, farmers and city builders filled up more than 750 square miles of tidal marsh, and engineers built dams to block and store the rush of water from the mountains into the SFBE, as well as massive pumps and canals to convey this water to cities and farms throughout the state (San Francisco Estuary Project, 1997; EPA BE 2012a ).

More than 95% of the historic tidal marsh es have been leveed and filled, leading to subsequent losses in fish and wildlife habitat. Harbor and channel dredging has altered water flow patterns and salinity. Beginning in the early 1900s, water development for flood control, agricultural and

munic ipal uses altered the volume and timing of freshwater inflows (San Francisco Estuary Project, 1997; EPA BE 2012a ). For a number of the estuary’s fish and invertebrate species, it was estimated that a 10 km upstream shift in the location of the mixing zone in the spring around this time period corresponded to a two

- to five

- fold decrease in abundance or survival. The freshwater inflow can vary significantly from year to year from natural conditions. However since the 1940s, large dams on the estuary’s tri butary rivers have captured and stored the majority of fresh water, resulting in less input to the estuary. Analyses of the spring time mixing zone location benchmarks reveal a steady decline in open water habitat (SFEP, 2011; EPA BE

2012a ). Diversions t o cities, farms and other uses remove an average of more than half the water that would otherwise reach the SFBE. Though about 70% of the state's available water supply is carried by Northern California rivers and streams, 80% of the present demand for wa ter comes from the San Joaquin Valley and south of the Tehachapi Mountains (the Los Angeles area) (San Francisco Estuary Project, 1997; EPA BE 2012a ).

Additionally, the amount and quality of the fresh water entering into the SFBE from nearby

watersheds ca n have a significant impact on the overall health of the system. The local watersheds surrounding San Francisco Bay have been dramatically altered due to development, water diversions, and urban runoff. This has caused erosion and sedimentation and negat ively impacted water quality, hydrology, and habitat for fish and other aquatic species (SCCC, 2010;

EPA BE 2012a ).

There have been numerous projects that have improved the conditions in the SFBE over the last 20 to 25 years, including, but not limited to : wetland restoration and enhancement; the development of an integrated Regional Water Management Plan; and the implementation of several invasive species prevention control and eradication programs. One particularly noteworthy program is the Long Term Ma nagement Strategy for the Placement of Dredged Material. Until the late 1980s most of the dredged material from shipping lanes was disposed of in one of three areas in the Bay (SFEP, 2011; EPA BE 2012a ). As a result of this management92

plan and subsequent actions, there has been a significant decrease in the amount of in

- Bay disposal of dredged material with nearly 20 million cubic yards of dredged material being reused for beneficial purposes. Currently the program is on track to meet its long

- term goal to reduce

in

- Bay disposal to 1.25 million cubic yards of material per year (SFEP, 2011; EPA BE 2012a ).

The California San Francisco Bay Regional Water Quality Control Board 2010 303(d) list of water quality impaired waters includes more than 270 listings in 88 water bodies (EPA BE

2012a ). TMDL projects are currently being developed to address more than 160 of the 270 303(d) listings; however, one TMDL may address multiple listings. For example, the Diazinon/Pesticide Toxicity TMDL for urban creeks addres sed more than 30 impaired creeks or creek segments.

ANS have been introduced in California waters via transoceanic ships, aquaculture, the aquarium trade, the bait industry, recreational activities, biological research, environmental restoration projects, and freshwater deliveries up and down the state (SCDFG, 2008; EPA BE 2012a ). However, in the San Francisco Bay Estuary, unmanaged or untreated ballast water from international ships has been cited as the principal cause of invasive species (SCDFG, 2008; EPA

BE 2012a ). Statewide, researchers have now identified 607 introduced or likely introduced species in California’s estuarine waters. In San Francisco Bay, the rate at which ANS were becoming established increased from an average of one new species ever y 55 weeks prior to 1960, to one new species every 14 weeks between 1961 and 1995 (Cohen and Carlton, 1998;

EPA BE 2012a ).

More than 250 non

- native species have been found in the San Francisco Bay

- Delta Estuary (SCDFG, 2008). Some of the most problemati c ANS that have become established in California include the European green crab ( Carcinus maenas ), the Chinese mitten crab ( Eriocheir

sinensis ), the Asian overbite clam ( Corbula amurensis ), as well as a plethora of aquatic plants with origins as far away as Brazil and Japan (SCFDG, 2008; EPA BE 2012a ).

These ANS cause major impacts: disrupting agriculture, shipping, water delivery, recreational and commercial fishing; undermining levees, docks and environmental restoration activities; impeding navigation and enjoyment of the state’s waterways; and damaging native habitats and the species that depend on them (SCDFG, 2008; EPA BE 2012a ).

Integration and Synthesis of the Environmental Baseline

The direct and indirect effects of changes in land

- use and land

- c over of the United States have had lasting effect on the quantity, quality, and distribution of every major te rrestrial, aquatic, and

coastal ecosystem s . Many native ecosystems exist as small isolated fragments surrounded by expanses of urban and suburban landscapes or “natural” areas that are dominated by non

- native species. As a result, many of the native plant and animal species that inhabited those native ecosystems over the past have become extinct, extinct in the wild, endangered, or threatened

over t he past 200 years.

Beginning in the 1960s, a wide variety of programs undertaken by F ederal, S tate, and local93

govern ments, non

- governmental organizations, and private individuals have been established to protect or restore our nation’s forests, grasslan ds, wetlands, estuaries, rivers, lakes, and streams. Those programs have helped slow and, for many ecosystems, reverse declining trends that began in the past. However, those efforts have benefited some ecosystems and their associated flora and

fauna more than other ecosystems. Despite the effo rts of agencies at every level of government,

non

- governmental organizations, and private individuals, non

- point sources of pollution and

ANS invasions still degraded our rivers, lakes, and streams; freshwater aquifer s in coastal areas remain at risk from saltwater intrusion because of water withdrawals; nutrients transported down the Mississippi River remains sufficient to produce an hypoxic zone in the Gulf of Mexico that

had more than doubled in size; and the acreag e of wetland declined from slightly more than 274

million acres of wetlands to about 107.7 million acres between the 1980s and 2004 ( Dahl 2006 )

.

Water quality is im portant to all of the above listed resources, either directly, as for fishes and invertebrates, or indirectly, as for cetaceans who are affected through their diet. In some cases,

detriments to water quality have led to the endangerment of species; in all cases, activities that threaten water quality also threaten these listed resources. Endangered and threatened species have experience d population declines that leave them vulnerable to a multitude of threats. Because of reduced abundance, low or highly variable growth capacity, and the loss of essential habitat, these species are less resilient to additional disturbances. For example, stressors that affect only a limited number of individuals were once tolerated with little impact to the species,

wherea s now, the same stressors are likely to reduce population viability. It is with this understanding of the environmental baseline that we consider the effects of the proposed action, including the likely effects that ANS and pollutants will have on endange red and threatened species and their designated critical habitat.

Effects of the Proposed Action , Traditional Approach

The Effects of the Action is the primary focus of an Opinion. For this Opinion, our analysis of the probable effects of the proposed VGP s on proposed and listed endangered and threatened species

and proposed and designated critical habitat are divided into two sections, the Traditional Approach, described here, and the Programmatic Approach, described below.

Following the Traditional A p proach, we first describe the population of vessels covered under

the VGPs. We then examine the consequences of exposing endangered and threatened species and designated critical habitat to the discharges authorize d by EPA’s proposed VGPs. W e organize ou r analyses by general stressor type, i.e., aquatic nuisance species (ANS) and

p ollutants. Under each section , we describe discharges authorized by the VGPs that are likely to produce either ANS or pollutant stressors

. For example, ballast water, hull fou li ng, and chain locker effluent are grouped as discharges that carry aquatic nuisance species (ANS). We first

characterize exposure of ESA listed species to the discharges author ized by the VGPs ; we also

describe the actions EPA will take to prevent expo sure of listed resources to authorized discharges. Next, we identify the physical, che mical, and biological stressors associated with94

vessel discharges . Then we review the literature describing the responses of threatened and endangered individuals , give n exposure to these stressors. Finally, w e summarize the risks pose d to the continued existence of populations, species

, or designated critical habitat

. Our purpose is not to provide a comprehensive review of the probable responses of and consequences to

e ndangered or threatened species ; instead, our intention is to identify the range of representative

responses and consequences we would expect given exposure to vessel discharges authorized by

EPA’s VGPs

.

Vessel Populations Covered by the VGPs

The demo graphics of the vessels to be c overed under the VGPs influence loading of stressors

. V essel size affects discharge volume. V essel service class and age generally determines the type and performance of equipment used onboard vessels and therefore the chara cteristics of discharges from the equipment . Vessel age structure also indirectly indicates the implementation

rate of build

- date dependent protective measures over the 5

- year permit period. Finally, distribution of vessel service classes among ports and harbors influences pollutant loading from VGP authorized discharges. The following paragraphs

, describing the vessel service classes authorized to discharge to waters of the U.S. under the VGPs

, are summarized in Table 3 and

Table 4

.

The types of vessels covered under the 2013 VGP include approximately 2,000 large commercial fishing vessels greater than 79 feet along with cruise ships, ferries, barges, mobile offshore

d rilling units, oil tankers or petroleum tankers, bulk carriers, cargo ships, container ships, other cargo freighters, refrigerant ships, research vessels, emergency response vessels, including firefighting and police vessels, and any other vessels operatin g in a capacity as a means of transportation. Approximately half of the vessel s covered under the sVGP are commercial fishing vessels involved in such activities as fish catching (e.g., longliner, shrimper, and trawler), fish processing, fishing tendering , and charter fishing. The other half are distributed among a variety of vessel types, including passenger vessels (e.g., water taxis, tour boats, harbor cruise ships, dive boats), utility vessels (e.g., tug/tow boats, research vessels, offshore supply boa ts), and freight barges ( USEPA 2010b ) . These vessels and their relative abundance are described

below.

VGP Vessels

EPA’s Notices of Intent (NOIs) database cannot be used alone to estimate the total number of vessels covered by the VGP Permit because only vessels greater than 300 gross tons or with the capacity to carry more than 8 cubic meters of ballast water were required to submit NOIs under the 2008 VGP. To estimate the population of domestically

- flagged v essels subject to the VGP, EPA used two existing databases, the Marine Information for Safety and Law Enforcement (MISLE) and Waterborne Transportation Lines of the United States (WTLUS) databases, to create a master database identifying approximately 60,0 00 vessels eligible for coverage. Using95

the Foreign Traffic Vessel Entrances and Clearances (FTVEC) database 3 , EPA estimated approximately 12,400 additional foreign

- flagged vessels also subject to the VGP requirements, making a total estimated vessel popu lation of 72,400 vessels. From these vessels, 43,431 active NOIs were submitted under the 2008 VGP as of August 2010. This represents about 60% of the estimated vessel population covered. The NOI form listed nine types of vessels under which the

vessel owners/operators could classify their vessel along with an option of selecting ve ssel

service class “Other

, ” with space to designate vessel type in writing. In addition to the vessels

identified in Table 4

, about 1 0,000 were identified as “other”. These include 9,839 vessels for which no vessel class was specified, while 2,044 others self

- identified as some variety of cargo vessel, 143 as tug/tow boats, 115 as crew/supply/support vessels, 83 as chemical/oil tankers , 34 as barges

, and 18 as passenger vessels. These vessels are integrated into the table of relative service class distribution and demographic properties for vessels submitting NOIs and with tonnage/ballast water capacity ( Table 4 ).

The EPA

- provided metrics in Table 3 include median 4 values for vessel gross tonnage, ballast capacity and maximum persons aboard along with the proportion of vessels with on board

treatment and using antifouling coatings. In addition to these metrics, FWS used the build dates reported in the NOI database to estimate the proportion of vessels within each service class that are 5 years of age or younger. This provides an index of the expected im plementation rate of

build date

- dependent measures 5 within the permit.

Barges. B arges represent the greatest number of vessels permitted under the VGP, with 20,444 uniquely identified vessels. Barges are large, flat

- bottomed boats typically used to move cargo in inland waterways. There are many types of barges, including hopper barges, chemical barges, fuel barges, crane barges, dry bulk cargo barges, etc. Barges are usually not powered vessels, but are instead pushed or pulled by tugboats. Build dates for barges reported in the NOI indicate that 21% of barges are less than 5 years old. Because of their relatively small size (vessel tonnage), ballast capacity, and maximum persons aboard, most discharges incidental to the normal operation of these vessel s are of limited concern. EPA included barges in its analysis due to the large number of barges in operation.

Oil and Gas Tankers. Oil and gas tankers represent the second greatest number of vessels permitted under the VGP, with 3,363 uniquely identifi ed vessels. Oil tankers are designed to carry oil and other petroleum products in bulk tanks. Oil and gas tankers are large utility vessels,

3 The FTVEC database provides information on foreign vessels entering or clearing U.S. Customs ports in calendar year 2008, the most recent year for which data are published (USACE, 2010).

4 The median of a set of observations is the center value in the dataset where half of the observations are below and half are above. As a measure of central tendency, the median is robust against the influence of outliers and extreme values found in skewed data, that i s, not distributed symmetrically around the mean. When the mean is greater than the median, it suggests the data are skewed such that it is influenced by a few larger values.

5 The VGP requires biannual graywater monitoring for vessels with a maximum ca pacity to overnight 10 or more crewmembers and constructed on after December 19, 2013. In addition, all vessels constructed on or after December 19, 2013 must use an environmentally acceptable lubricant in all oil

- to

- sea interfaces. Older vessels

techni cally able to use environmentally acceptable lubricants must do so and those which cannot, must report the use of unsafe lubricants in their Annual Report to EPA.96

second only to large cruise ships in size (median tonnage equal to approximately 25,000 gross tons). Moreover, the median ballast water capacity of these vessels is very relatively large (24,000 m 3 ). Nearly all oil and gas tankers also use anti foulant coatings to reduce attachment of organisms to the vessel hull. Approximately half of these vessels (47%) are less t han 5 years old. EPA included oil and gas t ankers in their analysis because of the ir prevalence at certain ports, their overall size, their l arge ballast water capacity, likelihood they are engaged in long distance voyages, and their use of AFCs.

Large Comme rcial Fishing Vessels 6

. Large commercial fishing vessels are those greater than 79 feet in length that are engaged in the catching, taking, or harvesting of fish, crabs, lobster, shrimp, or other aquatic organisms for commercial sale. The MISLE 7 database ( USCG 2009 ) indicates there are 2,326 commercial fishing vessels larger than 79 feet in length that are eligible for coverage under the VGP. The median ballast water capacity of these vessels is moderately high (1,388 m 3 ), as is the number of cr ew/passengers aboard. In addition, only 13 percent of the large commercial fishing vessels are less than 5 years old. Commercial fishing vessels generate fish hold and fish hold cleaning waste streams that are unique to commercial fishing vessels, and

th ese waste streams have been shown to contain relatively high concentrations of conventional pollutants and nutrients ( USEPA 2010b ) . Since most large commercial fishing vessels are

concentrated in a limited numb er of home ports, and since fish holds are frequently discharged and cleaned by vessel crews between catches, EPA included large commercial fishing vessels in its analysis. (Note that industrial operations from vessels used as seafood processing facilities are not subject to the VGP because these operations are not incidental to the normal operation of a vessel engaged in a capacity of transportation).

Large Cruise Ships. Large cruise ships are the largest vessels (by size) covered under the VGP.

Median ve ssel tonnage (53,526 gross tons) is approximately twice that of even the large oil and gas tankers. While the actual number of large cruise ships seeking coverage under the 2008 VGP is low (only 127 vessels), the number of crew and passengers aboard is rel atively high

- approximately 3,500 per vessel. EPA NOI data indicate that 20% of large cruise ships are less than 5 years old. Because of the large number of crew and passengers living on

- board cruise ships, graywater generation can average nearly 600 m 3 / day (158,500 gal/day). Median ballast water capacity of large cruise ships vessels is moderate (3,136 m 3 ). A high percentage of large cruise ships also use AFC. Moreover, since aesthetics are important to the industry, deck washdowns may be performed more frequently on cruise ships than other types of vessels. The

6 Public Law 110

- 299 subsequently extended by Public Law 111

- 215 provided for a temporary mor atorium on NPDES permitting for all commercial fishing vessels. The moratorium on NPDES permitting for commercial fishing vessels expires on December 18, 2013 and therefore all commercial fishing vessels larger than 79 feet will be required to obtain permi t coverage under the VGP in the event the moratorium is not extended.

7 The U.S. Coast Guard’s Marine Information for Safety and Law Enforcement (MISLE) database provides a wide range of information regarding vessel and facility characteristics, accidents, marine pollution incidents, and other pertinent information tracked by the U.S. Coast Guard. The USCG MISLE database provides information on a wide ensemble of vessels, including identification numbers, vessel category, size, area of operation, passenger and crew capacity, propulsion method, construction material and design, and year built or age.97

above factors led EPA to include large cruise ships in its analysis.

Medium Cruise Ships. Medium cruise ships are those ships authorized to carry 100 to 499 passengers for hire and provide overni ght accommodations to those passengers. Although only 22 medium cruise ships are included in EPA’s NOI database, these vessels are relatively large, ranging in size from approximately 1,500 gross tons up to 5,000 gross tons, and have ballast capacities ran ging from approximately 350 to 400 m 3 . Only 14% of these vessels are less than 5 years old. With passenger and crew capacities up to 499 persons, medium cruise ships have the potential to generate more than 20,000 gallons/day of graywater. Untreated grayw ater from medium cruise ships has been shown to contain similar pollutants to those in untreated graywater discharges from large cruise ships ( ADEC 2006 ; 2007 ) . In addition, most medium cruise ships use AFC to prevent biofouling of the vessel hull.

Large Ferries. The NOI database includes 118 large ferries , 12 percent of which are less than 5 years old. Large ferries are vessels for hire that are designed to carry passengers and/or vehicles between two ports, usually in inland, coastal, or ne arshore waters. For purposes of the VGP, large ferries are those ferries authorized to carry a) more than 100 tons of cars, trucks, trains, or

other land

- based transportation or b) 250 or more people. Large ferries usually travel the same

route several tim es a day but do not provide overnight accommodations to their passengers. Because many ferries can travel the same route several times per day, they can discharge pollutants from a variety of sources (e.g., graywater, bilgewater, and seawater engine and

ex haust cooling) to same water body. EPA included large ferries in its analysis due to these potential discharges.

Cargo [Bulk] and Other Carriers. Cargo carriers (e.g., bulk carrier, freighters, roll

- on/roll

- off, container ships) comprise the majority of the “Other” vessels classified in the NOI database. The attributes of this group of vessels are similar to those of the oil and gas tankers in terms of vessel size (median tonnage equal to approximately 16,000 gross tons) and median ballast water capacity (10,198 m 3 ). Approximately 61 percent of the owners/operators of these vessels reported using on

- board treatment systems to treat the various waste streams aboard the vessels, and fewer use AFC. This is the youngest vessel population reporting in the NOI, with 56% of

the vessels less than 5 years old. EPA included cargo carriers in its analysis due to their ballast water capacity and prevalence at certain ports.

Emergency and Research Vessels. The emergency and research vessels types include relatively

f ew numbers of vessels and are relatively small in size, ballast capacity, and number of passengers/crew. Build date data indicate that 16% of research vessels are less than 5 years old and only 3% of emergency vessels are less than 5 years old. Additional ly, these vessels do not tend to engage on longer voyages where they can serve as a vector for invasive species (exceptions on voyage movements include large research vessels such as those operated by NOAA and the maritime services industry). Furthermore, the areas of operation for these vessels are not centrally located in any one home port or region. For these reasons, EPA considered discharges from these vessels to be discountable for purposes of the Endangered Species Act and

does not consider that thes e vessel types warrant extensive analysis in the BE.98

Table 3 . Distribution of vessel service classes, equipment, and metrics among VGP covered vessels submitting NOIs and reporting vessel tonnage/ballast water capacity ( USEPA

2012 a )

.

Vessel

Service

Class Estimated

Number of

Vessels Median

Gross Tonnage Median

Ballast Capacity (m 3 ) Median

Maximum

Persons

Aboard % Vessels

w/On

- board

Treatment % Vessels

Using Anti

fouling Hull Coatings % Vessels

0

- 5 Years of Age

Barges 20,44 4 a 705 206 4 1 4 21

Oil and Gas

Tankers 3,363 b 24,908 23,893 22 78 80 47

Large

Commercial Fishing 2,326 c 1,997 1,388 29 41 85 13

Large

Cruise Ships 127 53,526 3,136 3,455 79 84 20

La rge Ferries 118 1,451 404 559 45 86 12

Medium

Cruise Ships 22 4,584 364 315 50 82 14

Bulk Cargo

and Other

Carriers 2,044 d 15,939 10,198 25 61 65 56

Research

Vessels 82 1,780 425 41 78 95 16

Emergency

Vessels 56 563 332 16 43 96 3

a “Other” was selected for 34 NOIs and some variety of barge was designated.

b “Other” was selected for 83 NOIs and some variety of oil/chemical tanker was designated.

c Fishing vessels greater than 79 feet long, data from ( USCG 2009 )

d “Other” was selected for all 2,044 bulk cargo and other carriers with some variety of carrier specified. These were were dominated by: general cargo/not otherwise specified (91percent); car/tr uck carrier (3.6 percent); refrigerated cargo (2.3 percent); log/lumber/woodchip carrier (1.2 percent); and roll

- on roll

- off cargo, cement, grain/ore and ore/oil (cumulatively less than one percent) ( USEPA 2012 b )

.

sVGP Vess els

EPA estimates that between 115,000 and 138,000 vessels may be covered by the sVGP. The primary source of information used to characterize these vessels and their discharges is EPA’s Study Report to Congress: Study of Discharges Incidental to Normal O peration of Commercial Fishing Vessels and Other Non

- recreational Vessels Less than 79 Feet ( USEPA 2010b ) . EPA’s BE and the Report to Congress do not provide the same level of detail on the distribution of

ball ast capacity, onboard treatment and the presence of antifouling coatings for sVGP vessels as was provided for VGP covered vessels. Details for sVGP eligible vessels are provided for hull material and horsepower ( Table 4 ).

Approximately half of the sVGP eligible vessels are commercial fishing vessels involved in such99

activities as fish catching (111,094 vessels, e.g., longliner, shrimper, and trawler), fish processing, fishing tendering , and charter fishing. The ot her half are distributed among a variety of vessel types, including passenger vessels (34,609 vessels, e.g., water taxis, tour boats, harbor cruise ships, dive boats), utility vessels (18,743 vessels, e.g., tug/tow boats, research vessels, offshore supply boats), freight barges (11,596 vessels), freight ships (1,102 vessels) along with 35,578 vessels with unspecified service class ( USEPA 2010b ) ( USCG 2009 )

. Recreational vessels are generally excluded b ecause a separate act (the Clean Boating Act of 2008 (P.L. 110

- 288)) exempts discharges incidental to the normal operation of these vessels from NPDES permitting requirements. The Clean Boating Act defines recreational vessels as those that are either 1) m anufactured or used primarily for pleasure or 2) leased, rented, or chartered to a

person to use for pleasure . Furthermore, vessels that are subject to U.S. Coast Guard inspection and that are either engaged in commercial use or that carry paying passenger s are not considered recreational vessels under the Clean Boating Act.

Hull Materials. According to the analysis in EPA’s report to Congress, the three most common hull material types among sVGP eligible vessels are fiberglass, wood, and steel in order of most common usage. Commercial fishing vessels with wood hulls account for over three quarters of the total number of wood hulled vessels, although wood is also used in the hulls of a significant share of freight ships and passenger vessels less than 79 fe et in length. The type of hull material affects the type of anti

- foulant coatings that are applied and has implications on vessel discharges and receiving water quality. For example, steel hulls often have an anti

- corrosive as well as anti

foulant hull coa tings. The type of hull material may also affect the frequency with which certain maintenance procedures such as hull inspections are conducted ( USEPA 2010b )

.
Vessels less than 5 years old. Vessel age, for the purposes of this Biological Opinion, is an indicator of the implementation rate for build date dependent measures specified by the VGPs. The sVGP requires that “All motorized vessels constructed on or after December 19, 2013 must have a functioning fuel

- ai r separator or a fuel tank vent to prevent a fuel spill.” In addition, for both VGPs, all vessels constructed on or after December 19, 2013 must use an environmentally acceptable lubricant in all oil

- to

- sea interfaces. Older vessels technically able to use environmentally acceptable lubricants must do so and those which cannot, must report the use of unsafe lubricants in their Annual Report to EPA.

Self Propelled Vessels and Horsepower Ahead. Not all vesse ls covered by the sVGP are self

propelled; rat her they are moved about by other vessels (e.g. tug boats, tow boats). Horsepower ahead represents the rated power of a vessel’s engine in forward motion (as opposed to horsepower astern) and is expressed as the work accomplished per unit of time (e.g., 1 hp = 550

foot

- pounds of work per second). This power is transferred to the propulsion mode (e.g., jet or propeller) to create thrust and determines the vessel’s speed at any given weight, or the weight that can be moved at any given speed. Vessel power rating may determine the amount and characteristics of discharges from operating vessels by affecting the size, type, and complexity of onboard propulsion equipment. Most sVGP eligible vessels have a horsepower rating between 100 and 500 hp, with fewer ha ving horsepower ratings of 500 to 1,000 hp.100

Table 4 . Vessel metrics for sVGP eligible vessels with specified length less than 79 ( USEPA

2012 a )

.

Vessel Service

Class Number of

Vessels Distribution of 3

Most Common Hull

Materials Nu mber

Vessels 0

- 5

Years of Age a,b Number of

Self Propelled

Vessels a Horsepower Ahead for

Vessels Reporting Horsepower c

Commercial Fishing Vessel 111,094 fiberglass 19,433 wood 21,479 steel 7,805 3,125 54,258 5k or more 21

1

– 5k 443

500

– 1k 1732

100

– 500 8478

<100 1364 Passenger

Vessel 34,609 Fiberglass 8,022 wood 5,002 steel 1,633 2,502 17,061 5k or more 1

1

– 5k 642

500

– 1k 1,808

100

– 500 4,473 <100 1,059 Unspecified 37,578 fib erglass 6,595

wood 859 steel 1,998 2,648 16,392 1

– 5k 27

500

– 1k 142

100

– 500 1,570

<100 606 Utility Vessel 18,743 fiberglass 408

wood 510 steel 7,082 920 8,698 5k or more 2

1

– 5k 711

500

– 1k 1,174

100

– 500 1,159

<100 111 Freight Barge 11,596 fiberglass 20

wood 87 steel 4,391 321 320 1

– 5k 1

500

– 1k 4

100

– 500 13

<100 4 Freight Ship 1,102 fiberglass 3 8

wood 285

steel 224 19 610 5k or more 1

1

– 5k 5

500

– 1k 16

100

– 500 54

<100 9 Tank Barge 1,144 fiberglass 4

wood 2

steel 323 50 48 500

– 1k 6

100

– 500 1

<100 2 Public Vessel,

unclassified 684 fiberglass 16

wood 1

steel 5 13 123 5k or more 2

1

– 5k 1

500

– 1k 2

100

– 500 4

<100 2 Tank Ship 220 fiberglass 0

wood 6

steel 43 5 85 1

– 5k 1

500

– 1k 2

100

– 500 19

<100 10

a Based on operational, U.S. flagged commercial fishing vessels and other non

- recreational vessel less than 79 feet (including vessels of unspec ified length) identified in the 2009 MISLE database ( USEPA 2010 )

b Vessel age was either not reported or an invalid age (i.e. less than zero) was reported for approximately 43,000

vessels.

c Horsepower ahead wa s not reported or an invalid value was reported for approximately 114,000 vessels.101 Aquatic Nuisance Species

Exposure Analysis

The introduction of non

- native species is one of the leading causes of species endangerment and

extinction , second only to h abitat loss (Wilcove et al. 1998)

. S hipping has led to more ANS

introduction s than any other source ( Fofonoff et al. 2003 ). Within the broad category of shipping, b allast water and hull fouling are the primary vectors for ANS introduction to coastal

and marine environments ( Ruiz et al. 2000 )

, which are among the most heavily invaded systems

on earth ( Grosholz 2002 )

.

Globally, hull fouling and ballast water have been identified as the source of 228 (57%) marine ANS invasions (Molnar 200 8). In North America, these vectors were identified as the source for 164 of 316 (52 percen t) marine invertebrate and algal invasions ; t hese vectors were identified as a possible source for another 87 (27.5 percent) invasions

, f or a total of 251 ( 80 perce nt) invasions (Fofonoff et al. 2003). At least 40 introductions of 32 non

- native fish species have been linked to ballast water transport ( Wonham et al. 2000 )

. As indicated in the BE, biofouling is likely a

gr eater threat than ballast water. Globally, 39% of marine ANS invasions were linked to hull fouling, whereas 31% of marine ANS invasions were likely to have been transported via bal last water (Molnar 2008). Bax et al. (2003) identified hull fouling as the source of 36% of the nonnative coastal marine species established in continental North America (Bax et al. 2003), whereas ballast water only accounted for 20% (Carlton 2001).

Pro pagule pressure is the quantity, quality, and frequency with which propagules (ANS or their larvae, eggs, spores, etc.) are introduced to a given location (NAS, 2011). The invasion process begins when an organism survives transport by a vector and is rele as ed into a novel environment. It may survive, reproduce, and spread throughout its environment; however, its success ful

establishment depends upon a myriad of factors, including: basic climatic factors, food resources, its reproductive strategy, competit ion, predation, and parasitism (Carlton, 1996 ).

While s pecies are most likely to be adversely affect ed by ANS after establishment, even limited exposure to an ANS organism can result in adverse effects, such as disease transmission.

The rate of ANS intro ductions h as increased over time as vessel t raffic has increased. For example, i n the San Francisco Bay/Inland Delta , ANS were introduced an average of once every 36 weeks from 1850 to 1995, but in the last ten years (from 1985 to 1995), ANS were introduc ed once every 12 weeks ( http://anstaskforce.gov/more_impacts.php ). Invasion rates also differ by

location. In the Lower Columbia River Basin, t he ANS invasion rate is one every 20 weeks (Sytsma, 200 4) ; in the Great Lakes the rate was one invasion every 28 weeks , although no new

invasions have been documented in the Great Lakes since 2006 (USEPA, 2012a ).

For the vector s described below, we estimate the number of vessels authorized by the VGPs and

ov erall discharge volumes. W e also attempt to provide a broad estimate of the number of ANS102

released to waters of the U.S., as authorized under the VGPs. W e desc ribe EPA’s proposed actions that are likely to minimize the exposure of listed resour ces to ANS . Finally, w e summarize the likelihood that ESA listed resources would be exposed to ANS as a result of vessel discharges. When possible, we provide quantitative estimates, but in most instances, these

data are not available . We therefore review the bes t available scientific data to provide a qualitative analysis of the risk of ANS invasion and the exposure of listed resources (NAS 2011; G. Ruiz, J. Carlton, pers. comm.).

Hull Fouling

Biofouling of hulls is a significant, if not the single greatest, so urce of ANS invasions. For example, 90 percent of the 343 marine aquatic invasive species in Hawaii are thought to

have arrived via hull fouling (Carlton 2001), while 36 percent of the nonnative coastal marine species established in continental North Ame rica are attributed to hull fouling (Bax et al. 2003).

Approximately 800 million square meters of hull area arrives in the U.S. annually (Miller et al. 2007). As described in EPA’s BE (EPA 2012a)

, Miller et al. (2007) investigated the extent of

biofouli ng on 21commercial vessels and found that even the best

- maintained commercial vessels

had biofouling on up to 5% of their wetted surface, while 10 drydocked ships were covered over

5 to >90% of the ir wetted surface. Container ships are expected to have th e lowest levels of

b iofouling due to their fast speeds and short port durations. In a study of 22 in

- service container

s hips at the Port of Oakland, Davidson et al. (2009) found low levels of biofouling on 21 hulls; however, biofoulin g covered 90% of one hull. T axonomic richness was high among all container ships. A study of underwater video and scrapings taken from 20 vessels shortly after

their arrival to the Great Lakes estimated that total abundance averaged > 170,000 invertebrates

per vessel, belon ging to 109 species (Sylvester and MacIsaac 2010). A study of 40 transoceanic vessels arriving in Vancouver and Halifax estimated that total abundance averaged up to 600,000 invertebrates per ship belonging to 156 species (Sylvester et al., 2011).

Hull fouling ANS are generally bottom

- associated sessile and sedentary organisms ( http://www.serc.si.edu/labs/marine_invasions/vector_ecology/fouling.aspx ) . They attach in

succession : a slime layer of bacteria and algae colonizes first; barnac les, bryozoans, and tube

worms follow; and with this base established, mollusks, sponges, sea squirts, and seedweed are able to colonize (BE) . Highly developed fouling communities may provide microhabitats for mobile organisms, such as fish, crabs, and sea stars ( Underwater Husbandry ). These organisms are able to release themselves, gametes, or fragments into aquatic environment s encountered by the vessel, including novel harbors and waterways.

To remove biofouling organisms, and to reduce or slow the attachment of new organisms, vessels perform underwater ship husbandry or hull husbandry, i.e., the maintenance of the underwater portions of a vessel. Hull husbandry includes the appl ication of antifouling coatings (AFCs) and removal of biofouling organisms during dry dock periods, as well in

- water hull cleaning. The shipping industry performs h ull husbandry primarily for economic reasons. Biofouling on a ship’s hull increases the hyd rodynamic drag of the vessel and leads to increased103

fuel consumption (Chambers et al., 2006). It has been estimated that fouling increases the annual fuel consumption of the world’s commercial shipping fleet by 40 percent, or 120 million tons of

fuel at a cost o f about $ 7.5 billion per year, in year 2000 dollars (GISP, 2008).

Underwater hull cleaning can be quite effective at removing marine fouling; however, the effluent stream from cleaning is difficult to control. The potential for ANS release resulti ng from the uncontained discharge of underwater cleaning effluent is widely recognized. For example, underwater hull cleaning has been banned by the ANZECC Code of Practice (ANZECC, 1997). Underwater hull cleaning is also prohibited in California, Maine, and Massachusetts (Underwater husbandry).

As described in the BE, underwater hull husbandry has the potential to spread ANS by releasing

them into the environment. To examine the ANS risks posed by various hull cleaning operations, researchers from the New Zealand National Institute of Water and Atmospheric

Research ( NIWA) visited hull cleaning facilities in four New Zealand ports where vessels were removed from the water for cleaning (drydock and haul

- out facilities) or where fouling organisms were remo ved underwa ter by divers (Floerl, 2005). For the operations examined, physical removal of fouling assemblages from vessel hulls did not result in mortality of all organisms. Most fouling organisms (72%) survived and remained viable after removal using

unde rwater hull cleaning methods, which did not involve exposure to air or high

- pressure water blasting. The overall viability of organisms removed from hulls was lowest in haul

- out facilities (16 %) and drydock facilities (43 %), where fouling organisms were often exposed to air, high

pressure freshwater blasting

, and tr ampling.

Vessel hull fouling and underwater husbandry thus provide two pathways for ANS invasions.

To address these concerns
, EPA included the following requirements in the VGP (suggested

me asures are not included ; for example, the VGP does not require AFCs, but if owners/operators use AFCs, they are required to “give consideration” to selecting products that maximize efficacy

but minimize adverse environmental effects ) :

 M inimize the transp ort of attached living organisms when traveling into U.S. waters from outside the U.S. economic zone or between Captain of the Port zones.

 For underwater hull cleaning, vessel owners/operators must, when feasible, use a vacuum or other control technologi es to minimize the release of dispersion of fouling organisms

into the water column

To address ANS hull fouling concerns, EPA included the following requirements in the s VGP :

 M inimize the transport of any visible living aquatic organisms from one waterb ody to another by regularly cleaning and maintaining the hull

 Vessel hulls must be periodically inspected, and if necessary, cleaned to prevent the spread or dispersal of potentially invasive species

 Prior to transporting the vessel from one waterbody to another overland, you must inspect the visible areas of the vessel for any attached or visible stowaway living organisms. If organisms are found, they must be removed and appropriately discarded onshore. Removed organisms may not be discharged into wate rs subject to this permit.104

It is not clear, from reading the BE or the permits, the extent to which these requirements will minimize the risk of ANS invasions. For example, EPA requires vessel owners to minimize the transport of ANS, but EPA does not re quire anti

- fouling coatings in either the VGP or the sVGP. If vessel owners/operators use AFCs, EPA requires that they “give consideration” to selecting the most effective product for their vessel type, but EPA does not provide guidance on which

AFCs are the best available technology for each vessel type. The sVGP requires hull cleaning but does not require that debris containment systems be used to collect ANS. The VGP requires the use of such technology when feasible ; however, the BE states that vacuum systems “are not widely commercially available; hence EPA has not required that they must be used in this permit,” (BE). We conclude that listed resources retain appreciable exposure to ANS via hull fouling and hull husbandry despite measures in the VGPs to reduce this exposure

.

The permit requirements to “minimize” ANS are not likely to result in major changes to vessel operations. Therefore, we will use the above estimates of hull area and hull fouling coverage to provide a rough estimate of fouling o rganisms . It is important to not e that not all hull fouling organisms are non

- native; not all are likely to become invasive; and not all are likely to affect listed species and critical habitat. We do not have data to tease out these variables; therefore, our estimate is the worst

- case scenario of bio fouling.

According to the U.S. Maritime Administration, there are ~60,000 vessel calls at U.S. ports annually ( http://www.marad.dot.gov ). As described above, Sylves ter et al. (2011) estimated hull fouling propagule pressure at 600,000 invertebrates per vessel . This provides a rough estimate of

36 billion hull fouling organisms entering waters of th e U.S. annually. This estimate does not

differentiate between native and non

- native species and does not account for multiple calls made by the same vessel

.

While we are unable to quantitatively estimate how many of these organisms are likely to become established in waters of the U.S. (NAS 2011), we used the NEMESIS da tabase to quantify the annual number of newly documented hull

- fouling ANS, since the first year of the previous VGP (2008). It should be noted that this database does not include all ANS that were introduced by hull fouling ; rather, it represents the numb er of ANS, introduced by hull fouling,

which were documented, nationwide. In using this database, we expect considerable ascertainment bias, i.e., greater effort is likely to increase the number of ANS detected. Also,

this number of documented ANS likely underestimates the total number of invasions because there are no monitoring programs throughout many of the waters of the U.S., and funding cuts are likely to further reduce the number of programs looking for ANS . Still, these data provide a qualitative measure of exposure . From 2008 to 2011, the annual mean was 13.5 newly

documented hull

- fouling ANS invasions nationwide (95% CI: 11.3

– 15.7).

The VGPs require few explicitly mandat e d anti

- fouling/hull husbandry practices or technologies ; their requi rements are not likely to result in substantial changes to biofouling ANS invasion

rates. W e estimate that a minimum of 14 hull

- media ted ANS invasions are likely to occur
nationwide each year the permit is in effect . As described above, we expect this to be a gross

underestimate of ANS invasions. Although not all ANS introductions may result from VGP or

sVGP

- regulated vessels and not all introductions will ultimately overlap with listed resources;105

w e conclude that there is at least a small likelihood tha t listed resources would be exposed to ANS invasions as a result of hull fouling and hull husbandry of VGP and sVGP vessels

.

Ballast Water

Ballast water is water taken onboard in large volumes to assist with vessel draft, buoyancy, and stability. It is taken from coastal port areas and transported with the ship to the next port of call

, where the water may be discharged or exchanged. If a ship is receiving or delivering cargo to a number of ports, it may release or take on a portion of ballast water at each port. Large commercial vessels (e.g., container ships, bulk carriers, other cargo vessels, tankers, and passenger vessels) normally have ballast tanks dedicated to this purpose, and some vessels may also ballast empty cargo holds. The discharge volume varies by vessel type, ballast tank capacity, and type of deballasting equipment.

According to the BE, the VGP would authorize discharges from approximately 72,000 vessels;

many of these vessels utilize ballast water

. The sVGP would authorize discharge s from 115,000

to 138 ,000 vessels; however these vessels (i.e., commercial fishing vessels less than 79 feet, passenger vessels, and utility vessels ) tend to not utilize ballast water frequently, in high volumes, nor do they tend to engage on long internat ional voyages . Further, the BE notes that according to the U.S. Coast Guard: vessels less than 100 feet “typically operate in more sheltered environments and do not load and discharge ballast. Their stability characteristics generally

accommodate the amou nt and type of cargo they carry, precluding the need to use ballast as a stability enhancer.” ( USCG 2008 )

A National Academy of Science study estimates that ~52 billion gallons ( 196 million metric tons) of ballast water are discharged annually (NAS)

. Ballast water that originated from outside of North America (i.e., that was taken on from a foreign source port) accounted for 28.5 percent of the total discharge volume, and the remainder came from other ports or locations within the U.S. and Canada (NAS)

.

Vessel class e stimates of ballast water discharge volumes reported in the BE are based on median ballast water capacity for those vessels that have ballast tanks ( USEPA 2011 a ) . The

median is the middle observation in a dataset or 50 th percenti le. It a more robust measure of central tendency than the mean when the data are not symmetrically distributed around the mean (i.e., the data are skewed). However, reporting the median alone does not provide much useful

information about the distributi on of the data such as the direction of s kew or range of observations, n or does it represent a plausible worst case scenario. FWS used data reported to the NOI database to generate a more complete characterization of the distribution of ballast water

capa city among VGP eligible vessels ( Table 5 )

. The distribution of ballast water capacity is strongly positively skewed for all vessel service classes, meaning that the majority of the observations are below the mathematical mean. The skew is particularly st rong for barges, cargo carriers and large cruise ships.106

Table 5 . Vessel service class relative distribution of ballast water capacity reported in the NOI database (all values except

skew are m 3 )

.

Vessel Service Class Number o f Vessels Reporting

Ballast Water Capacity Mean Standard

Deviation Minimum Median (50 th
Percentile) 75 th

Percentile Maximum Skew

Barge 4692 2,477 57,302 8 447 1,030 3,543,700 54.9
Bulk Cargo and Other

Carriers 6311 23,950 37,565 9 16,618 30,887 1,567,953 21.4

Commercial Fishing

Vessel 211 6,691 12,765 12 594 6,775 78,007 2.9

Emergency Vessel 41 3,003 16,211 12 332 468 104,036 5.9
Large Cruise Ship 146 15,527 145,092 19 3,041 4,625 1,756,454 11.8
Large Ferry 44 2,806 8,022 17 387 1,625 51,224 5.0

Medi um Cruise Ship 29 2,273 5,845 9 404 1,689 26,744 3.3

Oil or Gas Tanker 3955 32,522 29,951 17 23,473 42,018 662,128 3.6
Passenger 47 5,469 35,332 11 80 213 242,423 6.4
Utility 832 3,550 19,401 8 190 780 255,680 8.4107

The uptake and discharge of ballast water potentially transports planktonic (i.e., occur in the water column) ANS to novel water bodies

. Benthic ANS can also be transferred wh en sediments are taken in along with ballast water. Ballasting and deballasting occur through openings in

vessel hulls, which are usually covered by protective gates that are permeable to viruses, bacteria, diatoms, algae, and invertebrate larvae (especially mollusks and crustaceans); however, corrosion or the loss of these grates permits larger organisms, including postlarval fish, to be

ballasted ( Wonham et al. 2000 )

.

On any given day, approximately 7,000 individual species may be “in motion” in ballast tanks ( Carlton 2001), and there is no evidence that ship age, seasonal timing, or age of ballast water affects the abundance of individuals or species in the ballast tanks ( Drake and Lodge 2007). When species in ballast tanks are transported betwe en water bodies and discharged, they have the potential for establishing new, non

- indigenous populations that can cause severe economic and ecological impacts to waters of the U.S

. It is not possible to quantitatively assess the number and type of ANS that have the ability to establish a viable population from the 7,000 individual species currently being carried in ballast tanks ( NAS 2011).

It is possible, however, to link past ANS invasions to ballast water (NAS 2011). In t he

Laurentian Great Lakes , whi ch are among the best

- studied freshwater ecosystems in North America, 55

– 70% of the 180 ANS invasions are attributed to ballast water release (Ricciardi, 2006; Kelly et al., 2009; Holeck et al., 2004). For coastal marine ecosystems in western North

Amer ica

, 10

- 50% of over 250 invasions are attributed to ballast water release (Carlton 1979; Cohen and Carlton 1995; Ruiz et al. 2011).

Though t he density of organisms in ballast water is just one of many variables that influence the probability that an inva sive species will successfully establish a population in U.S. waters

, there is evidence that significantly reducing the density of organisms in ballast water will reduce the probability of invasions , when controlling for all other variables (NAS 2011) . Thu s, establishing a benchmark discharge standard to reduce concentrations of coastal organisms below cur rent levels is a logical first step.

Under current U

. S

. laws, regulations, and permitting requirements, existing best management practices are required t o help reduce the potential impacts of ANS from ballast water discharges. These include ballast water exchange 8 and saltwater flushing 8 9 for certain vessels/voyages. These

8 “Ballast Water Exchange” means to replace the water in a ballast tank using either “Flow through exchange” or “Empty/refill exchange”. “Flow through exchange” means to flush out “ballast water” by pumping in water from the “mid

- ocean” or “coastal exchange zone” (as applicable) into the bottom of the tank and continuously overflowing the tank from the top until three full volumes of water has been changed to mini mize the number of original organisms remaining in the tank. “Empty/refill exchange” means to pump out the “ballast water” taken on in ports, estuarine, or territorial waters until the tank is empty, then refil ling it
with water from the “mid

- ocean” or “co astal exchange zone” (as applicable); when conducting empty/refill exchange, masters/operators should pump out as close to 100 percent of the “ballast water” as is safe to do so (adapted from 33 C.F.R 151.2025(b) (definition of “exchange”)).

9 “Saltwater f

lushing” means the addition of “mid

- ocean” or “coastal exchange zone” water to empty ballast water tanks; the108

practices have been shown to offer some protection in mitigating the transfer and po tential introduction of invasive species. While useful in reducing the presence of potentially invasive organisms in ballast water, ballast water exchange is not feasible for all vessels (e.g., vessels that cannot voyage offshore), can have variable effect iveness, and in some circumstances may not be

feasible due to vessel safety concerns (Albert et al. 2010).

One way to address these limitations associated with ballast water exchange is to require treatment of ballast water prior to discharge to meet an established standard for the concentration of living organisms. On March 23, 2012, the US Coast Guard published final regulations to phase in ballast water treatment requirements which became effective on June 21 of that year. These regulations established a standard for the allowable concentration of living organisms contained in ships’ ballast water discharges.

Similarly, t o reduce the number of ANS in ballast water , EPA has included several requirements in the VGP. The following requirements are likel y to reduce the exposure of listed species to

ANS:

 Minimize or avoid ballast water discharge and update in critical habitat

 Ballast water numeric discharge limits (consistent with the Coast Guards 2012 standards):

 < 10 living organisms/m 3 ballast water, fo r organisms greater than or equal to 50

micrometers

 < 10 living organisms/mL ballast water, for organisms less than 50 micrometers and greater than or equal to 10 micrometers

 Vessels may meet the above standards by one of the following management methods

 O nshore treatment of ballast water

 Use of public water supply for ballast water

 No discharge of ballast water

 Ballast water treatment system (with additional testing, calibration, and reporting requirements)

The EPA concluded that their VGP numeric effluen t limit s are likely to result in a “very s mall absolute risk of invasion” ( US EPA 2012 a ). A s described in their BE, an estimated 196 million

m 3 of ballast water is released into U.S . waters annually. Therefore, EPA requirements authorize

an annual dischar ge of:

 < 1.96 billion living organisms, greater than or equal to 50 micrometers

 < 1.96 trillion living organisms, less than 50 micrometers and greater than or equal to

10 micrometers

mixing of the added water with residual ballast water and sediment through the motion of the vessel; and the discharge of the

mixed water until lo ss of suction, such that the resulting residual water remaining in the tank has either a salinity greater than or equal to 30 parts per thousand (ppt) or a salinity concentration equal to the ambient salinity of the location where the upta ke of

the added w ater took place (adapted from 33 C.F.R. 401.30(f)(1)).109

For the above calculation, we assumed that all released ballast water i n waters of the U.S. would be subjected to the numeric discharge limits of the VGP; however, we know that some vessels are allowed to discharge without meeting numeric limitations. This is a confounding factor which may make our methodology result in an u nderestimate of the numbers of living organisms discharged. There are several vessel types that are not subject to the numeric limits of the VGP (e.g., vessels covered by the sVGP). On the other hand, we assume that all vessels will discharge

at the maxim um allowable concentration for their full discharge events; a situation which results in the overestimation of the actual number of living organisms discharged by these vessels. For our estimates, we calculated the annual number of living organisms that E PA authorized to be

released in ballast water using the VGP numeric effluent limits

. Because some vessels would not be required to meet numeric treatment limits

, the total number of living organisms in ballast

water that EPA authorizes to be released into waters of the U.S. is likely:

 > 1.96 billion living organisms, greater than or equal to 50 micrometers

 > 1.96 trillion living organisms, less than 50 micrometers and greater than or equal to

10 micrometers

While we are unable to quantitatively estimate how many of these organisms are likely to become established in waters of the U.S. (NAS 2011), we used the NEMESIS database to quantify the annual number of newly documented ballast water ANS, since the first year of the previous VGP (2008). It should be noted that this database does not include all ANS that were introduced by ballast water ; rather, it represents the number of ANS, which were d ocumented

nationwide and attributed to ballast water . In using this database, we expect considerable

ascertainmen t bias, i.e., greater effort is likely to increase the number of ANS detected. The number of documented ANS grossly underestimates the total number of invasions because there are no monitoring programs throughout many of the waters of the U.S., and fundin g cuts are likely to further reduce the number of programs looking for ANS invasions . Still, this provides a qualitative measure of how many ballast water organisms result in ANS invasions. From 2008 to 2011, the annual mean was 5

. 7 5 newly documented bal last water ANS inv asions nationwide (95% CI: 4.5

– 7.0 ).

The numeric standards in the VGP are likely to reduce ballast

- water

- mediated ANS invasion

rates ; t herefore, we expect that the number of documented ANS invasions is likely to be reduced

over the life of the permit. Equivalent standards are not required in the sVGP. Th us there

remains a small likelihood that listed resources would be exposed to ANS invasions as a result of ballast water discharges authorized by the VGPs.

Other Vectors

Several other discharges incidental to the normal operation of a vessel serve as potential vectors
for ANS. These include effluent from chain lockers, seawater cooling systems, and use and disposal of live bait. Less is known about these discharges and their pote ntial to serve as ANS vectors; however, they are generally considered to be significantly less important than hull fouling and ballast water

.110

Chain locker effluent is water that collects in the below

- deck storage area during anchor retrieval. A sump colle cts the liquids and materials that enter the chain locker and discharges it

overboard or into the bilge. Chain locker effluent may contain marine organisms including ANS. The sVGP does not require any actions to minimize ANS transfer in chain locker efflu ent

. To minimize the number of ANS in chain locker effluent, EPA has included the following requirements in the VGP:

 The anchor chain must be carefully and thoroughly washed down (i.e., more than a cursory rinse) as it is being hauled out of the water to remove sediment and marine organisms.

 Chain lockers must be thoroughly cleaned during dry

- docking

The surfaces of seawater cooling systems, especially sea chest intakes and seawater piping , can support the growth of fouling organisms including ANS. I n vessel sea chests, Coutts et al. (2003) found typical fouling organisms, the introduced European clam ( Corbula gibba ), an invasive sea

- star (

Asterias amurensis ), several species of small fish, and three introduced Green

crabs ( Carcinus maenas ), two of wh ich were ovigerous females capable of releasing viable propagules . Coutts and Dodgshun (2007) found that m arine growth protection systems significantly reduce fouling by sessile and sedentary organisms, but have little influence on the

mobil e species withi n sea

- chests. The sVGP does not require any actions to minimize ANS transfer in seawater cooling systems. To minimize the spread of ANS through seawater piping, EPA has included the following requirements in the VGP:

 Vessel owners/operators must remove f ouling organisms from seawater piping on a regular basis and dispose of removed substances in accordance with local, state, and federal regulations (regular basis is not defined)

 Removed fouling organisms shall not be discharged into waters of the U.S.

Fi sh hold effluent also has the potential to introduce ANS into receiving waters from fish waste or water transported from one port to another. To minimize the spread of ANS through fish hold effluent, EPA has included the following requirements in the VGP and the sVGP :

 Minimize the discharge of fish hold water and/or ice while in port and at the pier.

 If fish waste is contained in the fish hold effluent, it may not be discharged while in port unless a physical separation method is used.

 The discharge of f

ish hold effluent (including dirty ice) is prohibited if a shore

- based discharge facility is available.

 The discharge of unused bait overboard is prohibited, unless bait was caught in the same water body or watershed.

The fish hold effluent requireme nts including in the VGPs are stringent, specific, and enforceable. They are likely to minimize the exposure of listed resources to ANS transported in fish hold effluent. The sVGP does not require any actions to minimize ANS transfer in seawater cooling systems or chain locker effluent

, although these vessels’ characteristics are typically different than on larger vessels and should present lesser risk compared to VGP vessels (e.g., there are not typically large chain lockers where sediment and organisms could accumulate).111

Furthermore, the VGP is vague on its requirements for the “regular” removal of organisms from seawater piping. Thus, it is not clear how or to what extent the VGPs will minimize the risk of ANS invasions from seawater cooling systems o r chain lockers. Though these vectors are responsible for fewer ANS invasions than hull fouling and ballast water, they are regarding as ANS “hotspots” and cannot be discounted. Therefore, there is a small likelihood that that l isted

resources will be ex posed to ANS invasions as a result of EPA’s authorization of discharges

fr om seawater cooling systems and chain lockers.

Stressors

Established ANS are stressors that have the potential to jeopardize the future existence of threatened and endangered spe cies through the following mechanisms :

 Predation

 Competition

 Food web alterations

 Alteration of the struc ture or function of ecosystems

 Introgressive hybidization

 T ransfer of disease and parasites

 D estruction or modification of c ritical habitat

The se str essors are the mechanisms by which ANS adversely affect native species ; they are often

multifold and i nterlinked. Here we highlight two examples of the multitude of stressors caused by ANS included in EPA’s Biological Evaluation. Introduction of the gree n crab ( Carcinus

maenus ) has been impli cated in the destruction of soft

- shell clam ( Mya arenaria ) fisheries in

New England (Cohen and Carlton, 1995) and the reduction of populations of other commercially important bivalves including the scallop, Argopecten irradians , and the northern quahog,

Mercenaria mercenaria (Morgan et al. 1980; Walton, unpublished data as cited in Grosholz and Ruiz, 2002). In Connecticut, weekly rates of crab predation on scallops were as high as 70% leading Tettlebach (1986) to obser ve that green crabs were responsible for most observed mortality in scallops and were a limiting factor in population size. MacPhail et al. (1955) concluded that the green crab was "one of the worst, if not the worst, clam predators we know." Their ability to out

- compete native species for food resources, high reproductive capacity, and

wide environmental tolerances enable them to fundamentally alter community structure in coastal ecosystems.

Many ANS are filter feeders which, upon reaching high densities , can deplete phytoplankton that

serve as the diet for zooplankton, juvenile life stages , and planktivorous fish. T he Asian clam ( Potamocorbula amurensis ) invasion of the San Francisco Bay is closely correlated to the shutdown of the spring phytoplankton bloom in the bay, which usually fuels much of the pelagic
ecosystem (i.e., zooplankton and larval fish ) . Most of this primary production is transferred to the benthic food webs, which are dominated by benthic invertebrates and bottom

- fee ding fishes ( Grosholz 2002 )

. The overbite clam ( Corbula amurensis ) spread throughout the waterways surrounding San Francisco Bay within two years of being detected in 1986. The clam accounts112

for up to 95 % of the livin g biomass in some shallow portions of the bay floor. It is believed to be a major contributor to the decline of several pelagic fish species in the Sacramento

- San Joaquin River Delta, including the threatened delta smelt, by reducing the planktonic food ba se of the ecosystem ( Takata et al., 2011 ).

Response Analysis

Here we consider the probable responses of ESA listed species to ANS invasions. We group species together into a generalized discussion because of the large number of species potentially

affec ted ; the mechanisms of impact are similar across very different taxonomic groupings and in both estuarine and freshwater systems . We discuss responses to the following ANS

- related stressors: predation, competition, trophic alteration, ecosystem alteratio n, disease transmission, and habitat modification. We determine whether these responses are likely to reduce an individual’s fitness (i.e., survival and reproducti on ).

Estuarine Systems A large number of estuarine systems have been highly invaded by AN S. For example, in San Francisco Bay , which hosts threatened and endangered fish, tidal marsh birds, mammals and plants, over two hundred ANS have been identified, such as the Chinese mitten crab (Cohen and Carlton, 199 8 ). Additionally, non

- indigenous mic roorganisms have become established in many estuarine waters. The introduction of nonnative pathogens, such as VHS, which negatively impact native organisms through parasite or disease transmission, can be particularly destructive to the estuarine ecosyste m (USEPA, 2008a).

For coastal marine ecosystems, California and western North America have received the most in

depth analyses of aquatic invasions, with over 250 nonindigenous species of invertebrates, algae, and microorganisms having become established in tidal (marine and estuarine) waters of California alone. Of these, only about 10% are attributed solely to ballast water as a vector, but greater than 50% include ballast water as a possible vector among others (NAS, 2011).

There have also been exten sive introductions of nonindigenous mollusks in estuarine ecosystems throughout North America since the early 19th century. Thirty species have become established on the Pacific Coast, eight on the Atlantic Coast and one on the Gulf Coast. Nineteen of the 30 Pacific Coast ANS occur in San Francisco Bay alone (Carlton, 1992). There, the Asian clam has reached high densities at the expense of native biota (Carlton, 1992). The overbite clam ( Corbula

amurensis ) spread throughout the waterways surrounding San Fr ancisco Bay within two years of being detected in 1986. The clam accounts for up to 95 % of the living biomass in some shallow portions of the bay floor. It is believed to be a major contributor to the decline of several pelagic fish species in the Sacrame nto

- San Joaquin River Delta, including the threatened delta smelt, by reducing the planktonic food base of the ecosystem (Takata et al., 2011).

Invertebrate ANS have had severe ecological impacts in many regions of the U.S. The elevated

densities of Asian clams and other introduced invertebrates have become the primary mechanism controlling phytoplankton biomass in portions of the San Francisco Bay. This has impacted113

native zooplankton, shrimp, and fish populations (Cohen and Carlton, 1995). Such breakdown s of established ecosystems can result in alterations of physical processes, such as sedimentation rates and nutrient cycling. The physical environment may experience elevated erosion rates due to burrowing by invertebrate ANS (e.g., isopods, crayfish, and crabs) (Cohen and Carlton, 1995).

There is relatively little research published on ballast water transport of plant species. However, it is known that floating and detached seaweeds and seagrasses may be entrained in ballast water (NRC, 1996). It is wel l established that the consequences of nonindigenous aquatic plants have been extensive. The introduction of ANS can have deleterious effects on native aquatic plants as well as serious implications beyond the aquatic ecosystem level. In the San Francisco Bay estuary, more than 20 nonindigenous plant species have been identified (Cohen and Carlton, 1995). The potential adverse impacts of these species include competitive replacement of native cordgrass; altered habitat for wetland plants and animals; altere d sediment dynamics; and loss of shorebird foraging habitat (USCG, 2012).

Estuarine wetlands have been invaded and adversely affected by animal and plant ANS from ballast water and other sources (USEPA, 2004). For example, the Chinese mitten crab, potenti ally introduced via ballast water discharge, has affected native invertebrates and the ecological structure of estuarine wetland communities in California. It disrupts fishing operations by competing with and preying on native species, damaging native habi tats, and reducing biodiversity (Cohen and Carlton, 1997). The current species composition of U.S. estuarine plants includes many ANS that have become widely established over time. In the waters of Florida alone, 23 nonindigenous aquatic plant species have become established (USCG, 2012).

Freshwater Systems U.S. freshwater ecosystem species have been significantly affected by ANS introductions. For example, ANS have become a significant component of the food web in the Great Lakes with

162 ANS identified b y 2001 (NOAA, 2004). Transoceanic shipping activities are attributed with 55% to 70% of an estimated 56 aquatic ANS invasions recorded in the Great Lakes since 1959 (Bailey et al., 2011). They assembled data on dates of discovery of shipmediated aquatic AN S reported in the Great Lakes after the opening of the modern St. Lawrence Seaway in 1959. Their analysis revealed 34 aquatic ship

- mediated ANS reported from the Great Lakes after that date.

T he rate of aquatic ANS discovery was relatively linear between 1959 and the mid

- 1980s, after which time it began to increase. The peak number of discoveries occurred in 1992 when six ANS were reported, including five parasitic species associated with the Eurasion ruffe; the discovery rate begins to decline rapidly aft er the peak. The authors note that this decline in ANS discovery corresponds with two to six

- year time lags following the inception of ballast water management practices. Since 2000, shipping activities have been responsible for three of eight (37.5%)

aqua tic ANS introductions and no new species have been reported since 2006; this is the first

time there has been a four

- year gap in ship

- mediated aquatic ANS discoveries since 1974

- 1977 (Bailey et al., 2011).

In the Mississippi River, more than 100 ANS have been identified across at least nine taxonomic groups (USGS, 2004). In the lower and middle Columbia River alone, 134 nonindigenous species have been identified (USGS, 2009). North America's rivers and stream species are being114

extirpated five times faster than animals living on land and three times faster than marine mammals (American Rivers, 2005). This is due in great measure to the threat posed by ANS to such fauna and the ease with which they spread in freshwater ecosystems (USCG, 2012).

Perhaps the be st

- known example of freshwater invasion is the zebra mussel in the Great Lakes and Mississippi River. This mollusk attaches itself to surfaces in such high densities that it can clog pipes and foul other important structures, such as boat hulls or buoy bas es. Zebra mussels also have the capacity to crowd out native mollusk species or interfere with such basic functions as respiration, reproduction, feeding, growth, and movement. Zebra mussels are filter feeders and can remove algae from the water column tha t other native species depend on as a food source and, therefore, zebra mussels outcompete native (and sometimes endangered) mollusks and other

filter feeders.

Native mollusk communities have been affected by ANS

– one estimate is that another 127

freshwa ter mussel species will become extinct in the next 100 years if no conservation efforts are initiated (Ricciardi and Rasmussen, 199 8 ; Williams and Neves, 2003). The Eurasian zebra mussel and the Asiatic clam, two alien nonunionoid species, have caused sign ificant harm to North American unionoids (Lydeard et al., 2004). By attaching to native mussels such as the northern riffleshell in great numbers, zebra mussels make it difficult for the mussel to move and feed properly, thereby suffocating and killing the native species (USFWS, 1997). Studies of zebra mussels on unionids in Great Lakes waterways have confirmed that unionid mortality may approach 100% when unionids are heavily encrusted with zebra mussels (Schloesser et al., 1998).

Other non

- native species may also impact unionid survival through the reduction or redistribution of native fishes, of which the larval (glochidia) life

- stage is parasitic. Nonnative fish species such as the Eurasian ruffe ( Gymnocephalus cernuus ) and round goby ( Neogobius

melanos tomus ) can completely displace native fish, thus causing the functional extirpation of local unionid populations (USEPA, 2007a). Glochidia of freshwater mussels generally display varying degrees of host specificity. Closely related mollusk s have been shown to use banded sculpin, as well as dusky, redline, and spotted darters (Yeager, 1986). Oth er possible hosts include: banded sculpin, greenside darter, logperch, redline darte r, snubnose darter, and spotted darter (Yeager and Saylor, 1995).

In 2005, a fres hwater strain of VHS was discovered in freshwater drum from Lake Ontario, and subsequently it was found in numerous freshwater species throughout much of the Great Lakes. It has also been found in preserved samples from as far back as 2003. Since 1988 the virus, a finfish pathogen, was only known to exist in marine fish off both coasts (USDA, 2006). Genetic studies have determined that the strain in the Great Lakes is most closely related to the North Atlantic strain (Gagné et al., 2007). Ballast water is a plausible vector; however, there is no way to definitivelydetermine how this pathogen arrived in the Great Lakes. (USCG, 2012).

Eurasian watermilfoil ( Myriophyllum spicatum ) is a stringy and submerged plant that is highly invasive and aggressively compet es with native plant communities, reducing biodiversity. Dense mats of watermilfoil have less value as a food source for waterfowl than the native plants it115

replaces (Aiken et al., 1979). Although fish may initially experience a favorable edge effect,

ove rabundant growth of watermilfoil negates any short

- term benefits that it may provide fish in healthy waters, because its high densities cause a lower abundance and diversity of invertebrates that serve as fish food (Keast, 1984). The growth and aging of th e thick watermilfoil vegetation also degrades water quality and depletes dissolved oxygen levels (Engel, 1995; Honnell et al., 1992).

The common reed ( Phragmites australis ) is is another vigorous plant competitor. It can grow up to more than four meters t all and form dense monospecific stands. Common reed is native to the United States, but more invasive European strains may have been unintentionally introduced in ships’ ballast (Saltonstall, 2008). Involuntary transport of Phragmites seeds and rhizome

fra gments by commercial and recreational vessels can promote the spread of this weed. Other aquatic nuisance species that pose a similar threat include the purple loosestrife ( Lythrum

salicaria ) and the yellow iris ( Iris pseudacorus ). Both taxa can out

- compe te native plants and spread through transport of seeds and propagules by vessels.

Once established in a new environment, fish can spread over broad geographic areas. A classic example is the Eurasian ruffe ( Gymnocephalus cernuus ), which was introduced via ballast water

to the St. Lawrence River in the mid

- 1980s. Since its introduction, it has spread rapidly through rivers, bays, and lakes in the Great Lakes area. Furthermore, the ecological and geographical expansion of the ruffe has injured native fish po pulations (OTA, 1993). Other nonindigenous fish, such as the round goby ( Neogobius melanostomus ), the common carp ( Cyprinus carpio ), the alewife ( Alosa pseudoharengus ), the white perch ( Morone americana ), and the sea lamprey ( Petromyzon marinus ) have sprea d rapidly and caused major environmental and economic problems (USCG, 2012).

Competition and predation by introduced non

- native species may have been factors that contributed to the decline of the Rio Grande silvery minnow within its historic range (USFWS

, 2007), and their survival continues to be threatened by interactions with non

- native fishes (NatureServe, assessed April 2008). The intentional or accidental introductions and transfers of indigenous and non

- indigenous minnows, e.g., live minnows fro m ot her drainages, may threaten wild Rio Grande silvery minnow populations by imposing genetic threats, increasing competition for food or habitat, or spreading diseases. It is also possible that rapid increases in abundance of

other non

- indigenous species (e. g., guppy Poecilia reticulata , goldfish Carassius auratus ) may affect Rio Grande silvery minnow food sources (e.g., diato ms, algae) and/or introduce new predators to compete for resources of Rio Grande silvery minnow.

Mechanisms of Impact

ANS threaten the diversity or abundance of native species and the ecological stability of the aquatic ecosystems they infest. They can permanently reduce biodiversity by preying on, parasitizing, out

- competing, causing or carrying diseases, or altering habitats of native species (Convention on Biological Diversity, 2005). Marine ANS can change food webs and disrupt ecosystem services provided by marine wetland plants (salt marshes, sea grasses). Many of these impacts were noted above in the examples of ANS invasions. This section describes specific mechanisms by which ANS impact native species.116

An introduced species might become invasive if it can outcompete native species for resources, such as nutrients, light, physical space or food. If the introduced species evolved un der great competition or predation, the new environment may host fewer able competitors, allowing the invader to proliferate quickly. For example, zebra mussels are capable of reaching such high densities that they crowd out or encrust native mollusk speci es; furthermore, their filtration rates are so high that they outcompete native filter feeders for available phytoplankton.As an additional example, a variety of coral species have been introduced into United States waters via ballast water discharge and o ther sources. Nonindigenous coral species can harm native coral species by colonizing the native species’ habitat. This is a competition between invasive and native species over limited, overlapping resource needs, with the invaders ultimately replacing

na tive species within the ecosystem.

Introduction of nonnative pathogens, such as viral hemorrhagic septicemia (VHS), can negatively impact native organisms through parasite or disease transmission. VHS is caused by

the Viral hemorrhagic septicemia virus , a finfish pathogen. It afflicts over 50 species of freshwater and marine fish in several parts of the northern hemisphere (Disease Factsheets: Viral Hemorrhagic Septicemia. Iowa State University, The Center for Food Security & Public Health. (http://www.cfs ph.iastate.edu/Factsheets/pdfs/viral_hemorrhagic_septicemia.pdf, accessed June 15, 2012) ) . In 2005, a freshwater strain of VHS was discovered in freshwater drum from Lake Ontario, and subsequently it was found in numerous freshwater species throughout much of the Great Lakes. It has also been found in preserved samples from as far back as 2003. Since 2005,

massive die

- offs have occurred amongst a wide variety of freshwater species in the Great Lakes region. As another example, sturgeon species appear to be susceptible to viruses enzootic to the west coast of the U.S., and fish introductions could further spread these diseases ( NatureServe, accessed April 2008 ).

HAB can produce toxic compounds, including brevetoxin, saxitoxin and microcystins. Toxins

can b ioaccumulate in high trophic level marine animals, which can accumulate relatively large amounts of the toxin and show symptoms of contamination (Bushaw

- Newton and Sellner, 1999). The adverse effects of HAB on marine mammals can range from cell and tissue damage to organism mortality. Immune system responses have been affected by brevetoxin exposure in the endangered Loggerhead sea turtle.

Additional marine mammal species, like the endangered North Atlantic Right Whale, have been exposed to neurotoxins by preying on highly contaminated zooplankton (Durbin et al. 2002). The summertime habitat of the North Atlantic Right Whale overlaps with seasonal blooms of the toxic dinoflagellate Alexandrium fundyense . Foraging right whales will ingest large

concentratio ns of contaminated copepods, resulting in affects on respiratory capabilities, feeding behavior, and ultimately the reproductive condition of the population (Durbin et al. 2002).

Many of the negative affects of ANS are related to changes in community stru cture. Species invasion causes a breakdown in structure and rapid reorganization (Sanders et al. 2003). ANS

can exert bottom

- up or top

- down controls. Many ANS are filter feeders which, upon reaching high densities, can deplete phytoplankton that serve as the diet for many native species (native117

zooplankton, shrimp, and fish populations), including their juvenile life stages. These effects may continue through the food web to fish, for example reducing the biomass of planktivorous

fish.

Invasive species m ay be an inferior food. An example is the invasive diatom Melosira, which at certain times in the year can be the most abundant species of phytoplankton. This diatom grows in long chains and is very difficult for zooplankton to graze on; thus the change in composition and abundance of zooplankton may also be tied to the increased importance of this diatom.

B ythotrephes longimanus , the spiny water flea, is another invasive species that may be an inferior food for planktivores in the Great Lakes.

Invasive s pecies may be highly effective predators capable of reducing the abundance of various life history stages of native species. For example, the endangered Columbia spotted frog is particularly susceptible to displacement or predation by introduced species. F or example, various studies have documented the vulnerability of Columbia spotted frogs to nonnative salmonid and Centrarchid (e.g., bass) species (Bull and Marx, 2002; Pilliod and Peterson, 2001; Werner et al., 1998). Other non

- native fishes thought to be potentially important predators of Columbia spotted frogs include char and goldfish ( Carrasius auratus ) (Amphibiaweb.org website, accessed April 17, 2008). Invasive crayfish and American bullfrogs ( R

. catesbeiana ) might also be aggressive predators of var ious life history stages of spotted frogs, including eggs and tadpoles (Reaser, 1997).

The effects of introduced species on the listed California Freshwater Shrimp are mainly associated with predation. The shrimp is prey for native fish species at all lif e stages. The riparian habitat protects the shrimp from many native species, as do the intermittent pools that the shrimp also inhabit. Introduced species are a threat to the populations of S. pacifica particularly in areas where native fish species are no t abundant. These pools sometimes are of lesser water quality which protects the shrimp from many native species. However, the nonnative fish species, green sunfish ( Lepomis cyanellus ), is capable of surviving at extreme conditions, including high temperat ures, low oxygen, and high alkalinities (USFWS, 1998).

Invasive species can affect water quality (negatively or positively) in marine, estuarine, and riverine freshwater environments by altering processes such as sedimentation rates and nutrient cycling. Introduced non

- native algal species from ballast water (as well as other sources) combined with nutrient overloading may increase the intensity and frequency of algal blooms. An overabundance of algae can degrade water quality upon bacterial decomposition , which depletes oxygen levels in an ecosystem. Oxygen depletion can result in “dead zones,” murky water, seagrass and coral habitat degradation, and large

- scale fish kills (Deegan and Buchsbaum, 2005).

Breakdowns of established ecosystems can result in a lterations of physical habitat. The physical environment may experience elevated erosion rates due to burrowing by invertebrate ANS. ANS can also alter the environment to favor introductions of additional nonnative species. Simberloff and Von Holle (1999 ) referred to this positive feedback loop as “invasional meltdown.” A recent series of invasions by euryhaline organisms from the Black and Caspian seas might be the start118

of an invasional meltdown in the North American Great Lakes (Rahel, 2002). It seems likely

that zebra mussels have altered the benthic environment of the Great Lakes so as to facilitate invasions by additional exotic species. Zebra mussels have also increased the habitat complexity on lake floors, providing crevices in which invertebrate s live. This increase in complexity, together with the nutrition provided by the waste products of mussel filter

- feeding, increases the density and diversity of benthic invertebrate communities.

Documented impacts on Listed Species Some endangered species face threat from the combined impact of ANS introduction and the existing environmental circumstances (USCG, 2012). For example, almost 40 native mussel species occur in the Mississippi River, some of which are federally listed as threatened or endangered (USFWS, 2003). The zebra mussel threatens some of these indigenous species of mussel with extinction (USCG, 2012).

ANS have been identified as a contributing factor in the listing as threatened or endangered of more than 50% of fish species and 33% of in vertebrates, which includes mollusks and crustaceans (USCG, 2012). Shortnose sturgeon ( Acipenser brevirostrum ) are endangered and under many threats, amongst them habitat degradation and dredging operations. It is also anticipated that rapid increases in abundance of other non

- indigenous species (e.g., Asian clams, zebra mussels, blue and flathead catfish) in some rivers will affect sturgeon prey and/or introduce new predators to compete for resources of shortnose sturgeon ( NMFS and USFWS,

1998 ).

Over 14 5 nonnative species have become established in the North American Great Lakes (Mills et al., 1993). Especially noteworthy is that since 1985, 70% of the invading species are native to

fresh and brackish waters of the Ponto

- Caspian region (Black, Caspian, a nd Azov seas) (Ricciardi and Maclsaac, 2000). Some of these species have achieved high abundance and now play a major role in Great Lakes food webs. Examples include ruffe Gymnocephalus cemuus

, round goby Neogobius melanostomus , tubenose goby Proterorhinus marmoratus , zebra mussel, quagga mussel Dreissena bugensis , and the amphipod Echinogammarus ischnus . Most of the invasions resulted from ship ballast water release (Rahel, 2002).

Freshwater mussels in the families Margaritiferidae and Unionidae are world wide in distribution but reach their greatest diversity in North America with 281 species and 16 subspecies (Williams et al., 1993). They are the most imperiled freshwater fauna with 12% of the taxa listed as probably extinct and 60% considered endangered, threatened, or of special concern (Ricciardi et al., 1998). During the twentieth century, the most important source of imperilment was destruction of habitat by damming, dredging, and channelization of rivers, especially in the

southeastern United States (Rahel, 2002).

In the 1990s, a significant new threat was added with the establishment of the zebra mussel that smothered the shells of other mollusks and competed with them for food (Nalepa et al., 1996). The biological impacts of zebra mussels have the potential to harm native mussels in North America by interfering with their feeding, growth, movement, respiration, and reproduction. This species has rapidly spread throughout the Great Lakes and the Mississippi River basin, often119

reaching densities in ex cess of 3,000 individuals per square meter and extirpating native mussel species within 4 to 8 years. Ricciardi et al. (1998) projected that if the current rate (as of 1998) of spread continues, the zebra mussel will accelerate the regional extinction rate s of North American freshwater mussels by ten

- fold and will threaten the existence of over 60 endemic species in the Mississippi River basin.

Researchers are observing some of these effects as they s tudy interactions between zebra mussels

and native musse ls in the Great Lakes. In one study, biologists found that where zebra mussel densities were highest, in Lake St. Clair and in the western basin of Lake Erie, native mussels had declined after only two years of zebra mussel colonization (Bensen, 2012) and other studies have shown an inverse correlation between zebra mussel biomass and the density of native

mussels.

Zebra mussels are also believed to negatively impact native fish populations. Among benthic

feeding fish, lake sturgeon ( Acipenser fulvescens ) are of particular concern. Lake sturgeon are threatened or endangered throughout much of their range. This species is native to lakes and large rivers in the Atlantic watershed of North America including the Hudson Bay, Laurentian,

and Gulf of Mexico catch ments (Lee et al., 1980). Through much of this range, lake sturgeon populations have been reduced from viable populations to threatened or endangered status owing to overfishing and habitat destruction (Auer, 1999). Zebra mussels now co

- occur with lake

stu rgeon over much of their range, including the Laurentian Great Lakes and portions of the Mississippi and Hudson Bay catchments, and may represent a novel threat to lake sturgeon. Juvenile sturgeon use sandy and silty habitats extensively during their grow th. Invasive zebra mussels change the nature of these sandy and silty habitats because they settle on and coat the habitat with the shells of living and dead individuals. McCabe et al. (2006) assessed juvenile lake sturgeon habitat choice in laboratory exp eriments, and zebra mussel impact on the foraging success of juvenile lake sturgeon on three different prey species was measured. Sturgeon avoided

the zebra

- mussel covered habitat more than 90% of the time. T his combination of zebra mussel

avoidance and re duced foraging in the presence of zebra mussels was suggested to be detrimental to sturgeon restocking programs utilizing smaller sturgeon in zebra

- mussel

- infested waterways.

Existing ANS are a persistent problem in U.S. coastal and inland waters . In coa stal environments, commercial shipping is the most important me ans of introducing new ANS, and unmanaged ballast water discharge and biofouling are the vectors responsible for the introduction of the majority of ANS in the U.S. ANS pose several dan gers to aquatic ecosystems, including outcompeting native species, damaging habitat, chang ing food webs, and altering the chemical and physical aquatic environment. Numerous studies have concluded that the reduced discharge of viable organisms capable of establish ing a viable pop ulation of the organism in U.S. waters reduces the risk of invasions. While it is presently not possible to calculate the risk of ANS invasion associated with specific ANS concentrations in ballast water discharges, EPA

believes that the tw o permits (VGP/sVGP) will reduce the p ropagule pressure substantially associated with vessel discharges, which will significant ly reduce the risk that new ANS introductions pose to listed species.12 0

The individuals and populations of the aquatic species lis ted in Table 1 are vulnerable to the impacts of ANS through predation, competition, trophic alteration, ecosystem alteration, disease transmission, and habitat modification. The aquatic

- dependent species are vulnerable to ecosystem and habitat alteration especially as it affects the prey base of piscivorous birds and

mammals.

Extinction and Endangerment as a Result of ANS Invasions

In our Exposure Analysis , we concluded that threatened and endangered species and their designated critical habitat were lik ely to be exposed to ANS in the following discharges: ballast water, hull fouling/underwater husbandry, sea cooling systems, and chain lockers. In our Response Analysis , we concluded that listed individuals exposed to ANS invasions are likely to experienc e reduced fitness as a result. Here we ask whether these reductions in fitness are likely to reduce the viability of populations and species. We start by reviewing the literature species endangerment and extinction as a result of ANS invasions

.

The int roduction of non

- native species poses one of the greatest threats to biodiversit y , second only to habitat loss ( Wilcove et al. 1998 )

. In the United States, more than 40 % of species listed

under the ESA are threatened by invasive species ( Wilcove et al. 1998 )

. The ANS Task Force identifies ANS as a major cause of decline of species and a significant impediment to their recovery ( ANS Task Force website). The detrimental effects of ANS have contributed to 68% of North American fish extinctions over the past century, including two Oncorhynchus species ( Miller et al. 1989 )

. A study by USGS (2012) identified ANS as a contributing factor in the listing of more than 50% of fish species and 33% of invertebrate spec ies listed under the ESA. Some argue whether invasive species are the primary cause of endangerment or extinction, but it is widely agreed that listed species become further imperiled as a result of ANS invasions ( Clavero & Garcia

- Berthou 2005 ; Gurevitch & Padilla 2004 )

.

While there are many examples of fresh water species extinctions as a result of ANS , marine equivalents are less prevalent in the literature ; however this may be a result of underreporting and low detection power ( Roberts & Hawkins 1999 )

. As terrestrial animals, huma ns are less likely to notice declines and extinctions in the marine environment; furthermore, m any marine species have yet to be described, and their extinction would go unnoticed . Though w e were unable to find any examples of marine extinctions caused ex clusively by ANS, there are several examples where ANS invasions led to the decline of native species. For example, e gg predation by an introduced starfish ( Asterias amurensis ) led to the decline of the critically endangered spotted handfish ( Brachionicht hys hirsutus ) in Australia. In California, the introduced Japanese mud snail (Batillaria attramen taria) outcompetes the native snail ( Cerithidea californica ) and is predicted to eventually replace the native species (Byers 2000). Molecular analyses of mus eum specimens suggest tha t alien mussels ( Mytilus galloprovincialis ) displaced the native mussel ( M.

trossulus ) in southern California, some time in the last century (Gelle r 1999 )

.

We present statistics on ANS

- related extinctions and endangerments to il lustrate that ANS

invasion s have reduce d the viability of numerous populations and species and are likely to do so

in the future. A s described above, ANS invasion s affect species by predation, competition for121

habitat or prey, reduction of the prey base, h abitat alteration, disease transmission, and ecosystem restructuring. These types of impacts rarely affect on e or a few individuals; they are more likely to affect many individuals or an entire population. For example, we described

several diseases that ANS are likely to transmit to listed fish, abalone, corals, and seagrass. These infectious diseases would first affect exposed individuals, but they would quickly spread through these small immunologically naïve populations, which often exhibit low geneti c diversity a reduced ability to mount an effective immune response. Ultimately, such ANS

transmitted diseases would reduce the viability of the population, and the loss of populations would reduce the viability of species. Similarly, we described above h ow ANS are likely to

reduce the survival of salmonids and Pacific eulachon through competition, predation, disease transmission, habitat loss, and ecosystem restructuring. Again, these mechanisms are likely to affect many individuals, reducing the viabili ty of populations, and thus the species (or listed DPS). A significant loss in the abundance of salmonids and Pacific eulachon is likely to reduce the fitness of many Cook Inlet beluga whales and southern resident killer whales that depend on these specie s as their primary prey. These DPSs have already experienced severe population declines, in part as a result of reduction in their prey base. Additional reductions would reduce the viability of these species. In conclusion, ANS invasions, which are lik ely to occur as a result of the discharges authorized by EPA, are likely to result in reduced population and species viability of listed fish, marine mammal, invertebrate, and plant species.

Critical Habitat

Invasive species are likely to adversely affec t water quality in marine, estuarine, and riverine freshwater environments by altering processes such as sedimentation rates and nutrient cycling.

Introduced non

- native algal species from ballast water (as well as other sources) combined with

nutrient over loading may increase the intensity and frequency of algal blooms. An overabundance of algae can degrade water quality upon bacterial decomposition, which depletes oxygen levels in an ecosystem. Oxygen depletion can result in “dead zones,” murky

water, sea grass and coral habitat degradation, and large

- scale fish kills ( Deegan and Buchsbaum, 2005, BE ). Therefore, successful ANS invasions are likely to adversely affect the critic al habitat

of lis ted species, especially when ANS threaten the prey that has bee n designated as a prim ary constituent element, i.e., physical or biological features that are essential to the co nservation of a given species, including : space for individual and population growth and for normal behavior; food, water, air, light, mineral s, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecolo gical distri bution of a species ( 50 CFR 424.12(b) ).

For the species listed in Table 1 with designated critical habitat, the primary constituent

elements , or the physical and biological features essential to species conservation, include many habitat characteristics

. These includ e elements or features such as areas for breeding, feeding, and sheltering, sufficient prey to support normal individual and population growth, physical structure of habitat such as substrate characteristics for egg laying, and presence of sp ecific plant species.122

As described above, ANS invasions are likely to reduce the availability of prey and thus adversely affect some critical habitat s

. In addition, invasive plant species are likely to adversely affect the critical habitat of endangered species by altering the physical structure and species composition of critical habitat

. Two introduced plants, purple loosestrife ( Lythrum salicaria ) and Eurasian water milfoil ( Myriophyllum spicatum ), have displaced native wetlands vegetation in many pa rts of the United States . The rapidly decomposing purple loosestrife produces a seasonal shift in local nutrient a vailability. Eurasia n water milfoil forms dense mats of vegetation that can depress dissolved oxygen concentrations ( Cronin et al. 2006 ; Unmuth et al.

2000 )

. These invasive plants, which were likely introduced via shipping , are likely to change the

structure and function of the ecosystem ( Sanderson et al. 2009 )

.

In conclusion, there is a likelihood that listed resources will be exposed to ANS as a result of discharges authorized by EPA’ s VGPs. If exposed, individuals are likely to experience

reductions in fitness. If the invasion is sufficiently large in extent and magnitude , population viability and species conservation status is likely to be diminished. In addition, exposure to ANS

i s likely to adversely affect designated critical habitat.

Traditional Pollutants

Exposure Analysis

The constituents of the discharges authorized by the proposed VGPs are mixtures of pollutants capable of producing adverse effects to endangered or thre atened species and their critical

habitat. This section first reviews the vessel discharge s authorized by the VGPs in terms of discharge volumes and constituent mixtures then summarizes pollutant loads and EPA’s modeled

estimates of final harbor concentra tions. Pollutant load, expressed in terms of mass per day, is the net amount of pollutant discharged based on discharge volume and pollutant concentration. Many pollutants are found in more than one discharge source, with some sources being more signific ant pollutant load contributors than others by virtue of their greater volume or constituent

concentrations.

The vessels discharge information used by EPA in its BE were taken from the Report to Congress and other sources such as the Uniform National Dis charge Standards for Vessels of the Armed Services Technical Development document ( USDOD/USEPA 1999 ) and several reports generated by EPA in support of the VGPs ( USEPA 2008

, 2011b

, a ) . The BE relied heavily on discharge volume and constituents data in the Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vess els and Other Non

-- Recreational

Vessels Less than 79 Feet ( EPA 2010 ) . It is important to note this data represents opportunistic sampling from a total of 61 vessels intended to represent a population of the greater than 90,000123

n on

- recreational small vessels 10 tracked in the MISLE database. N ot all discharge types were sampled each vessel . T he same constituents were not analyzed for in all discharges due to sample volume constraints or decisions made regarding whether or not the discharge would contain a given analyte or analyte group (e.g. nonylphenols in engine exhaust). I n a few cases, target analytes differed for the same discharge type within vessel classes , for example, additional analytes were included for samples when an unexpected analyte source was observed

. These data properties limit systematic characterization of discharges within and among vessel service

types. Taken with the very limited number of vessels examined , inferences made based on these data regarding dis charges from other vessels, particularly the larger vessels covered by the VGP

, are accompanied by high levels of uncertainty. After describing exposure data used in the BE we provide a summary of the uncertainties acknowledged by EPA for estimates made w ithin this vessel population and for extrapolating to larger vessels authorized to discharge under the VGPs.

This Exposure Analysis section is followed by the Response Analysis which describes the potential effects of discharge constituents and the conseq uences of exposing our species to those

constituents.

Discharges Authorized by the VGP and sVGP

EPA identified 27 specific effluent streams as discharges eligible for coverage under the VGP while the sVGP authorizes discharges or discharge creating activi ties conducted in the normal operation of vessels. The VGP and sVGP authorized discharges are cross walked in Table 6

. Several of discharges authorized by the VGP, such as sonar dome and elevator pit effluent, are specific to la rger vessels and are therefore not included in the sVGP. Many sVGP discharge

activities are either identical to VGP

- authorized discharges ( e.g., ballast water) or are broader discharge classifications. For example, the “Engine and Oil Control” discharge activity covered by the sVGP conceptually includes the “Bilgewater/Oily Water Separator Effluent” and “Controllable Pitch Propeller and Thruster Hydraulic Fluid and Other Oil

- to

- Sea Interfaces...” discharg es authorized under the VGP.

Table 6

. Discharge classes authorized under the Vessels General Permit and smal l vessels general permit

. VGP Authorized Discharge sVGP Authorized Discharge

Anti

- Fouling Hull Coatings/Hull Coating Leachate

Vessel Hull Maintenance Underwater Ship H usbandry Discharges

Cathodic Protection

Ballast Water Ballast Water
Bilgewater/Oily Water Separator Effluent Engine and Oil Control Boat Engine Wet Exhaust

10 Small recreational vessels far outnumber small non

- recreational vessels, but are covered under the Clean Boating Act and are

not subject to the sVGP.124

Controllable Pitch Propeller and Thruster Hydraulic Fluid and Other Oil

- to

- Sea Interfaces Including Lubrication Discharges from Paddle Wheel Propulsion, Stern Tubes, Thruster Bearings, Stabilizers, Rudder Bearings, Azimuth Thrusters, Propulsion Pod Lubrication, and Wire Rope and Mechanical Equipment Subject to Immersion.

Moto r Gasoline and Compensating Discharge Fuel Management

Fish Hold Effluent Fish Hold Effluent

Boiler/Economizer Blowdown

These discharges are not typically associated with sVGP eligible vessels Welldeck Discharges
Refrigeration and Air Condensate Discharge
Exhaust Gas Scrubber Washwater Discharge
Freshwater Layup

Gas Turbine Washwater

Non

- Oily Machinery Wastewater
Seawater Piping Biofouling Prevention
Seawater Cooling Overboard Discharge
Sonar Dome Discharge
Aqueous Film Forming Foam ( AFFF)

Elevator Pit Effluent
Graywater Mixed with Sewage

Distillation and Reverse Osmosis Brine
Firemain Systems
Graywater Graywater

Not an explicit category in the VGP Solid and Liquid Waste Management

Deck Washdown and Ru noff and Above Water Line Hull Cleaning Deck Washdown and Runoff and Above Water Line Hull Cleaning

The decision process EPA followed in its selection of which discharges to analyze for risk in the

BE was based on the relative number of vessels relea sing the discharge, the volume of the discharge, and the potential risk posed by the concentration and constituents of that discharge. The following sections briefly describe s each discharge selected for evaluation in the BE. This is

followed with a tabl e summarizing those discharges not evaluated in the BE and EPAs decision process for each

.

Anti

- Fouling Leachate from Anti

- Fouling Hull Coatings. Anti

- fouling coatings are applied to the vessel hull and seawater piping systems to limit attachment of aqu atic species. Virtually all vessels that are permanently kept in saltwater use anti

- fouling coatings. Biocides such as copper

contained in anti

- fouling coatings continuously leach into surrounding waters. EPA analyzed the risk of this discharge in its BE due to the high number of vessels discharging, the large volume and frequency of discharges, along with the potentially high risk posed by the concentration and125

types of pollutant discharged. In its supplement to the BE, EPA estimate s pollutant loadings

f rom antifouling coatings ( Table 7 ).

Table 7 . C opper loading AFC of various vessel service classes

Vessel Type Average

Vessel Length (ft) Estimated

Vessel Draft (ft) Wetted

Hull

Area (ft 2 ) Averag e

Copper Leaching

Rate (μg/cm 2 /day) j Estimated

CopperLeaching

Rate (lbs/day/vessel)

Barges 175a 10d 3,500 10.5 0.075n

Oil and Gas Tankers 797b 75e

120,257 10.5 2.6

Large Commercial Fishing

Vessels 250a 17f 8,500 10.5 0.18

Large Cruise Ships 995c 28g 55,706 10.5 1.2

Large Ferries 200a 15.5h 6,200 10.5 0.13

Medium Cruise Ships 325a 15.5h 10,075 10.5 0.22

Bulk Cargo and Other Carriers 663 b 38i 50,355 10.5 1.1

Small Commercial Fishing

Vessels 33k 4l 264 10.5 0.0057

Passenger Vessels (tour boats, water taxis, etc.) 45k 4m 360 10.5 0.0077

Utility Vessels (tug boats, off

shore vessels, etc. ) 50k 4m 400 10.5 0.0086

a) Average length estimated from Figure 1.3 of USEPA’s Report to Congress (USEPA, 2010 ). b) Average length for oil tankers and bulk cargo carriers from Chamber of Shipping of America, MSD Survey, 2010. c) Averag e cruise ship length calculated from the following cruise ships: Carnival Freedom, Disy Magic, Golden Princess

and Freedom of the Sea. d) Estimated draft for barges based on Barge Number 4727, Ingram, Nashville, TN. e) Estimated draft for oil and gas tan kers based on a Suezmax tanker, http://people.hofstra.edu/geotrans/eng/ch5en/appl5en/tankers.html f) Estimated draft for large commercial fishing boats based on trawlers, http://maritimesales.com/fishing%20vessels.htm g) Estimated draft for large cruise ships based on Royal Caribbean Freedom of the Seas. h) Estimated draft for large ferries and medium cruise ships based on Washington State Department of Transportation’s M/V Sealth, passenger/auto ferry. i) Estimated draft for bulk cargo vessels based on Golden Pegasus Navigation S.A High Glow vessel. j) Average copper leaching rate from USEPA Underwater Ship Husbandry Discharges, (USEPA, 2011 b ). k) Average length estimated from Figure 1.5 of USEPA’s Report to Congress (USEPA, 2010 ). l) Estimated draf

t for small commercial fishing boats 30 to 40 feet in length, http://pacificboatbrokers.com/fishing/licvess.asp

. m) Estimated draft for various passenger and utility vessels, http://www.taxi

- boat.com/

, http://commercial.apolloduck.com/

, http://allmandboat s.com/

. n) Per EPA’s Notice of Intent database, very few barges use anti

- fouling coatings. EPA assumes these barges are engaged in coastwise trade of bulk cargo.

Bilgewater. Bilgewater is generated by all vessels and consists of water and other residu e that accumulates in a compartment of the vessel’s hull. The source of bilgewater is typically drainage from interior machinery, engine rooms, and from deck drainage. EPA analyzed the risk of this126

discharge in its BE due to the high number of vessels disc harging, the large volume and frequency of discharges, along with the potentially high risk posed by the concentration and types of pollutant discharged.

The amount of bilgewater generated by a vessel varies based on vessel size, age, and the amount

below

- deck mechanical systems; discharges typically occur several times per week ( Table 8 ). Cruise ship bilgewater volumes are estimated at 25,000 gallons per week ( 3,570 gal/day) ( USEPA 2008 ) . Bilgewater discharges from fishing vessels are estimated to range from a few gallons per day up to 750 gallons/day ( USEPA 2010 ) . Bi lgewater water discharges rates for tour boats are approximately 11 gallons/day ( 0.04 m 3 /day) and for water taxis are approximately 34 gallons/day ( 0.13 m 3 /day). Tow and salvage boats discharge approximately 37 gallons/day ( 0.139 m 3 /day) of bilgewater ( USEPA 2010 ) . To estimate bilgewater flow rates for medium cruise ships, large ferries, barges, cargo/bulk carriers, and oil tankers, EPA compared the vessel
gross tons ( see Table 3

- 1) to large cruise ships and multi plied by the bilgewater generation rate for large cruise ships. The example below shows how daily bilgewater discharge was estimated for cargo/bulk carriers using information for large cruise ships.

Example:

15,939 gross tons ( cargo/bulk carrier)/53,526 gross tons ( large cruise sh ip) x 3,570 g/day = 1,063 g/day

Table 8

. Estimated Bilgewater Discharge Rates used in EPAs BE Analyses.

Vessel Type Estimated Bilgewater Discharge

Rates ( m 3 /day) ( gallons/day)
Barges 0.18 47
Cargo/Bulk Carriers 4.0 1,063
Commercial Fishing 1.4 375
Large Cruise Ships 13.5 3,570
Medium Cruise Ships 2.0 305
Large Ferries 2.0 97

Oil and Gas Tankers 6.3 1,661
Passenger Vessels ( e. g., water taxis, tour boats) 0.08 22

Utility Boats ( tugs and tow boats) 0.14 37

EPA estimated concentrations of bilgewater pollutants based on data for vessels examined in the Report to Congress. A total of eight bilgewater samples wer e collected from seven vessels with a total of 128 analytes detected. The vessels sampled included two fishing vessels, two tow/salvage vessels, a tour boat and two water taxis. Contaminants of concern in bilgewater identified by EPA are listed in Table 9 and include conventional pollutants, nutrients, metals and volatile/semivolatile organic chemicals (sVOCs/VOCs). Table 9 includes additional information127

for these analytes from the Report to Congress, w hich provides details on the detection frequency and distribution of all a nalytes detected in bilge water

.

Table 9

. Estimated Bilgewater Pollutant Concentrations used in EPAs Biological

Evaluation

Pollutant Point

Estimate Used

i n BE Detection

frequency Mean (range) 50 th /75 th /90 th

Percentiles b Nutrients and Conventional Pollutants Ammonia Nitrogen (mg/L) 1.7 4/5 1.7 (nd

- 7.6) 0.24/4/7.6

Total Phosphorous (mg/L) 3 5/5 3 (0.084

- 13) 0.47/7.1/13

Total Residual Chlorine (TRC, μg/L ) 0.077 3/7 0.077 (nd a

- 0.16) nc c /0.13/0.16

Total Suspended Solids ( TSS

, m g/L ) 39 7/7 39 (3.7

- 88) 38/71/88

Biochemical Oxygen Demand ( BOD

, m g/L ) 190 7/7 190 (2

- 770) 14/330/770

Hexane Extractable Oil

and Grease ( HEM

, m g/L ) 9.3 7/7 9.3 (1.1

- 44) 5.2/7/4 4

Silica Gel Treated

Hexane Extractable Oil

and Grease ( SGT

- HEM

,

m g/L ) 4.4 7/7 4.4 (1.1

- 18) 2.4/3.5/18

Metals Aluminum ( total

, μg/L ) 370 7/7 370 (26

- 940) 330/640/940

Cadmium ( dissolved

, μg/L ) 1.9 1/7 1.9 (nd

- 10) nc/nc/10

Chromium ( dissolved

, μg/L ) 12 5/7 12 (nd

- 56) 1.6/17/56

Copper ( dissolved

, μg/L ) 100 7/7 100 (6.6

- 350) 56/120/350

Nickel ( dissolved

, μg/L ) 9.2 6/7 9.2 (nd

- 15) 8.8/14/15

Zinc ( dissolved

, μg/L ) 130 7/7 130 (53

- 250) 100/190/250 sVOCs and VOCs 2,4,6

- Trichlorophenol ( μg/L ) 7 1/7 7 (nd

- 24) nc/nc/24

Benzene ( μg/L ) 61 4/7 61 (nd

- 410) 0.1/1.3/410

Bis ( 2

- ethylhexyl)

- phthalate ( μg/L ) 15 4/7 15 (nd

- 71) 1.4/21/71

Trichloroethene ( μg/L ) 2.6 1/7 2.6 (nd

- 0.3) nc/nc/0.3

a Nondetect ( censored) concentrations were replaced with 1⁄2 of the reporting limit for calculating average

concentrations.

b Percentiles are the concentrations of each analyte below which at least th at percentage of the values fall.128

So the 75th percentile is the concentration below which at least 75% of the observations were found.

c Distribution statistics were only calculated when analytes were detected at a sufficient frequency.

Deck Washdown. Deck washdown occurs from all vessels as a result of deck cleaning. Constituents in the discharge can include detergent, soap, deck surface components ( e.g., rust, paint chips) and anything dropped, spilled, dripped, or scattered onto the deck surface. De ck washdown volumes vary widely and are highly dependent on a vessel’s purpose, service, and practices. For example, since aesthetics are important to the industry, deck washdowns may be performed more frequently on cruise ships than other types of vessels . EPA analyzed the risk of this discharge in its BE due to the high number of vessels discharging, the large volume and frequency of discharges, along with the potentially high risk posed by the concentration and types of pollutant discharged.

EPA used in formation for commercial fishing vessels, passenger vessels and utility boats to

estimate deck washdown volumes ( USEPA 2010 ) f or barges, cargo/bulk carriers, and oil and gas

tankers ( Table 1 0 ). EPA estimated the deck washdown volumes by comparing vessel gross tons for these vessels with the gross tons of a typical utility vessel. EPA estimated utility vessels are 80 gross tons based on 50% of the utility vessels being approximately 65 fe et long ( USEPA

2010 ) . For medium and large cruise ships and large ferries, EPA estimated deck washdown volumes by comparing vessel gross tons for these vessels with that of a typical passenger vessel.

EPA estimat ed passenger vessels are 35 gross tons based on 50% of passenger vessels being 45 feet long ( USEPA 2010 ) . The example below shows how EPA used the vessel gross tons and deck washdown discharge volume for passenge r vessels to estimate the deck washdown flow for large ferries.

Example:

1,451 gross tons ( large ferry)/35 gross tons ( passenger vessel) x 27 g/day = 1,083 g/day

Table 1 0

. Estimated Deck Washdown Discharge Rates used in EPAs BE Analysis

.
Vessel Type Estimated Deck Washdown Discharge Rate

m 3 /day gallons/day

Barges 0.88 232

Cargo/Bulk Carriers 19.9 5,259

Commercial Fishing ( average shrimper, trawler and troller) 0.39 103

Large Cruise Sh ips 152.9 40,396

Medium Cruise Ships 13.1 3,461

Large Ferries 4.1 1,083

Oil and Gas Tankers 31.1 8,216129

Passenger Vessels ( average water taxi, tour boat) 0.10 27

Utility Boats ( average fire boat, supply boat, t ow boat and tug boat) 0.05 14

EPA estimated concentrations of deckwash pollutants based on data for the vessel types examined in the Report to Congress ( Table 11 ). Deck washwater was collected from a total of

32 vessels: 11 fis hing vessels, nine tugboats, six tow/salvage vessels, two tour boats, a water taxi, a fire boat, a supply boat, and a recreational boat . A total of 88 analytes were detected in deckwass samples. Table 11 includes the point estim ates used in EPAs BE plus additional information for these analytes from the Report to Congress, which provides details on the detection frequency and distribution of all analytes detected

.

Table 11

. Estimated Deckwash Pollutant C oncentrations used in EPAs Biological

Evaluation.

Pollutant Point

Estimate

Used in BE Detection

frequency Mean (range) 50 th /75 th /90 th

Percentiles b

Total Phosphorus (mg/L) 1.7 31/31 1.7 (0.06

- 22) 0.79/1.6/2.9

Total Residual Chlorine (mg/L) 0.12 7/31 0. 12 (nd a

- 0.8) nc c /nc/0.37

Total Suspended Solids (TSS, mg/L) 170 32/32 170 (27

- 530) 120/250/470

Biochemical Oxygen Demand (BOD, mg/L) 110 30/32 110 (nd

- 830) 56/92/370

Hexane Extractable Material (HEM, mg/L) 14 ( 130) 26/29 14 (nd

- 130) 2.8/12/39

Silica Ge l Treated HEM (SGT

HEM, mg/L) 7.0 ( 84) 22/29 7 (nd

- 84) 1.7/3.8/13

Aluminum, Total (μg/L) 3400 30/31 3400 (nd

13000) 1900/4700/8300

Cadmium, Dissolved (μg/L) 1.3 2/31 1.3 (nd

- 22) nc/nc/nc

Copper, Dissolved (μg/L) 42 29/31 42 (nd

- 200) 23/59/120

Lead, Dissolved (μg/L) 6 15/31 6 (nd

- 54) nc/4.7/19

Zinc (dissolved, μ g/L) () 260 31/31 260 (16

- 1200) 120/430/620130

Bis (2

- ethylhexyl) phthalate (μg/L) 13 1/2 4.7 (nd

- 6.7) 6.7/6.7/6.7

Bromodichloromethane (μg/L) 4.7 1/2 13 (nd

- 1.2) 1.2/1.2/1.2

Dibromochloromethane (μg/L) 13 1/2 13 (nd

- 0.7) 0.7/0.7/0.7

a Nondetect ( censor ed) concentrations were replaced with 1⁄2 of the reporting limit for calculating average

concentrations.

b Percentiles are the concentrations of each analyte below which at least that percentage of the values fall. So the 75th percentile is the concentratio n below which at least 75% of the observations were found.

c Distribution statistics were only calculated when analytes were detected at a sufficient frequency.

Engine Wet Exhaust Effluent. Engine wet exhaust effluent is generated when gasoline or

diese l engine cooling water is injected into the engine exhaust. The engine cooling water decreases the exhaust temperature, reduces engine noise and reduces exhaust emissions. Engine wet exhaust discharge rates can range from 5 to 10 gallons per minute for ele ctrical generators to more than 100 gallons per minute on larger diesel engines operating at high inputs. Most passenger vessels, a large number of fishing vessels, and utility vessels use engines that generate wet engine exhaust. Large commercial vessels occasionally operate small auxiliary craft that discharge engine wet exhaust ( e.g., life boats on cruise ships); however, discharge volumes for these vessels are negligible. EPA analyzed the risk of this discharge in its BE due to the high

number of vessel s discharging, the large volume and frequency of discharges, along with the potentially high risk posed by the concentration and types of pollutant discharged.

Large engines, like those found on VGP eligible vessels ( e.g., large ferries, medium and large cruise ships, tankers and cargo/bulk container ships) use dry engine exhaust systems and therefore do not generate engine wet exhaust effluent. Barges do not have engines and therefore do not generate engine wet exhaust effluent. Estimated volume of wet engine exhaust from the EPA report to congress were directly applied to EPA’s BE ( EPA 2010 a )

.

Table 12

. Estimated Propulsion and Generator Engine Wet Exhaust Discharge Rates used

in EPAs A nalysis

.
Vessel Type Estimated Propulsion Engine

Wet Exhaust Discharge Rate Estimated

Generator Engine

Wet Exhaust Discharge Rate

m 3 /day gallons/day m 3 /day gallons/day

Commercial Fishing a 15.8 4,161 1.41 372

Passenger Vessels ( e.g., wat er taxis, tour boats) b 41 10,832 6.45 1,704

Utility Boats ( fire boat, tugs) c 36.3 9,590 1.80 475

EPA estimated concentrations of engine wet exhaust pollutants based on data from the Report to131

Congress ( Table 13 ). A total of 90 analytes were detected. EPA collected engine cooling water discharge samples from a variety of vessel classes with different engine types. T wo of the sampled vessels are recreational vessels and are not study vessels. T he se v essels and four of the six sampled tow/salvage vessels ( those with outboard propulsion engines) were manufactured for pleasure. EPA sampled engine effluent from these vessels because all of the sampled engines can be installed on

either recreational or non recreational vessels and are representati ve of engines on study vessels. Contaminants of concern include copper and volatile/semivolatile organic chemicals (sVOCs/VOCs). Table 13 includes additional information for these analyte s from the Report to Congress, which provides details on the detection frequency and distribution of all analytes detected [put RtC data in an appendix?].

Table 13

. Estimate d Engine Wet Exhaust Pollutant Concentrations used in E PAs Biological Evaluation

.

Pollutant Point

Estimate

Used in

BE Detection frequency Mean

(range) 50 th /75 th /90 th

Percentiles b

Copper, Dissolved (μg/L) 16 12/13 16 (nd

- 53) 6.6/23/51
Benzene (μg/L) 12 9/12 12 (nd

- 120) 2.3/5.4/84
Benzo (a)anthracene (μg/L) 3.3 1/12 3.3 (nd

- 18) nc/nc/13
Benzo (a)pyrene (μg/L) 3.2 1/12 3.2 (nd

- 16) nc/nc/11
Benzo (b)fluoranthene (μg/L) 2.8 1/12 2.8 (n d

- 11) nc/nc/7.8

Benzo (k)fluoranthene (μg/L) 3.1 1/12 3.1 (nd

- 15) nc/nc/11

Chrysene (μg/L) 1.7 1/12 3.3 (nd

- 18) nc/nc/12
Indeno (1,2,3

- cd) pyrene (μg/L) 3.3 1/12 2.5 (nd

- 8) nc/nc/5.6

a Nondetect ( censored) concentrations were replaced with 1⁄2 of the re porting limit for calculating average concentrations.

b Percentiles are the concentrations of each analyte below which at least that percentage of the values fall. So the 75th percentile is the concentration below which at least 75% of the

observations wer e found.

c Distribution statistics were only calculated when analytes were detected at a sufficient frequency.

Exhaust Gas Scrubber Washwater Effluent. Exhaust gas scrubber washwater discharge occurs as a result of cleaning the exhaust gas system on ma rine diesel engines. The washwater discharge can be highly acidic, and can also contain traces of oil, polycyclic aromatic hydrocarbons ( PAHs), heavy metals and nitrogen. Washwater volumes of 2.8 million gallons per day are estimated from a 10 MWh engine. While EPA anticipates very low numbers of vessels will potentially be releasing this discharge, the risk of this discharge was analyzed in the BE due to the very large volume and frequency of discharges, along with the potentially high risk posed by the c oncentration and types of pollutant discharged.132

Exhaust gas scrubbers would be used on large vessels such as oil and gas tankers, cargo/bulk carriers, large ferries and medium and large cruise ships burning high

- sulfur bunker oil ( USEPA

2011 c ) . The exhaust gas scrubbers remove sulfur dioxide generated by the vessel engines during

combustion of the bunker oil. Exhaust gas scrubber systems using seawater typically generate 45

m 3 ( 11,900 gallons) of washwater per megawatt

- hour ( MWh) for scrubbing ( MEPC 2008 )

. Closed freshwater exhaust gas scrubber systems have much smaller discharge rates than seawater scrubbers. Freshwater closed loop scrubbers generate 0.1 to 0.3 m 3 /MWh ( 26 to 79 gallons/MWh) of scrubber washwater ( MEPC 2008 ) . To estimate exhaust gas scrubber

washwater flows for vessels like tankers, cargo/bulk carriers, ferries and cruise ships, EPA used information on the engine sizes for each type of vessel. Table 14 shows the range of engine sizes by vessel type and the estimated seawater and freshwater exha ust gas scrubber washwater flow rates based on engine size. The size of the propulsion engines for large cruise ships and large ferries was obtained from EPA’s Technical Development Document for Exhaust Gas Scrubber

Washwater Effluent ( USEPA 2011 c ) . EPA assumed that the power requirements for propulsion engines on large ferries are similar to those for me dium cruise ships. For oil and gas tankers and cargo/bulk carriers, EPA used information for the 80 MW ( 109,000 HP) engine onboard the

Emma Maersk large container ship ( Technology 2011 ) . EPA assumed that for smaller vessels such as tour boats, water taxis, fishing boats and tug boats using low sulfur fuels will be a less expensive compliance alternative than installing and operating exhaust gas scrubbers; therefore, exhaust gas scrubber washwater flows for these vessel types were not estimated.

Table 14 . Estimated Exhaust Gas Scrubber Wash water Discharge Rates used in EPAs Analysis

Vessel Type Average

Propulsion Power (MW) Estimated Saltwater

Exhaust Gas Scrubber Washwater Discharge Rate Estimated Freshwater

Exhaust Gas Scrubber Washwater Discharge Rate

m 3 /hr gallons/hr m 3 /hr gallons/hr

Cargo/Bulk

Carriersa a 80 3,600 951,000 16 4,227

Large Cruise Ships b 45 2,025 535,000 9 2,377

Medium Cruise Ships c 4.8 216 57,000 1 264

Large Ferries c 4.8 216 57,000 1 264

Oil and Gas

Tankers a 80 3,600 951,000 16 4,227

EPA estimated concentrations of exhaust gas scrubber washwater pollutants based on data from

the Zaandam Scrubber Trial ( ( KRYSTALLON 2010

, USEPA 2011 c ) Table 15 ). Data provided in the trial report were point values and did not include details on analytical observations.133

Table 15

. Estimated Exhaust Gas Scr ubber Washwater Pollutant Concentration s use d in EPAs Biological Evaluation.

Pollutant Point

Estimate

used in

BE ( μg/L )

Arsenic ( dissolved) 81

Arsenic ( total) 81

Copper ( dissolved) 15

Nickel ( dissolved) 12

Selenium ( dissolved) 94

Selenium ( total) 10 0

Benzo ( a)

- anthracene 0.262

Benzo ( a)

- pyrene 0.136
Chrysene 0.373

Fish Hold and Fish Hold Cleaning Effluent. All fishing vessels generate some form of fish hold effluent. Fish hold effluent is composed of seawater, ice

- melt, or ice slurry collected inside fish hold tanks. Fish hold effluent contains pollutants which result from seafood catch and other onboard vessel sources. These pollutants can include biological wastes, metals, and nutrients, as well as wastewater resulting from fish hold cleaning activities.

Table 16 shows the volume of water discharged from various commercial fishing vessels during fish holds in operation and during tank cleaning. Fish hold effluent discharge rates can range from as low as 211 gal/day f or a gillnetter to as high as 5,090 gallons per day for a tender vessel while cleaning volumes range from 283 gal/day for purse seiners to 58 gallons per day for

trawlers ( USEPA 2010 b ) . The volume of fish hold ef fluent can vary from less than 100 gallons during off

- loading to tens of thousands of gallons for large fish tenders. EPA analyzed the risk of this discharge in its BE due to the high number of vessels discharging, the large volume and frequency of discha rges, along with the potentially high risk posed by the concentration and

t ypes of pollutant discharged.

Table 16

. Fish Hold Effluent and Cleaning Effluent Discharge Rates (USEPA 2010 b )

.

Commercial Fishing Vessel Type Estimate d Fish

Hold Effluent Discharge Rate Estimated Fish

Hold Cleaning Effluent Discharge

Rate

m 3 /day gal/day m 3 /day gal/day

Gillnetter 0.80 211

Lobster Boat 2.83 748134 Longliner 2.83 748

Purse Seiner 16.3 4,3 06 1.07 283

Shrimper 1.25 330

Tender 19.3 5,099 0.66 174

Trawler 1.25 330 0.22 58

Troller 3.04 803 0.66 174 EPA estimated concentrations of fish hold and fish hold cleaning effluent po llutants based on data for the vessel types examined in the Report to Congress ( Table 17 ). Contaminants identified in fish hold and fish hold cleaning effluent include metals and volatile/semivolatile organic chemicals (sVOCs/VOC s).135

Table 17

. Estimated Fish Hold and Fish Hold Cleaning Effluent Pollutant Concentration s use d in EPAs Biological Evaluation.

Pollutant Fish Hold Effluent Fish Hold Cleaning Effluent

BE Point

Estimate Detection

F requency Mean ( range) 50 th /75 th /90 th

Percentile b BE Point

Estimate Detection

F requency Mean ( range) 50 th /75 th /90 th

Percentile
Ammonia Nitrogen 12 25/26 12 (nd a

- 160) 2.1/6.7/160 16 7/9 16 (nd

- 97) 4.8/18/97

Total Phosphorous 13 25/26 13 (nd

- 76) 9.7/17/76 8.5 7/9 8.5 (nd

- 20) 11/17/20

Total Residual Chlorine 0.096 10/26 0.096 (nd

- 0.3) nc c /0.13/0.3 0.29 6/9 0.29 (nd

- 1.5) 0.11/0.29/1.5
Total Suspended Solids ( TSS) 210 26/26 210 (10

- 1100) 130/190/1100 190 9/9 190 (16

- 460) 84/400/460

Biochemical Oxygen Demand ( BOD) 840 24/2 6 840 (nd

- 5100) 440/830/5100 470 6/9 470 (nd

- 1800) 300/770/1800

Hexane Extractable Oil

and Grease ( HEM) 3.2 18/26 3.2 (nd

- 16) 1.5/2.9/16 5.4 6/9 5.4 (nd

- 28) 1.4/4.2/28

Silica Gel Treated

- Hexane

Extractable Oil and Grease ( SGT

- HEM) 3.4 15/26 3.4 (nd

- 4.4) 0.98/2.2/4.4 4.9 4/9 4.9 (nd

- 12) nc/2.8/12

Aluminum ( total) 827 24/26 490 (nd

- 1000) 670/850/1000 1100 9/9 1100 (850

- 1700) 930/1500/1700

Arsenic ( dissolved) 31 10/26 31 (nd

- 350) nc/5.7/350 22 5/9 22 (nd

- 97) 5.3/38/97

Arsenic ( total) 40 16/26 40 (nd

- 380) 4.8/13/380 35 5/9 35 (nd

- 150) 8.7/64/150

Cadmium ( dissolved) 0.77 1/26 0.77 (nd

- 1.4) nc/nc/1.4

Copper ( dissolved) 96 23/26 96 (nd

- 920) 15/38/920 34 8/9 34 (nd

- 180) 12/32/180

Lead ( dissolved) 0 3/26 2.3 (nd

- 8) nc/nc/8 2.7 1/9 2.7 (nd

- 8.7) nc/nc/8.7

Selenium ( dissolved) 9.2 6/26 9.2 (nd

- 61) nc/2.5/61 6 1/9 6 (nd

- 14) nc/nc/14

Zinc ( dissolved) 180 26/26 180 (24

- 790) 120/240/790 190 8/9 190 (nd

- 640) 53/420/640

a Nondetect ( censored) concentrations were replaced with 1⁄2 of the reporting limit for calculat ing average concentrations.

b Percentiles are the concentration below which that percentage of the values fall. So 75 percent of observations occur below the 75th percentile

.

c Distribution statistics were only calculated when analytes were detected at a s ufficient frequency.136

Graywater and Graywater Mixed with Sewage. Graywater volumes depends primarily on the type of vessel and the number of passengers and crew onboard ( Table 18 ) . For example, cruise ships generate more graywa ter than cargo ships since they have many more passengers and crew. Further, cruise ships also generate higher graywater volumes per capita than cargo ships because passengers and crew on these vessels use galleys and accommodations ( sinks and showers) to a greater extent than crew on cargo ships. Estimated graywater generation rates reported in response to EPA’s 2004 cruise ship survey ranged from 36 to 119 gallons/day/person, with an average of 67 gallons/day/person ( USEPA 2008 ) for large cruise ships. Finland’s Ministry of the Environment estimated cruise ship grey water generation at 120 liters per day ( 32 gallons/day/person) ( (BMEPC) 2007 ) . During EPA’s 2004 Alaskan cruise ship sampling program, graywater generation on one ship was 45 gallons/day/person ( USEPA, 2006).

Table 18

. Estimated Graywa ter Discharge Rates Used in EPAs BE

.

Vessel Type Number of Passengers

and Crew a Estimated Graywater

Discharge Rate d

gal/day m 3 /day

Barges 4 61 e 0.23

Cargo/Bulk Carriers 25 1,125 4.2

Commercial Fishing Vessels 29 1,305 4.9

Large Cruise Ships 3,455 15 5,475 588

Medium Cruise Ships 315 14,175 53.6

Large Ferries 559 25,155 95.2

Oil and Gas Tankers 22 990 3.7

Passenger Vessels ( tour boats, water taxis, etc.) 282 b 12,690 48 Utility Vessels ( tug boats, off

- shore vessels, etc.) 6 c 1 270

a) Number of cre w and passengers from EPA’s NOI Report ( USEPA, 2011 a ) unless otherwise specified. b) Average number of passengers and crew calculated based on information gathered from both personnel

communication with operators and web site marketing data for tour boats, dinner cruise vessels, wedding party boats, whale watching tours, and shuttle service vessels. Vessels do not provide overnight accommodations. c) Based on personal contact with AEP River Operations. d) Based on a graywater g eneration rate of 45 gallons p er person per day ( USEPA, Sampling Episode Report

for Holland America Veendam , Sampling Episode 6503) Washington, DC ( USEPA. 2006). e) Average flow adjusted based on an estimated 33.8% of barges are manned and would therefore generate
graywater ( USEPA, 201 1 a , Section 2.2.1.5 and Figure 2.1

- 1)

Graywater can contain high levels of pathogens, nutrients, soaps and detergents, and organics. EPA analyzed the risk of this discharge in its BE due to the high number of vessels discharging, the large volume and fr equency of discharges, along with the potentially high risk posed by the concentration and types of pollutant discharged. EPA estimated concentrations of graywater pollutants based on data for the vessel types examined in the Report to Congress ( Table 19 ). Contaminants identified in graywater include metals oil and grease and nutrients.137

Table 19

. Estimated Graywater Pollu tant Concentrations use d in EPAs Biological

Evaluation.

P ollutant Point

Estimate

Us ed in BE Detection

Frequency Mean (range) 50 th /75 th /90 th

Percentiles c

Ammonia a s Nitrogen ( NH3

- N,

mg/L) 1.3 (2.1) a 8/8 1.3 ( 0.19

- 4.5) 0.75/1.8/4.5

Total Phosphorus ( mg/L) 1.4 (10) 8/8 1.4 ( 0.42

- 3.4) 1.2/2.2/3.4

Total Residual Chlorine ( mg/L) 0.12 6/8 0.12 ( nd b

- 0.11) 0.02/nc d /0.11

Total Suspended Solids ( TSS)

( mg/L) 52 8/8 52 ( 14

- 81) 58/69/81

Hexane Extractable Material ( HEM) ( mg/L) 39 (149 ) 8/8 39 ( 9.4

- 100) 29/68/100

Silica Gel Treated HEM ( SGT

- HEM)

( mg/L) 8.1 (36.6 ) 6/8 8.1 ( nd

- 35) 1.5/9.4/35

Alum inum ( total, μg/L ) 380 8/8 380 ( 50

- 910) 420/540/910

Arsenic ( total, μg/L ) 2 2/8 2 (

- 2.9) /1.5/2.93

Copper ( dissolved, μg/L) 55 8/8 55 ( 5.3

- 280) 17/60/280

Lead ( dissolved, μg/L) 2.5 4/8 2.5 ( nd

- 6) 1.1/4.2/6

Zinc ( dissolved, μg/L) 400 8/8 400 ( 70

- 1500) 240/610/1500

a Values in parentheses are for large cruise ships.

b Nondetect ( censored) concentrations were replaced with 1⁄2 of the reporting limit for calculating
average concentrations.

c Percentiles are the concentrations of each analyte below whi ch at least that percentage of the values fall. So the 75th percentile is the concentration below which at least 75% of the observations

were found.

d Distribution statistics were only calculated when analytes were detected at a sufficient frequency.

Ste rn Tube Packing Gland Effluent and Other Oil/Water Interfaces. A stuffing box packed with greased flax rings is designed to leak a few drops per minute of ambient water ( EPA estimate, 4 to 8 gallons per day ( USEPA 2 010 b ) to cool the gland when a vessel is underway. Stuffing boxes are also used to seal rudder stocks that penetrate the hull below the waterline. The packing gland effluent water is often collected in a segregated section of the bilge that contains

an a utomatic bilge pump.

To estimate stern tube effluent discharge rates for the other vessel types requiring detailed analysis for the BE, EPA used the size of a utility vessel ( measured as gross tons), compared this vessel size to the other vessel types, an d applied an average stern tube packing gland discharge rate of 6 gallons per day as shown in the example calculation below.

Example : 25 gross tons ( fishing vessel)/80 gross tons ( utility vessel) x 6 g/day = 2 g/day

Pollutants in the stern tube packing gland effluent include metals, oil and grease, suspended solids, organics, and phthalates. Oil to sea interfaces include any mechanical or other equipment138

where seals or surfaces may release small quantities of oil and grease into the sea. Examples

includ e controllable pitch propellers, rudder bearings and wire ropes and cables that have

lubricated ( greased) surfaces which are submerged in seawater during use. EPA analyzed the risk of this discharge in its BE due to the high number of vessels discharging, the large volume and frequency of discharges, along with the potentially high risk posed by the concentration and types of pollutant discharged.

Table 20 shows the vessel sizes and the estimated stern tube packing gland discharg e rates for the vessel types requiring detailed analysis. Flows range from as little as 2 gal/day for commercial fishing vessels to as great as 4,000 gal/day for large cruise ships.

Table 20

. Estimated Stern Tube Packing Gland Eff luent Discharge Rates used in EPAs

BE.

Vessel Type Vessel Size ( gross tons) a Estimated Stern Tube

Packing Gland Effluent Discharge Rates

m 3 /day gallons/day

Barges 705 0 e 0 e Cargo/Bulk Carriers 15,939 4.5 1,195

Commerci al Fishing 25b 0.008 2

Large Cruise Ships 53,526 15.1 4,014

Medium Cruise Ships 4,584 1.3 343

Large Ferries 1,451 0.4 108

Oil and Gas Tankers 24,908 7.1 1,868 Passenger Vessels ( e.g., water t axis, tour boats) 35 c 0.01 2.6

Utility Boats ( tugs and tow boats) 80 d 0.02 6 a) Vessel size from EPA’s NOI Report ( USEPA, 2011 a ) unless otherwise specified. b) Vessel gross tons estimated assuming 50% of commercial fishing vessels are 40 feet long ( USEPA, 2010 ). c) Vessel gross tons estimated assuming 50% of passenger vessels are 45 feet long ( USEPA, 2010 ). d) Vessel gross tons estimated assuming 50% of utility vessels are 65 feet long ( USEPA, 2010 ). e) Barges do not have propell er shafts and associated stern tube packing glands.

EPA estimated concentrations of stern tube packing gland effluent pollutants based on data for the vessel types examined in the Report to Congress ( Table 21 ). Contaminants ide ntified in stern tube packing gland effluent includes metals and volatile/semivolatile organic chemicals (sVOCs/VOCs).

Table 21

. Estimated Stern Tube Packing Gland Effluent Pollutant Concentration s used in

EPAs Bi ological Evaluatio n.

P ollutant Point

Estimate Detection

Frequency Mean (range) 50 th /75 th /90 th

Percentiles b139 Used in

BE

Total Phosphorus ( mg/L) 0.13 7/9 0.13 (nd a

- 0.25) 0.1/0.22/0.25

Total Suspended Solids ( TSS

, mg/l) 59 9/9 59 (5.6

- 270) 28/81/270

Hexane Extractable Mater ial ( HEM
, mg/l) 14 5/9 14 (nd

- 67) 1.65/23/67

Chromium, (d issolved

, μg/L) 13 5/9 19 (nd

- 110) 3.8/20/110

Silica Gel Treated HEM ( SGT

- HEM
, mg/l) 19 5/9 13 (nd

- 56) 1.7/19/56

Copper (dissolved, μg/L) 22 4/9 22 (nd

- 92) nc c /38/92

Nickel (dissolved, μg/L) 210 6/9 210 (nd

- 1000) 13/370/1000

Nickel (t otal
, μg/L) 610 8/9 610 (nd

- 3200) 45/970/3200

Bis ( 2

- ethylhexyl)phthalate ( μg/L) 4.7 3/9 4.7 (nd

- 24) nc/4.1/24

Tetrachloroethene ( μg/L) 1.4 1/9 1.4 (nd

- 0.2) nc/nc/0.2

a Nondetect ( censored) concentrations were repl aced with 1⁄2 of the reporting limit for calculating average

concentrations.

b Percentiles are the concentrations of each analyte below which at least that percentage of the values fall. So the 75th percentile is the concentration below which at least 75% of the observations were found.

c Distribution statistics were only calculated when analytes were detected at a sufficient frequency.

Underwater Ship Husbandry Discharges. Although discharges from underwater ship husbandry is considered a low volume and l ow frequency discharge generated by a low number of vessels, EPA analyzed the risk of this discharge in its BE due to the high potential risk posed by the concentration and types of pollutant discharged. Underwater husbandry discharge

volumes were not est imated because EPA was unable to find available data to accurately estimate volume of these discharges. Furthermore, EPA round approached ANS risk qualitatively, so volume estimates were not necessary. EPA’s Report to Congress did provide copper release e stimates for underwater ship husbandry events ( Table 22 ).

Table 22

. Dissolved Copper Release from Vessel AFSs During an Underwater Hull Cleaning “Event” ((Schiff et al. 2003), after ( USEPA 2010 ))

.

AFS Cl eaning Method Copper Release ( μg/cm 2 /event)

Epoxy copper antifouling paint Less abrasive management practices 8.6

No management practices 17.4

Hard vinyl/Teflon
copper antifouling
paint Less abrasive management practices 3.8

No management practices 4.2

Biocide

- free coating Less abrasive management practices 0.03

No management practices 0.05

Discharges not Evaluated in the BE

. EPA’s decision process identified a number of discharges

that would not be evaluated in the BE due to the relative number of vessels releasing the

dis charge, the volume of the discharge, and /or the potential risk posed by the concentration and constituents of that discharge. Table 23 summarizes each discharge not evaluated in the BE and140

EPAs decision process for each

. Details on discharge estimates and other information EPA used in arriving at these decisions are provided in footnotes to table 3

- 3 in the BE.141

Table 23

. Decision Process for those Vessel Discharges Not Evaluated in EPA's BE

.

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants

Present in the Discharge Evaluated

in BE

Firemain Systems Firemain systems are found on a large number of vessels and

draw in water throu gh the sea chest to supply water for fire hose stations and sprinkler systems. Systems are activated during testing or during an actual fire. Small amounts of metals may be added to the fire water from vessel piping
system. High Low Low No

Well Deck

Disch arges The welldeck is a floodable platform used for launching or

loading small satellite vessels, vehicles, and cargo from select vessels. Welldeck discharges may include water from precipitation, welldeck and storage area washdowns, equipment and engine w ashdowns, and leaks and spills from stored machinery. Potential constituents of welldeck discharges include fresh water, distilled water, firemain water, graywater, air

- conditioning condensate, sea

- salt residues, paint chips, wood splinters, dirt, sand, or ganic debris and marine organisms, oil, grease, fuel, detergents, combustion by

products, and lumber treatment chemicals. Low High Low No

Aqueous Film Forming Foam (AFFF) Firefighting agent added to fire suppression systems on some

vessels to create foam. Used infrequently (annually or semi

annually) to test equipment for maintenance, certification, or training. Constituents include fluorosurfactants and/or fluoroproteins. Low Low Potentially High No

Freshwater Layup Freshwater layup is generated when a v essel is pier side or in

port for more than a few days, the main steam plant is shut down, and the condensers do not circulate. A freshwater layup includes replacing the seawater in the system with potable or Low Low Low No142

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants
Present in the Discharge Evaluated

in BE

surrounding freshwater (e.g., lake water). Fres hwater layup discharges can be as large as 6,000 gallons per evolution and can contain residual saltwater, freshwater, tap water, and possibly metals leached from the pipes or machinery.

Gas Turbine

Water Wash Gas turbines are used for prop ulsion and electricity generation

on some vessels. Occasionally, they must be cleaned to remove byproducts that can accumulate and affect their operation. Although not subject to the VGP but similar in operation to VGP vessels regarding this discharge, lar ge naval vessels can generate up to 244 gallons of washwater per day. Wash water can include salts, lubricants, and combustion

residuals. Low Low Potentially High No

Boiler/Economizer

Blowdown Boiler blowdown occurs on vessels with steam propulsion or a

s team generator and is used to control the concentration of scaling constituents in boiler systems. Boiler blowdown are infrequent, of short duration (seconds), in small volumes, and at high pressure. The blowdown can contain water and steam or sludge

- beari ng water at elevated temperatures (above 325°F). The discharge can contain metals or boiler water

treatment chemicals. Low Low Low No

Motor Gasoline

and Compensating Discharge Motor gasoline is transported on vessels to operate vehicles

and other machiner y. As the fuel is used, ambient water is added to the fuel tanks to replace the weight. This ambient water is discharged when the vessel refills the tanks with gasoline or when performing maintenance. Most vessels are designed not to have motor gasoline an d compensating discharge. The volume of the compensating discharge is expected to range from less than 50 gallons to up a few hundred gallons. The discharge can contain small amounts of Low Low Potentially High No143

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants
Present in the Discharge Evaluated

in BE

fuel and other fuel

- related pollutants.

C athodic

Protection Nearly all vessels having steel hulls or metal hull appendages

use cathodic protection systems to prevent corrosion. Based on underwater hull inspections and maintenance records, one

- half of anodes are consumed after three years. The pri mary pollutant released from cathodic protection is zinc. Average pierside and underway zinc generation rates are 1.3 x 10

- 6 and

5.1 x 10

- 6 (lb zinc/square foot of underwater surface area)/hr, respectively. Concentrations modeled for military vessels usin g a mixing zone envelope approach indicate that zinc, aluminum and mercury concentrations were below WQS within 0.5, 0.1 and 0.1 feet from the vessels surface, respectively ( USDOD/USEPA 1999 )

. High Low Low No

Non

- oily Machinery

Wastewater Some larger vessels are expected to have some non

- oily

machinery discharges, such as distilling plants start

- up discharge, chilled water condensate drains, fresh

- and salt water pump drains, and potable water tank overflows. These flows are generally low in volume and are not expected to contain significant amounts of pollutants. Low Low Low No

Refrigeration and

Air Condensate Discharge Condensation from cold refrigeration or evaporator coils of air

conditioning systems drips from the coils and collects in drip troughs which typically empty to a drainage system. Large numbers of vessels are equipped with refrigeration systems to keep food and other perishable items from spoi ling. Air conditioning systems are also used for passenger and crew comfort. Condensates may contain very small amounts of pollutants such as metals derived from vessel piping systems. High Low Low No

Coal Ash from

Coal Fired Propulsion Combusting coal in boilers produces a residue of combustible

flue constituents known as ash. Some of the ash consists of very fine particles that are entrained in the flue gas and carries Low High Potentially

H igh No144

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants
Present in the Discharge Evaluated

in BE

Systems on

Ferries out of the furnace (fly ash), while heavier ash settles at the

bott om of the boiler (bottom ash). Bottom ash may be hydraulically conveyed (i.e., sluiced with water). The discharge of coal ash slurry from coal fired propulsion systems on a ferry is authorized by the 2008 VGP until December 19,

2012. Seawater Cooling

Overboard Dischargenn Seawater cooling systems use ambient water to absorb the heat

from heat exchangers, propulsion systems, and mechanical auxiliary systems. The water is typically circulated through an enclosed system that does not come in direct contact with machinery, but still may contain sediment from water intake, traces of hydraulic or lubricating oils, and trace metals leached or eroded from the piping within the system. Additionally, because it is used for cooling, the ef fluent will have an increased temperature. High Low Low No

Distillation and

Reverse Osmosis

Brine Discharges of brine can occur on vessels that do not bunker

potable water but instead use onboard plants to distill seawater or desalinate seawater using rev erse osmosis (RO) to generate fresh water. Distillation units generate brine at a rate of 17 gallons of brine for every gallon of fresh water produced. Reverse osmosis units generate approximately 4 gallons of brine for every gallon of fresh water produced . The three sources of the constituents of brine discharge are: 1) influent seawater; 2) anti

- scaling treatment chemicals; and 3) the purification plant components, including heat exchangers, casings, pumps, piping and fittings. The primary constituents

of the brine discharge are identical to those in seawater; however, they are more concentrated due to volume reduction. Low High Low No

Seawater Piping Some vessels that use seawater cooling systems introduce Low Low Potentially No145

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants
Present in the Discharge Evaluated

in BE

Biofouling anti

- fouling compounds (e.g., sodium hypochlorite) in their

interior piping and component surfaces to inhibit the growth of fouling organisms. These anti

- fouling compounds are then typically discharged overboard. Most vessels that have seawater piping systems are expected to use piping materi als such as copper to prevent biofouling rather than injecting high

concentrations of anti

- fouling compounds into their piping
systems. High

Elevator Pit

Effluent Large vessels with multiple decks are equipped with elevators

to faci litate the transportation of maintenance equipment, people, and cargo between decks. A pit at the bottom of the elevator shaft collects small amounts of liquids and debris from elevator operations and deck washdown and runoff depending on the elevator conf iguration. Water entering the elevator pit can contain materials that were on the deck, including fuel, hydraulic fluid, lubricating oil, residual water, and AFFF. The runoff may also contain lubricant applied to the elevator doors, door tracks, and other moving elevator parts. Residue in the elevator car from the transport of materials may also be washed into the elevator pit. The cleaning solvent used during maintenance cleaning operations, as well as liquid wastes generated by the cleaning process, can

a lso drain into the elevator pit sump. Low Low Potentially High No

Sonar Dome Discharge Water is used to maintain the shape and pressure of domes that

house sonar detection, navigation, and ranging equipment on large vessels. Discharges occasionally occur when the water must be drained for maintenance or repair or from the exterior of the sonar dome. Although not subject to the VGP but similar in operation to VGP vessels regarding this discharge, Low Low Low No146

Vessel Disch arge Description Number of

Vessels Discharging Discharge

Volume

and Frequency Amount and

Types of

Pollutants
Present in the Discharge Evaluated

in BE

sonar dome discharge volumes on naval vessels can range

from 300 gallons per event up to 74,000 gallons per event. Pollutant levels are expected to be low due to the ban on the use of tributyl tin. Underwater Ship Husbandry Discharges Underwater ship husbandry is grooming, maintenance, and

repair act ivities of hulls or hull appendages performed while the vessel is located in the water. Underwater ship husbandry discharges can contain aquatic organisms and residue such as rust and biocide from AFC. Underwater ship husbandry is typically performed only when excessive biological growth is causing vessel drag and excessive fuel consumption outside of regular dry dock inspections. Low Low Potentially High ANS only

Chain Locker

Effluent Chain locker effluent is water that drips from the anchor chain

and anc hor during anchor retrieval. Discharge volumes are small and chain locker effluent is expected to contain zinc, rust, paint, grease, and any constituents from the firemain

water. The small volume of chain locker effluent results in small mass loadings and provides opportunity for the transfer

of non

- indigenous species. High Low Low ANS only147

Estimates of Exposure Resulting from Disc harges Authorized by the VGP and
sVGP

This section summarizes the modeling approach EPA used to estimate exposure of threate ned and endangered species and their critical habitat to VGP

- authorized discharges. Greater detail is provided in section 5 of EPA’s BE. Representative Action Areas (RAAs) were selected by EPA

after consultation with the Services to be used to evaluate t he potential exposure and effects of permitted discharges on listed aquatic and aquatic

- dependent species, as well as their designated critical habitats. The following selection criteria were used to identify the RAAs evaluated in the

BE:

 High density of vessels covered under the VGP and sVGP to capture a reasonable “worst case” scenario;

 Varying percentages of vessel types present to capture the variability in pollutant loading

rates;

 Selection of RAAs that provide broad coverage of diverse ecosystem typ es and broad geographical representation; and Selection of “special interest” locations with known or expected sensitivities for specific taxa and their critical habitats ( i.e., Pacific coast salmonid populations, sea turtles in Gulf of Mexico, etc.) and/o r specific vulnerabilities ( e.g., historic introduction and spread of ANS in the Great Lakes).

EPA’s NOI Summary Report and EPA’s Report to Congress on Vessel Discharges were used to identify the top Home/Hailing Ports for each vessel type. For both group s of covered vessels (large and small), New York, NY; Houston, TX, and Seattle, WA were consistently among the top 10 port cities, as well as other ports such New Orleans, LA; Miami, FL; Los Angeles, CA; Norfolk, VA; Pittsburgh, PA; and St. Louis, MO (to n ame a few). Among these port cities, nearly all are representative of estuarine/marine ecosystems, except for inland port cities such as Jeffersonville (Indiana), Pittsburgh, St. Louis and Cincinnati (top port cities for barges on large inland rivers). Por t cities on a large freshwater lake (Great Lakes) system do not appear to be among the most heavily trafficked. From this initial list of port cities, EPA selected seven RAAs for detailed evaluation in the BE that were both ecologically and geographically diverse and captured several special interest locations identified during preliminary informal consultation meetings with the Services ( Table 24 ).

Table 24

. RAAs Selected for Exposure Assessment Modelin g to Represent Water Bodies and Ecosystems Inhabited by Listed Resources

.

Reference

Port/Harbor Waterbody

Represented Ecosystem

Represented Justification

Duluth, MN Lake Superior

Harbor Freshwater

[Great] Lake Major port in sensitive “cold

- water” Great La kes

area with known ANS issues. Houston,

TX Galveston Bay Estuarine/Marine RAA with large population of oil and gas tankers, barges, and cargo carriers. This area also148 encompasses nesting ground of listed sea turtles.

Miami, FL Biscayne Bay Estuarin e/Marine RAA with significant populations of cargo/bulk carriers and large population of cruise ships. Area encompasses extensive listed Johnson’s seagrass beds and represents a portion of Florida’s coral reef tract. In addition, Miami was requested to be an additional RAA during informal consultation with Services, in light of the presence of endangered species and their critical habitats with unique characteristics not found in other RAAs New York,

NY Upper and

Lower New York Bay Estuarine/Marine RAA w ith significant presence of all major vessel types, and in proximity to listed short nose sturgeon population along the Hudson River. RAA includes multiple critical habitat areas.

San Francisco,

CA San Francisco

Bay Estuary Estuarine/Marine RAA with sig nificant populations of cargo bulk carriers, utility boats, and commercial fishing vessels. Estuary is emblematic of one subjected to heavy ANS invasion. In addition, San Francisco was requested to be an additional RAA during

informal consultation with Ser vices due to the presence of a significant number of endangered and threatened species from a broad range of taxa

and critical habitat areas. St. Louis,

MO Upper

Mississippi

River Large

Freshwater River RAA with large barge and supporting utility vessel

presence. The upper Mississippi River near St. Louis also represents a large freshwater river ecosystem home to a sensitive listed freshwater unionid mussel species. Seattle, WA Puget Sound Estuarine/marine RAA with significant large and small commerci al fishing vessel presence. Puget Sound near Seattle

is home to several Pacific Northwest salmonid populations. I ncludes multiple critical habitat s

.

EPA selected simple screening

- level models to estimate exposure concentrations in the receiving

water from vessel discharges covered under the VGP and sVGP. EPA selected the “fraction of freshwater model” to calculate receiving water concentrations in a estuarine harbor and a dilution equation to estimate receiving water concentrations in a river harbor.

For the fraction of freshwater model, EPA identified two types of estuarine systems in commonly found in the port areas:

 Estuaries where tidal influence is the primary driver for mixing in the estuary as indicated by a lower river flow and higher salini ty value; and

 Estuaries where the freshwater inflow is the primary driver for mixing in the estuary as indicated by a higher river flow and lower salinity value.149

For the river harbor model, the dilution equation requires the average annual river flow rate to calculate a receiving water concentration. EPA selected the minimum and maximum river flow rates from the nine river harbors to represent the bounding conditions for the river harbors, resulting in two river harbor scenarios for the BE effects analysis

.

A range of water body flow, salinity, vessel populations, and loading assumptions were applied to the model to explore different “likely” and “worst

- case” scenarios pollutant exposure concentrations resulting from vessel discharges covered under the VGP and sVGP. Vessel population scenarios were developed for each RAA based on data provided by the RAA port authorities, available Department of Transportation port call data, and other vessel related literature to characterize the average daily vessel equi valents present in the RAA by vessel class.. Vessel discharges were expressed as vessel equivalents where a vessel equivalent represents a single vessel discharging 24

- hours per day in the harbor. For example, 1 vessel equivalent could represent 24 vessel s that each operate ( and discharge) for 1 hour in the modeled harbor each day. EPA also collected receiving water characteristic data from a variety of estuaries and rivers

where vessels covered under VGP and sVGP are known to travel.

EPA identified 32 pollutants to include in the modeling analysis based on pre

- permit frequency, vessel discharge flow rates and pollutant concentrations as described in Discharges Authorized by the VGP and sVGP . EPA then estimated reductions in vessel discharge pollutant

c oncentrations and flow rates anticipated to occur as the result of issuance of the VGP and sVGP for the pollutants, discharges and vessel types evaluated. Harbor specific pollutant loads were estimated for each of the seven RAAs by multiplying vessel and discharge specific pollutant loads by the number of vessel equivalents present in the RAA harbors. EPA used this information to model 14 scenarios addressing harbor specific pollutant loads for 7 RAAs and receiving water characteristics representing minimu m and maximum dilution conditions for estuary and river ports ( Table 25 ).

Table 25

. Receiving Water Model Scenarios Assessed by EPA

.

Model
Scenario

Number Harbor Scenario RAA Loading Scenario

1 Estuary mixing driven by tidal influence Seattle Pollutant Load

2 Estuary mixing driven by tidal influence Houston Pollutant Load

3 Estuary mixing driven by tidal influence New York Pollutant Load

4 Estuary mixing driven by tidal influence San Francisco Polluta nt Load

5 Estuary mixing driven by tidal influence Miami Pollutant Load

6 Estuary mixing driven by river inflow Seattle Pollutant Load

7 Estuary mixing driven by river inflow Houston Pollutant Load

8 Estuary mixing driven by river inflow New York Pollu tant Load

9 Estuary mixing driven by river inflow San Francisco Pollutant Load

10 Estuary mixing driven by river inflow Miami Pollutant Load150 11 Minimum r iver f low St. Louis Pollutant Load

12 Minimum r iver f low Duluth Pollutant Load

13 Maximum r iver f l ow St. Louis Pollutant Load

14 Maximum r iver f low Duluth Pollutant Load

EPA stated that it believed the scenarios modeled to be representative of the types of water bodies where VGP and sVGP vessels likely operate based on the wide geographical range o f waterbodies used to develop the input values. By selecting the minimum water characteristic values for the harbor scenarios, and evaluating the maximum pollutant loading values from the seven RAAs, EPA also believed that the model scenarios reasonably ca pture a “worst case” scenario within the action area applicable to the BE. Table 26 lists the receiving water concentrations estimated from the 10 estuary harbor exposure scenarios modeled. Table 27 lis ts the receiving water concentrations estimated from the four river harbor exposure scenarios

modeled.151

Table 26

. Estimated Receiving Water Concentrations Resulting from Vessel Discharge Pollutant Loadings Under Estuary Mixing Co nditions.

Polutant

Class Analyte Pre VGP and sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios) Units

Classicals Biochemical Oxyg en

Demand ( BOD) mg/L 0.195 ( 0.00629

- 0.915) 0.162 ( 0.0053

- 0.676) 17% (16%

- 26%)

Classicals Hexane Extractable

Material ( HEM) mg/L 0.0264 ( 0.00146

- 0.0656) 0.013 ( 0.000701

- 0.0324) Approximately 50% a

Classicals Silica Gel Treated

HEM ( SGT

- HEM) mg/L 0.00684 ( 0.000438

- 0.0169) 0.00343 ( 0.000215

- 0.0089) Approximately 50%

Classicals Total Residual

Chlorine mg/L 0.000281 ( 0.0000032

- 0.00214) 0.000103 ( 0.00000238

- 0.00066) 63% (26%

- 69%)

Classicals Total Suspended

Solids ( TSS) mg/L 0.0435 ( 0.00335

- 0.202) 0.0281 ( 0.0015

- 0.13) 35% (36%

- 55%)

Metals Aluminum, Total μg/L 0.405 ( 0.0542

- 1.28) 0.293 ( 0.0357

- 1.02) 28% (20%

- 34%)

Metals Arsenic, Dissolved μg/L 0.681 ( 0.0483

- 1.94) 0.68 ( 0.0476

- 1.94) Minimal change (<10%)

Metals Arsenic, Total μg/L 0.682 ( 0.0493

- 1.94) 0.681 ( 0.0484

- 1.94) Minimal change (<10% )

Metals Cadmium, Dissolved μg/L 0.000189 ( 0.0000215

- 0.000867) 0.000132 ( 0.0000123

- 0.000697) 30% (20%

- 43%)

Metals Chromium, Dissolved μg/L 0.000463 ( 0.0000565

- 0.00191) 0.000418 ( 0.0000465

- 0.00185) 10% (3%

- 18%)

Metals Copper, Dissolved μg/L 0.999 (0.14

- 2.99) 0.999 (0.11

- 2.33) 0% (0%

- 22%)

Metals Lead, Dissolved μg/L 0.0011 (0.000116

- 0.00295) 0.000934 (0.00008

- 0.00262) 15% (11%

- 31%)

Metals Nickel, Dissolved μg/L 0.102 (0.00718

- 0.291) 0.102 (0.00701

- 0.291) No change

Meta ls Nickel, Total μg/L 0.00507 (0.000654

- 0.0125) 0.00507 (0.000654

- 0.0125) No change152

Polutant
Class Analyte Pre VGP and sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios) Metals Selenium, Dissolved μg/L 0.788 (0.0538

- 2.25) 0.788 (0.0536

- 2.25) 11 No change

Metals Selenium, Total μg/L 0.837 (0.0565

- 2.39) 0.837 (0.0565

- 2.39 ) No change

Metals Zinc, Dissolved μg/L 0.145 ( 0.00813

- 0.493) 0.134 ( 0.00635

- 0.452) Minimal change (<10%)

Nutrients Ammonia As Nitrogen

( NH3

- N) mg/L 0.00149 ( 0.0000232

- 0.00954) 0.00123 ( 0.0000209

- 0.00742) 17% (10%

- 22%)

Nutrients Total Pho sphorus mg/L 0.00267 ( 0.000112

- 0.0119) 0.0000905 ( 0.00000632

- 0.000543) Greater than 94%

SVOC 2,4,6

- Trichlorophenol μg/L 0.000178 ( 0.000012

- 0.00103) 0.0000927 ( 0.00000607

- 0.000514) Approximately 50%

SVOC Benzo ( a)anthracene μg/L 0.00306 ( 0.000393

- 0.00685) 0.00306 ( 0.000393

- 0.00685) No change

SVOC Benzo ( a)pyrene μg/L 0.00198 ( 0.000214

- 0.00614) 0.00198 ( 0.000214

- 0.00614) No change

SVOC Benzo ( b)fluoranthene μg/L 0.000733 ( 0.0000185

- 0.00486) 0.000733 ( 0.0000185

- 0.00486) No ch ange

SVOC Benzo ( k)fluoranthene μg/L 0.000812 ( 0.0000205

- 0.00538) 0.000812 ( 0.0000205

- 0.00538) No change

SVOC Bis ( 2

- ethylhexyl)

phthalate μg/L 0.00117 ( 0.000122

- 0.00569) 0.000754 ( 0.000048

- 0.00424) 36% (25%

- 61%)

SVOC Chrysene μg/L 0. 00399 ( 0.00055

- 0.00943) 0.00399 ( 0.00055

- 0.00943) No change

SVOC Ideno ( 1,2,3

-

cd)pyrene μg/L 0.000655 ( 0.0000165

- 0.00434) 0.000655 ( 0.0000165

- 0.00434) No change

VOC Benzene μg/L 0.00554 ( 0.000393

- 0.0311) 0.0042 ( 0.000186

- 0.0258) 24% (17%

- 53 %)

11 EPA recalculated selenium concentrations to ref lect fewere vessels using this technology. We were not provided revised harbor model estimates, only revised total loadings and

RQs.153

Polutant
Class Analyte Pre VGP and sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios) VOC

Bromodichloromethane μg/L 0.00085 ( 0.000139

- 0.00195) 0.00025 ( 0.0000364

- 0.000573) Approximately 70%

VOC

Dibromochloromethane μg/L 0.00085 ( 0.000139

- 0.00195) 0.00025 ( 0.0000364

- 0.000573) Approximately 70%

VOC Tetrachloroethene μ g/L 0.0000116 ( 0.0000015

- 0.0000288) 0.00000582 ( 0.00000075

- 0.0000144) 50% reduction regardless of

scenario

VOC Trichloroethene μg/L 0.159 ( 0.00122

- 1.14) 0.0000344 ( 0.00000225

- 0.000191) Eliminated

a generalized for cases where the average, minim u m and maximum reductions are within 5% of each other

Table 27

. Estimated Receiving Water Concentrations Resulting from Vessel Discharge Pollutant Loadings Under River Mixing Conditions.

Polutant
Class Analyte Units Pre VGP an d sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios)

Classicals Biochemical Oxygen

Demand ( BOD) μg/L 4.38 ( 0.0506

- 9.2) 4.17 ( 0.0459

- 9.11) 5% (1%

- 9%)

Classicals Hexane Extractable

Material ( HEM) μg/L 0.396 ( 0.00445

- 0.855) 0.149 ( 0.00173

- 0.311) 62% (61%

- 64%)

Classicals Silica Gel Treated

HEM ( SGT

- HEM) μg/L 0.102 ( 0.00117

- 0.214) 0.041 ( 0 .00049

- 0.0837) 60% (58%

- 61%)

Classicals Total Residual

Chlorine μg/L 0.00152 ( 0.0000169

- 0.00328) 0.00139 ( 0.0000144

- 0.00319) 9% (3%

- 15%)

Classicals Total Suspended Solids

( TSS) μg/L 1.1 ( 0.0126

- 2.33) 0.72 ( 0.00764

- 1.62) 35% (30%

- 39%)

Metals Aluminum, Total μg/L 0.015 ( 0.000162

- 0.0334) 0.0119 ( 0.000102

- 0.0309) 21% (7%

- 37%)

Metals Arsenic, Dissolved μg/L 0.0413 ( 0

- 0.164) 0.0413 ( 0

- 0.164) no change154

Polutant

Class Analyte Units Pre VGP an d sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios)

Metals Arsenic, Total μg/L 0.0413 ( 0.000000231

- 0.164) 0.0413 ( 0.000000231

- 0.164) no change

Metals Cadmium, Dissolved μg/L 0.0000059 ( 0.0000000653

- 0.0000129) 0.00000446 ( 0.0000000366

- 0.0000118) 24% (9%

- 44%)

Metals Chromium, Dissolved μg/L 0.0000158 ( 0.000000142

- 0.0000399) 0.0000141 ( 0.000000137

- 0.0000338) 11% (4%

- 15%)

Metals Copper, Dissolved μg/L 0.047 (0.000136

- 0.164) 0.037229 (0.000106

- 0.131) 21% (20%

- 22%)

Metals Lead, Dissolved μg/L 0.0000416 (0.00000045

- 0.0000922) 0.0000362 (0.000000345

- 0.0000878) 13% (5%

- 23%)

Metals Nickel, Dissolved μg/L 0.0062 (0.000000338

- 0.0246) 0.0062 (0.000000334

- 0.0246) minimal change <2%

Metals Nickel, Total μg/L 0.000211 (0.000000716

- 0.000723) 0.000211 (0.000000716

- 0.000723) no change

Metals Selenium, Dissolved μg/L 0.0479 (0

- 0.191) 0.0479 (0

- 0.1 91) no change

Metals Selenium, Total μg/L 0.051 (0

- 0.203) 0.051 (0

- 0.203) no change

Metals Zinc, Dissolved μg/L 0.00446 ( 0.0000496

- 0.00968) 0.00418 ( 0.0000439

- 0.00948) 6% (2%

- 11%)

Nutrients Ammonia As Nitrogen

( NH3

- N) μg/L 0.0149 ( 0. 000167

- 0.032) 0.014 ( 0.000167

- 0.0285) 6% (0%

- 11%)

Nutrients Total Phosphorus μg/L 0.0225 ( 0.000271

- 0.0453) 0.00248 ( 0.0000242

- 0.00594) 89% (87%

- 91%)

SVOC 2,4,6

- Trichlorophenol μg/L 0.00000539 ( 0.0000000626

- 0.0000113) 0.00000376 ( 0.0000000313

- 0.00000986) 30% (13%

- 50%)

SVOC Benzo ( a)anthracene μg/L 0.000268 ( 0.00000164

- 0.0008) 0.000268 ( 0.00000164

- 0.0008) no change

SVOC Benzo ( a)pyrene μg/L 0.0002 ( 0.00000159

- 0.000536) 0.0002 ( 0.00000159

- 0.000536) no change

SVOC Benzo ( b)fluoran thene μg/L 0.000114 ( 0.00000139

- 0.000228) 0.000114 ( 0.00000139

- 0.000228) no change155

Polutant

Class Analyte Units Pre VGP an d sVGP Receiving

Water Average ( range) Post VGP and sVGP Receiving

Water Average ( range) Percent Reduction Average Scenario Loading (worst

- best case scenarios)

SVOC Benzo ( k)fluoranthene μg/L 0.000126 ( 0.00000154

- 0.000252) 0.000126 ( 0.00000154

- 0.000252) no change

SVOC Bis ( 2

- ethylhexyl)

phthalate μg/L 0.0000981 ( 0.00000118

- 0.000198) 0.0000839 ( 0.000000979

- 0.000175) 14% (12%

- 17%)

SVOC Chrysene μg/L 0.000325 ( 0.00000164

- 0.00102) 0.000325 ( 0.00000164

- 0.00102) no change

SVOC Ideno ( 1,2,3

- cd)pyrene μg/L 0.000102 ( 0.00000124

- 0.000203) 0.000102 ( 0.00000124

- 0.000203) no change

VOC Benzene μg/L 0.000579 ( 0.00000701

- 0.00117) 0.000538 ( 0.00000641

- 0.0011) <10%

VOC

Bromodichloromethane μg/L 0.0000431 ( 0.000000451

- 0.0000981) 0.0000159 ( 0.000000116

- 0.0000443) 63% (55%

- 74%)

VOC

Dibromochloromethan e μg/L 0.0000431 ( 0.000000451

- 0.0000981) 0.0000159 ( 0.000000116

- 0.0000443) 63% (55%

- 74%)

VOC Tetrachloroethene μg/L 0.000000484 ( 0.00000000164

- 0.00000166) 0.000000242 ( 0.000000000821

- 0.00000083) 50%

VOC Trichloroethene μg/L 0.0595 ( 0.00 00000232

- 0.237) 0.0000014 ( 0.0000000116

- 0.00000366) 100% (50%

- 100%)156

Geographical Distribution and Overlap of Disc harges Authorized by the VGP and
sVGP with Threatened and Endangered Species

In order to determine whether listed resources will be expos ed to these discharges, it is necessary to characterize the overlap of vessel operation s with species and their c ritical h abitat. In its BE, EPA modeled exposures for several Representative Action Areas (RAAs) selected after

consultation with the Services to evaluate the potential effects of the permit actions on listed aquatic and aquatic

- dependent species, as well as their designated critical habitats.

The Services provided EPA with a list of over 1,900 federally

- listed species, 612 of which were

ident ified by EPA as aquatic and aquatic

- dependent animal and plant species with more than limited exposure to “waters of the United States” and may be affected by ANS o r pollutants from vessel discharges covered under the proposed actions

. Th e EPA species lis t (see Appendix E, BE; EPA 2012a) include d 44 mammals, 44 birds, 24 reptiles, 27 amphibians, 135 fish, 27 crustaceans, 34 snails, 93 bivalve mollusks (clams and abalone), 25 insects, 2 corals, 157 sea grasses and aquatic and wetland plants and 217 designat ed critical habitats that may be affected by the permits. The ranges for 454 of these aquatic and aquatic

- dependent animal and plant species are concurrent with waters generally navigable by vessels covered under the VGP and sVGP. The list of 454 aquatic and aquatic

- dependent animal and plant species identified in EPA’s analysis constitute the full range of species and their designated critical habitats that may be affected by both ANS and traditional pollutants from the permit actions

, while all 612 were identified as potentially affected by ANS

. The FWS addresses 568 endangered, threatened, proposed, and candidate species and their critical habitats in this biological and conference opinion. The list of species addressed by EPA’s RAA analysis include d 5 9 of the 568 FWS species

.

The remaining FWS listed

, proposed , and candidate species are not located in the specific RAAs examined by EPA, but are also likely to be exposed to effects of vessel discharges because their ranges are concurrent with waters g enerally navigable by vessels covered under the V GP and

sVGP , or exist in or rely on wetlands and waters of the U.S. that are vulnerable to ANS

invasions

.
The VGPs include limits on certain discharges in Waters Federally Protected Wholly or in Part for Con servation . This list includes marine sanctuaries, units of the National Park System, units of the National Wildlife Refuge System, National Wilderness areas, national wild and scenic rivers system components and any water body designated as an Outstanding National Resource

Wa ter (ONRW) by a State or Tribe

.
These discharge limitations for Waters Federally Protected Wholly or in Part for Conservation

include:

 Bilgewater may not be discharged into Waters Federally Protected Wholly or in Part for

Conservatio n unless the discharge is necessary to maintain the safety and stability of the ship.157

 Ballast water discharge or uptake must be avoided in/into waters within, or that may directly affect, marine sanctuaries, marine preserves marine parks, or coral reefs o r Waters Federally Protected Wholly or in Part for Conservation

.

 U nexchanged or untreated ballast water or sediment may not be discharged to Waters Federally Protected Wholly or in Part for Conservation by:

o Any vessels that carry ballast water that was ta ken on in areas less than 200 nautical miles from any shore that will subsequently operate beyond the Exclusive Economic Zone (EEZ) and more than 200 nm from any shore

o Vessels Carrying Ballast Water Engaged in Pacific Nearshore Voyages

o Vessels with any Ba llast Water Tanks that are Empty or have Unpumpable

Residual Water

o Vessels Engaged in Pacific Nearshore Voyages with Unpumpable Ballast Water and Residual Sediment (including NOBOBs)

 AFFF discharges may not occur in or within 1 nm of Waters Federally Prot ected Wholly or in Part for Conservation unless:

o For emergency purposes;

o By rescue vessels such as fireboats for firefighting purposes; or

o By vessels owned or under contract to do business exclusively in or within 1 nm of those protected areas by the Uni ted States government or state or local
governments.

 Boiler/economizer blowdown may not be discharged In Waters Federally Protected Wholly or in Part for Conservation except for safety purposes.

 Firemain systems may not be discharged Waters Federally Pr otected Wholly or in Part for Conservation except for safety purposes.

 Graywater may not be discharged Waters Federally Protected Wholly or in Part for

Conservation by vessels with the capacity to store graywater. Vessels which cannot store
graywater mus t minimize graywater production.

Response Analysis

The previous Exposure Analysis section reviewed the discharges in terms of their volume and constituent mixtures, then described EPAs harbor modeling methodology and results. This

section summarizes the modeled harbor discharge constituent concentrations for each pollutant class and the relative importance of discharge sources before reviewing the responses of listed, or surrogate, species to exposures to these pollutants.

Nutrients158

In their Biologica l Evaluation EPA acknowledged that Nutrient pollution is one of the leading causes of water quality impairment in the nation, primarily because the quantity of nutrients reaching the nations waters has dramatically escalated over the past 50 years (USEPA, 2009). Nutrient loadings in the form of nitrogen and phosphorus to waterbodies impact water quality by stimulating plant and algae growth which subsequently may result in depletion of dissolved oxygen, degradation of habitat, development of harmful algal b looms, impairment of the waterbody’s designated use, and impairment of drinking water sources. In general, nitrogen is most often the limiting nutrient in estuarine waters, and phosphorus is more often limiting in freshwater systems. This means that the gr owth of phytoplankton is substantially controlled by the concentration and availability of phosphorus in freshwater systems. Increased phosphorus concentrations can lead to changes in composition of flora and fauna present, increased eutrophication of a wa ter body, rates of ecosystem functioning, nutrient uptake, recycling rates of the ecosystem, and decomposition rates (WERF, 2010). Determining risk to aquatic life from excess nutrients (e.g.,eutrophication) is complicated because nitrogen and phosphorus a re essential for primary production in aquatic ecosystems, and over

- enrichment problems involve multiple interrelated variables. The most visible symptom of eutrophication is the excessive algal growth that reduces water clarity. Eutrophication can also s ignificantly affect phytoplankton community structure resulting in a greater abundance of less desirable taxa such

as blue

- green algae. These changes in the phytoplankton community can have cascading effects on higher trophic levels and the eventual transf er of organic carbon from the primary producers to less desired species

– for example, the replacement of seagrasses with less desirable vegetation types (WERF, 2010).

Nutrients in Vessel Discharges

EPA reported that nutrients, particularly ammonia nitroge n and total phosphorus, were constituents commonly found in bilgewater, deck washdown, fish hold and fish hold cleaning effluent, and graywater. Based on studies of pollutants in vessel discharges EPA reported that average ammonia nitrogen concentrations w ere above their screening level benchmark of 1.2 mg/L in both fish hold effluent and fish hold cleaning effluent (USEPA, 2010 ) (see Appendix D

of EPA’s BE for more information regarding screening level benchmarks). Protein, free amino acids, and nucleotid es from fish and fish by

- products are all potential sources of nitrogen in the fish hold effluent and fish hold cleaning effluent. EPA also reported that ammonia nitrogen concentrations can also be above screening level benchmarks in graywater. EPA found t he average ammonia nitrogen concentration from all graywater sources on cruise ships was 2.1 mg/L (USEPA, 2008). Average phosphorous concentrations were above EPAs screening level benchmark of 0.1 mg/L in bilgewater, graywater, deck washdown discharges, f ish hold effluent, and fish hold cleaning effluent. EPA suggested that the likely source of phosphorous in bilgewater and deck washdown water was liquid detergents used on board for deck washing. They also indicated that sources of phosphorous in graywater and fish hold effluent may reflect

food or other wastes. Table 28 shows the average concentrations of ammonia nitrogen and total phosphorous in the various vessel discharges requiring detailed analysis.159

Table 28

. Average nutrien t concentrations in vessel discharges at levels above screening level benchmarks. [Adapted from Table 3

- 14, USEPA, 2012a]

Vessel Discharge Requiring Detailed Analysis Average Ammonia Nitrogen (mg/L) Average Total

Phosphorus (mg/L)

Bilgewater 1.7 3.0

Deck Washdown NA 1.7

Fish Hold Effluent 12 13

Fish Hold Cleaning Effluent 16 8.5

Graywater 1.3

2.1a 1.4

10a

Source: USEPA, 2010 , unless otherwise specified. NA: Pollutant does not exceed the screening level benchmark for this vessel discharge (see Appendi x D of this BE for more information regarding screening level benchmarks). a) Average concentration in graywater from large cruise ships (USEPA, 2008, EPA sampling data).

Direct effects of Ammonia Nitrogen

As mentioned above, nitrogen is essential for pri mary production in aquatic ecosystems and

over

- enrichment can lead to eutrophication and water quality impairments. Ammonia nitrogen (NH3 and NH4

- ) can also be highly toxic. Recent studies have shown that freshwater mollusks (mussels and snails) are part icularly sen sitive ammonia (Wang et al. 2007a; Wang et al. 2007b;

Besser et al. 2009 ). In fact, they are more sensitive than previously tested species. As a result, EPA is revising their 304a aquatic life criteria for ammonia to include these new mollusk data so that freshwater mussels, snails and other mollusks are adequately protected. A draft of the updated ammonia criteria document was published in the federal register for public comment in

2009.

EPA used the freshwater mussel Lampsilis siliquoidea ( Fatmucket) as a surrogate to represent freshwater invertebrates in their response analysis. The IC20 for Fatmucket (0.3027 mg N/L) was the lowest chronic effects thresholds (CTET) among all taxa (freshwater or marine) considered in the analysis (EPA BE Ta ble 5

- 49). EPA predicted the concentrations of ammonia nitrogen in river and estuarine harbors, resulting from vessel discharges, to be 0.0000285 (mg N/L) and 0.00742 (mg N/L), respectively. These concentrations are orders of magnitude below

the Fatmucke t IC20 and the resulting risk quotients were extremely low (EPA BE Table 5

- 50). Therefore risks from chronic exposure to ammonia nitrogen in harbors

, where vessel discharges

are the sole source

, should be very low.160

Phosphorus

EPA noted in their BE t hat under natural conditions, freshwater ecosystems generally have low phosphorous concentrations (< 100 μg/L), but each waterbody is different, and there are numerous factors which impact how any particular waterbody will respond to excess nutrient

loadin g, including hydraulic residence time, freshwater inflow, clarity and light attenuation, geologic substrate, depth, temperature, and degree of physical alterations, such as channelizing. Additionally, excessive phosphorus and the resulting problems associa ted with nutrient enrichment in general are frequently widespread and manifested at a location remote from the sources, and may not show themselves for some time after significant inputs to the system have occurred (WERF, 2010). Because of the above, EPA c hose to use the lowest statewide and/or

site

- specific water quality criteria for total phosphorus (10 μg/L) as the basis for CTET A,W in the analysis.

Services Conclusion. Since the Services assessment for a mmonia n itrogen is based on EPAs exposure analys is which assumed that vessel discharges would be completely mixed within the harbor area, acute or short term exposure of species to pollutants in close proximity to vessels, i.e. within discharge mixing zones, is not considered. The uncertainty associate with this assumption is discussed in the section entitled “Services Assessment of Uncertainty in the Exposure Analysis

. ” Although, high ammonia concentrations are predicted for discharges (fish hold and fish hold cleaning effluent) from some vessels, the infrequent occurrence of those vessels (fishing vessels) in freshwater river RAA harbors (EPA BE) suggest that the likelihood that sensitive listed species will be exposed, short term, to acutely toxic concentrations of ammonia is low. In addition, efflu ent limits and BMPs in the VGP/sVGP for nutrient reduction should further reduce the chance of hazardous exposures.

EPA estimated that vessel discharges would result in phosphorus concentrations of 0.00594 ug/L in freshwater environments and 0.543 ug/L i n Estuarine/Marine Environments. These values are well below the most protective phosphorus criteria (at this time). Low expected phosphorus concentrations along with effluent limits and BMPs required by the VGP/sVGP for nutrient reduction suggest that v essel discharges will not produce the adverse effects associated with

nutrient enrichment.

Effluent limitations and BMPs in the 2013 VGP and sVGP are expected to reduce/minimize nutrient loadings from vessel discharges. The Services conclude that advers e effects of nutrient loading by vessel discharges under the VGPs should not adversely affect listed resources.

Oil and Grease

Oil and grease are expressed in the BE in terms of hexane extractable material (HEM) and silica gel treated hexane extractable material (SGT

- HEM). HEM contains relatively nontoxic nonvolatile hydrocarbons, oils, fats and waxes. SGT

- HEM contains non polar substances, including toxic partially combusted hydrocarbons and petrochemical constituents such as polycyclic aromatic hydroc arbons, benzene, toluene , ethylbenzene and xylene (SVOCs and161

VOCs). EPA’s estuarine harbor model estimated post per mit HEM concentrations to average

0.01 3 mg/L and rang e from 0.0007 to 0.03 mg/L . These values represent an approximately 50 percent reduct ion in hexane extractable material for all scenarios . For the river harbor model, EPA's average estimated post permit hexane extractable material concentration was 0. 15 mg/L and ranged from 0.002 to 0.3 mg/L, suggesting a pproximately 60% reduction in di scharged

hexane extractable material.

EPA states that it was necessary for the BE to examine the physical and toxic effects of oil and grease separately because a qualitative assessment was required for the HEM and quantitative assessments were require d for the individual toxic constituents in the SGT

- HEM in the section evaluating SVOCs and VOCs

. While HEM averaged below the 15 mg/L U.S. Coast Guard and

EPA standard screening level benchmark in most discharges, all discharges had at least one

observati on which exceeded this benchmark. Graywater was the only discharge with an average concentration exceeding the benchmark, at 39 mg/L, greater than twice the benchmark. EPA acknowledged that, d ue to the highly variable graywater generation volumes possibl e within vessel classes, EPA was unable to fully define graywater generation rates.

Given the particularly high concentrations of HEM in gray water and the large volume of graywater relative to other discharges, graywater accounts for greater than 90% of the oil and grease discharged incidental to the normal operation of vessels. Loads range from as little as 4 grams per day from utility boats to as much as 600 kg per day (0.6 tons) from large cruise vessels. The source of oil and grease found in graywa ter is expected to originate from oils, fats and grease used in cooking or personal care products. Oil and grease in fish hold effluent, which is estimated at 5 kg/and day accounts for less than 1% of a fishing vessels oil and grease discharge, is likely from the tissues of the fish contained in the hold. Such products (i.e., non

volatile hydrocarbons, vegetable oils, animal fats, waxes, and greases) nominally represented by

HEM minus SGT

- HEM are both biodegradable and less toxic to aquatic and aquatic

- de pendent wildlife ( ( USEPA 2011 d ) . The available data s upport this expectation, with relative SGT

- HEM representing a much smaller fraction of graywater HEM (17%) relative to engine associated discharges (32

- 57%). Fish hold and deckwash discharges also have higher relative SGT

- HEM,

33

- 51%, which could be cont ributed by lubricants and other petroleum products used on the

vessel. World

- wide scale, transportation activities estimated to contribute 24% of the total oil input into the oceans ( Tong et al. 1999 )

. Among other vessel sources of oil and grease, bilge

water contributes an estimated 1

- 12 grams oil and grease per vessel per day and deckw ash (an intermittent exposure) contributes 1

- 14 grams per day , depending on vessel class.

The BE indicates that m ost information on oil and grease exposures and effects for listed species

or surrogates is associated with accidents rather than discharges due to incidental vessel operation. After searching the scientific literature and reports from nongovernment and government agencies, FWS concurs with that finding. Both petroleum and non

- petroleum oils have similar physical properties that can harm wild life (USEPA, 1997) such as sticking to fur and feathers and reducing their insulative properties. Although pre

- permit oil and grease discharges exceeded the USCG limits, these are not be at the intensities encountered during oil spill events and do not li kely result in effects caused by the physical characteristics of this162

pollutant class. Further, s urface fouling by oil and grease due to VGP authorized discharges is not expected because post permit HEM estimates are far below those observed in the Report to Congress and discharges which produce a sheen must be eliminated under the VGPs

.

Metals

EPA estimates that concentrations of metals ( aluminum, arsenic, cadmium, chromium, lead, nickel, and zinc) associated with vessel discharges are likely to be belo w levels that may cause adverse effects to listed species. Under EPA s estuarine harbor model

, the overall average of post permit metals concentrations were 5% less that of pre permit conditions for worst case conditions and 13% less that of pre permit con ditions for best case reductions. The range in estimated reductions of individual metals among the estuarine harbor model s was broad, with worst case reductions of selenium, nickel and arsenic at 0% up to approximately 40% reduction in cadmium

under best case conditions. For the river harbor model, the overall average post permit metals concentrations were 2% less that of pre permit conditions for worst case conditions and 11% less that of pre permit conditions for best case reductions. The range in est imated reductions for

individual metals under the river harbor model s was 0% for worst case reductions of selenium, nickel and arsenic up to 44% reductions in cadmium under best case conditions. Cumulative RQs for metals ranged up to 0.311 for exposures o f estuarine/marine invertebrates, with copper accounting for about 9 5% of the cumulative RQ. Given the uncertainties in EPA’s exposure analysis (reviewed in the section entitled “Services Assessment of Uncertainty in the Exposure Analysis ” ), we believe th at these concentrations may be higher than modeled. EPA also omitted discharges from zinc sacrificial anodes in its analysis. Our rough estimate of this metals source increases the cumulative RQ for estuarine/marine invertebrates to 0.422. In addition, vessel discharges are likely to combine with other sources of metals in waterways, resulting in exposure to species at concentrations greater than considered in this analysis.

Metals are a diverse group of pollutants, many of which can be toxic to aquat ic and aquatic

dependent species. As described by EPA, vessel discharges can contain a variety of metal constituents which can come from a variety of on

- board sources. For example, EPA’s study of cruise ship graywater found a total of 13 different metals i n at least 10% of samples, with copper, nickel and zinc detected in 100% of samples (US EPA 2008). Bilgewater has also been shown to contain numerous metals, the exact constituents of which vary dependent upon on

- board

activities on the vessel and the mate rials used in the construction of the vessel. Other metals, such as copper, are known to leach from vessel hulls and can cause exceedances of water quality standards. For example, Srinivasan and Swain (2007) found significant leaching of copper from

the hu lls of sailboats, powerboats, and cruise ships.

While some metals, including copper, nickel and zinc, are known to be essential to organism function, many others, including thallium and arsenic, are non

- essential and/or are known to have only adverse imp acts. Exposure to metals at toxic levels (which is partially dependent on the essentiality of the metal) can cause a variety of changes in biochemical, physiological, morphological, and behavioral patterns in aquatic and aquatic

- dependent organisms. In th e aquatic environment, elevated concentrations of dissolved metals can be toxic to many species of163

a lgae, crustaceans, and fish because it is this dissolved form of the metal that is most readily available and taken up and internalized by an organism. Add itionally

, metals may not be fully eliminated from blood and tissues processes, and may bio accumulate in predator y and scavenging organisms further up the food chain, including fish, birds, reptiles, and mammals.

One of the key factors in evaluating risk from exposure to metals is the bioavailability of the metal to an organism. As indicated above, some metals have a strong tendency to adsorb to suspended organic matter and clay minerals, or to precipitate out of solution, thus removing the

metal from the water column. The tendency of a given metal to adsorb to suspended particles is typically controlled by the pH and salinity of the waterbody, as well as the organic carbon content of the suspended particles. If the metal is highly sorbed to particulate ma tter, then it is likely to not be in a dissolved form that aquatic organisms can process, i.e., bioavailable. Accordingly, the protection of aquatic life for metals is typically expressed in the dissolved metal

form.

In contrast, evaluation of total meta ls is more appropriate for aquatic

- dependent animals where the primary route of exposure is assumed to be through the consumption of aquatic organisms, and where the digestive process is assumed to transform all forms of metals to the dissolved phase, thus increasing the amount of biologically available metals. This latter is also applicable in aquatic animals exposed to metalloids such as arsenic and selenium.

EPA describes effects of aluminum, arsenic, cadmium, chromium, lead, nickel, and zinc that

resu lt in measured changes to survival, growth, and reproduction. In addition, each of these elements may result in sublethal effects to aquatic and aquatic

- dependent wildlife that may affect a species’ fitness, either alone or in combination with other physio logical or environmental stressors. Exposure to metals may result in a wide range of effects to endpoints such as behavior, enzyme activity, blood chemistry, osmoregulation, respiration, disease resistance, and other physiolological parameters. In many cas es, these effects have been found to occur at concentrations lower than those used in established aquatic life criteria (Eisler 2000). One example of a particular sensitive endpoint is avoidance behavior in fish, observed at

concentrations as low as 23.9 ug/L nickel and 10 ug/L zinc in rainbow trout (Eisler 2000). Other sublethal effects of metals were recorded at concentrations generally consistent with those observed to effect survival, growth, and reproduction.

While abundant data are available for met al effects in most aquatic species, information on metals in marine mammals is generally limited to tissue concentrations ( Varanasi et al. 1994

, Sanpera et al. 1996

, Wagemann et al. 1996

, Wood and VanVleet 1996

, Sydeman and Jarman

1998

, Meador et al. 1999

, Welfinger

- Smith et al. 2011 ) . There are a few in vitro investigations demonstrating cytolot oxic, genotoxic and immunotoxic effects of metals in marine mammal

tissues ( DeGuise et al. 1996

, Kakuschke e t al. 2008

, Frouin et al. 2010

, Chen et al. 2012 ) . While data from in vitro studies are difficult to interpret in ecological terms, they identify the

m echanisms by which pollutants affect organisms.

Because EPA’s modeled concentrations of the metals aluminum, arsenic, cadmium, chromium, lead, nickel, and zinc are well below levels documented to cause adverse effects in aquatic and164

aquatic

- dependent sp ecies, we do not anticipate adverse effects to listed species from therse metals discharged from vessels, even given the uncertainties associated with the assessment. We believe that monitoring of discharges from new builds will assist in the reduction of uncertainty regarding these concentrations and assist in the verification of assumptions made herein.

Copper

Copper concentrations estimated by EPA from anti

- fouling hull coatings and other discharges range up to 2.99 ug/L pre

- permit and 2.33 ug/L post

- p ermit in hypothetical estuarine harbor scenarios, and up to 0.164 ug/L pre

- permit and 0.131 ug/L post

- permit in hypothetical river harbor scenarios, suggesting a n approximately 20 percent reduction in discharges of dissolved

copper. Post permit copper est imates fell below the response thresholds selected by EPA for evaluating risks of exposure to copper. These thresholds ranged from 3.5 to 119 ug/L for freshwater organisms and from 7.9 ug/L to 249 ug/L for estuarine/marine organisms. The

threshold values EPA selected for freshwater and estuarine/marine invertebrates and for marine vertebrates were derived from NOECs and LOECs. The invertebrates NOECs were 2.5 ug/L and 6.1 for freshwater and estuarine/marine organisms, respectively. The NOEC for

estuarin e/marine vertebrates was 249 ug/L.

EPA predicts that high

- end concentrations are likely to be overestimations of even worst

- case scenarios. However, we believe that given the uncertainties in EPA’s exposure analysis (reviewed in the section entitled “Serv ices Assessment of Uncertainty in the Exposure Analysis” ), species may be exposed to copper concentrations from vessel discharges that not only meet, but exceed estimates calculated by EPA. In addition, vessel discharges are likely to

combine with other s ources of copper in waterways to produce even higher concentrations than those predicted in this analysis. At present, c opper impairs 14,000 miles of rivers and streams (12% of impaired rivers and streams) and 964 square miles of bays and estuaries (43% of impaired bays and estuaries). Due to the high sensitivity of aquatic species to copper, adverse effects to listed species are likely to occur if copper discharges from vessels reach concentrations predicted in this analysis.

As described by EPA, copper i s a nutritionally essential inorganic element for all species, both plant and animal, and thus has the potential to accumulate in tissues of aquatic animals. As long as water column or dietary concentrations are not so high as to overwhelm homeostatic

mech anisms, aquatic species are able to regulate their internal body burden of copper. Aquatic organism exposure to copper concentrations in excess of nutritional needs via other potential routes of exposure in addition to direct waterborne toxicity (e.g. diet ary toxicity) may pose a threat to listed species. Toxicity of copper to aquatic organisms is dependent on pH, temperature, alkalinity, hardness, and concentrations of bicarbonate, sulfide, and organic ligands

. Synergistic toxicity is suggested for mixture s of copper and aluminum, iron, zinc, mercury, anionic detergents, or various organophosphorus insecticides (Eisler 2010 ).

In its BE, EPA describes effects of copper from studies that directly measure changes to survival, growth, and reproduction. In add ition to these endpoints, exposure to contaminants may result in sublethal effects to aquatic and aquatic

- dependent wildlife that may affect a species’ fitness,165

either alone or in combination with other physiological or environmental stressors. In many

cas es, these effects have been found to occur at concentrations lower than those that directly affect survival, growth, or reproduction. They may also be lower than criteria that have been deemed protective of aquatic life. In the case of copper, effects upon chemoreception and behavior have been particularly well

- studied and documented in aquatic species. Though not
discussed in the BE, EPA describes these effects in its report to Congress:

At relatively low concentrations, copper is toxic to a wide range o f aquatic organisms, not just fouling organisms (CRWQCB, 2005). Concentrations as low as 5 to 25 μg/L can be lethal for marine invertebrates (Chambers et al., 2006). Elevated copper levels affect growth, development, feeding, reproduction, and survival at various life stages of fish, mussels, oysters, scallops, crustaceans, and sea urchins. High copper levels also change the types of phytoplankton that thrive in boat basins (Calabrese et al., 1984). Low levels of dissolved copper affect the olfactory capabi lities in juvenile Coho salmon, which is critical for homing, foraging, and predator avoidance (Baldwin et al., 2004). The effect of copper on olfaction of juvenile salmonids suggests that copper might affect other fish species, too. Most effects on fish a re sublethal (e.g., they may hinder metabolic processes, reproduction, development, activity levels and behavior). Thus, the damage is chronic and less noticeable than, for example, fish kills caused by sudden oxygen depletion (Evans et al., 1994).

Hecht et al (2007) compiled data on sensory effects to juvenile salmonids exposed to dissolved copper. In their analysis, benchmark concentrations ranged from 0.18

– 2.1 μg/L, corresponding to reductions in predator avoidance behavior from approximately 8

– 57%. Recent work is consistent with previous observations ( Baldwin et al. 2011

, McIntyre et al. 2012 )

. These e ffects can manifest over a period of minutes to hours and can persist for weeks. In aquatic systems, chemoreception is one of oldest and most important sensory systems used by animals to collect information on their environment and generate behaviors invo lved in growth, reproduction, and survival (Pyle and Mirza 2007). These behaviors include recognition of conspecifics, mates and predators, food search, defense, schooling, spawning and migration. Stimuli are perceived by sensory structures and converted t o electrical signals that are conducted to the central nervous system where the information is integrated and appropriate behavioral responses are generated (Baatrup 1991). Detection of chemical signals involves not only recognition of a spectrum of unique compounds or mixtures but also their spatial and temporal distribution in the medium (Atema 1995). Sensory receptors are in direct contact with the environment, and therefore pollutants may disrupt normal chemosensory function by masking or counteracting biologically relevant chemical signals or by causing direct morphological and physiological damage to the receptors (Baatrup 1991).

These concentration thresholds for juvenile salmonid sensory and behavioral responses fall within the range of other subl ethal endpoints affected by dissolved copper, such as behavior, growth, and primary production (Hecht et al 2007). In addition to sensory effects, impaired disease resistance, hyperactivity, impaired respiration, disrupted osmoregulation, pathology of

kidn eys, liver, and gills, impaired function of olfactory organs and brain, altered blood chemistry, and enzyme activity have been documented in fish, with effects thresholds as low as166

0.1 ug/L (Eisler 2000). Like olfactory effects, other sublethal effects ma y manifest quickly and persist after exposure ceases. For example, Munoz et al. (1991) observed rapid elevations of plasma cortisol, an ind icator of stress, in rainbow trout after a 1

- hour exposure to approximately 0.2 μg/L of copper at a hardness of 12 mg/L. The elevated plasma cortisol levels were maintained throughout the experiment’s duration of 21 days. Elevated plasma cortisol levels ar e indicative of stress, and potentially represent a diversion of energy from normal physiological processes that may render salmonids more vulnerable to disease.

Information for effects on other anadromous species groups are limited to data for white

s turgeon. This species, particularly early life stages, is highly sensitive to copper, with LC20 response thresholds falling within the range of concentrations causing sensory effects in salmonids as described by Hecht (2007) ( Vardy et al. 2011

, Little et al. 2012 ) . Data on copper

for marine mammals are limited to tissue concentrations ( Varanasi et al. 1994

, Sanpera et al.

1996

, Wagemann et al. 1996

, Wood and VanVleet 1996

, Sydeman and Jarman 1998

, Meador et

al. 1999

, Welfinger

- Smith et al. 2011 )

.

Sublethal effects from low levels of copper have also been documented in mussels and other mollusks. Exposure to copper at concentrations <10 ug/L has been demonstrated to affect valve closure rate, ability of g lochidia to infect host fish, growth, swimming behavior, oxygen consumption, ammonia excretion, and spawning frequency (Eisler 2000). In freshwater mussels, mean 10% inhibition concentrations were as low as 3.1 ug/L for survival and 5.5 ug/L for growth

fo llowing 28 days of exposure (Wang et al. 2009). Even lower concentrations produced effects to biomass and survival in rainbow mussels ( Villosa iris ) (Wang et al. 2011). Both metrics varied with concentration of dissolved organic content (DOC), and resulte d in reductions to biomass at levels as low as 0.8 ug/L (biotic ligand model normalized EC20; 2.5 mg/L DOC) and to survival at levels as low as 1.7 ug/L (biotic ligand model normalized EC20; 10 mg/L DOC) (Wang et al 2011).

As described above, effects of copper can manifest following very short exposures to copper (minutes to hours). Therefore, the potential for species to be exposed can result from both chronic loading and acute discharges. EPA’s Report to Congress indicated that average

concentrations of dissolved copper were found to exceed benchmark screening levels in every sampled discharge type except for outboard engine and generator engine effluents. Concentrations in these discharges ranged from 22

– 100 ug/L, far exceeding effect thresholds

descr ibed above.

EPA’s copper monitoring plan will identify areas of high concentrations of ships with copper

hull coatings. Where these areas overlap with sensitive listed species, additional actions will be taken to reduce exposure. Because copper toxicity can manifest quickly (minutes to hour) at very low concentrations, we expect adverse effects such as disrupted chemoreception to occur even with this monitoring in place. However, we expect that EPA’s monitoring plan will prevent these effects from rising to the level of jeopardy.167

Selenium

EPA reported that selenium was detected in several vessel discharges authorized by the VGPs ( USEPA 2010

, USEPA 2012 a ). Among those, discharges from Exhaust Gas Scrubbers have the potential to generate substantial sel enium loadings. As described in the section entitled “Discharges Authorized by the VGP and sVGP,” exhaust gas scrubbers are used to clean the exhaust gas system on marine diesel engines. These discharges can be highly acidic, and can

contain traces of oil , polycyclic aromatic hydrocarbons (PAHs), nitrogen, selenium and other metals. Relatively few vessels currently use seawater scrubber technology, however, more restrictive air emissions standards, adopted in 2008, will become enforceable in 2012 (EPA

201 1). To comply with these new standards, which require lower emissions of SOx, vessels can either burn low sulfur fuel oil or clean the exhaust gas. Cleaning, or scrubbing, the exhaust gas is generally accepted to be more economical (EPA 2011). Therefore , EPA anticipates that the number of vessels using exhaust gas scrubbers may increase significantly (EPA BE Table 3

- 3).

In their Biological Evaluation, EPA estimated selenium loadings to Reference Action Area (RAA) harbors from vessel discharges authorize d under the VGPs, resulting concentrations of selenium in harbor waters, and risk to listed species from selenium exposure. EPA modeled several RAA harbor scenarios using different values for selected parameters, i.e. flushing time, percentage of vessels equipped with wet exhaust gas scrubbers, and concentration of selenium in scrubber effluent. Scenarios expected to produce the highest selenium concentrations in water also predicted the highest selenium loading. For some harbors, loads exceeded 30 lb Se /day and would represent a significant new source of selenium. For example, recent studies of the San Francisco Bay

- Delta report selenium loading from oil refineries, which along with agricultural drainage comprise the two major sources of selenium to the system, of 1287 lb Se/year in 2009 or about 3.5 lb Se/day (Presser and Luoma 2010 a ). EPA predicted selenium loading to San Francisco Bay, from vessel discharges, of 30.3 lb Se/day (Post

- permit: EPA BE Table G

- 9), which is nearly 9 times greater than load ing from refineries and more than twice the combined load from refineries and agriculture.

Following discussions with the Services, EPA re

- assessed their original loading estimates for selenium. They acknowledged that their initial predictions of the num ber of vessels that would be using exhaust gas scrubbers (10% of vessels in specific classes) were unrealistically high. They also re

- examined the analytical data for selenium in exhaust gas scrubber washwater

effluent and concluded that concentrations ma y be unexpectedly high because of matrix interferences found in seawater. EPA revised their loading estimates for selenium using two approaches to account for potential interferences ( US EPA 2012 c ). The revised selenium loadings and predicted concentratio ns of selenium in RAA harbors and substantially lower than the original estimates ( USEPA 2012 c ).

It is worth noting that while EPA considers their original loading estimates to be unrealistically high they, nevertheless, concluded that risks to listed spe cies from these high selenium discharges would be “negligible” (for anadromous salmonids/sturgeons and marine mammals) or “remote” (for all other taxa) (EPA BE Table 5

- 42). These conclusions were based on risk quotients which ranged from 0.002 to 0.136 fo r surrogate animal taxa. In addition, to account for168

any possible (although unexpected) difference in sensitivity between a listed species and its surrogate, EPA opted to apply its recently published safety adjustment factor of 2.0 (see Mayer et al., 2008 ) to the Agency’s criterion continuous concentration (i.e. chronic criterion) to further evaluate risk to listed species. Risk quotients using the safety adjustment factor approach were 0.06 for saltwater and 0.1 for freshwater (EPA BE Table 5

- 56). Consi dering the relative magnitude of these predicted loadings (based on original estimates) compared to known anthropogenic sources of selenium, such as described above for the San Francisco Bay

- Delta, it is surprising that EPAs methodology predicted that risk s to listed species would so low.

As we analyzed the potential effects, on listed species, of selenium

- containing vessel discharges we became aware of information regarding the chemical/biological dynamics of selenium in aquatic environments and effects to aquatic and aquatic

- dependent species that did not appear to be considered by EPA in their risk assessment. M uch of this information was produced as the outcome of prior consultations with EPA on water quality criteria for selenium in California.

The following excerpt from a 2010 USGS report by Presser and Luoma (2010a) describes the history and context for the derivation of selenium criteria intended to protect listed fish and wildlife species in California which, we believe, will help inform the ris k assessment for the

VGPs:

“ Adjustments to the development of Se criteria specifically for California were called for by 1) the USEPA through the National Toxics Rule (NTR) and the California Toxics Rule (CTR) (USEPA, 1992; 2000); and 2) the USFWS and Na tional Marine Fisheries Service (NMFS) through their Biological Opinion (USFWS and NMFS 2000). In general, these adjustments were necessary to consider 1) the bioaccumulative nature of Se in aquatic systems; 2) Se’s long

- term persistence in aquatic sedimen ts and food webs; 3) the importance of dietary pathways in determining toxicity; and 4) protection of threatened and endangered species.”

Specifically, pursuant to section 7(a) of the U.S. Endangered Species Act (ESA) (1973), the

USEPA consulted with the USFWS and NMFS concerning USEPA’s rulemaking action for California. USEPA submitted a Biological Evaluation for their review as part of the consultation process in 1994. This evaluation found that the proposed CTR was not likely to jeopardize the

continue d existence of any federally listed species or result in the destruction or adverse modification of designated critical habitat. In April of 1998, the Services sent USEPA a draft Biological Opinion that found that USEPA’s proposed rule would jeopardize fed erally listed species. After discussions with the USFWS and NMFS, the USEPA agreed to several changes in the final rule and USFWS and NMFS, in turn, issued a final Biological Opinion finding that USEPA’s action would not likely jeopardize the continued exi stence of federally listed species. The agencies agreed that federally listed fish and wildlife species that are aquatic system foragers would be protected under future criteria and procedures for site

- specific adjustments.

To achieve these goals and as p art of the remedy for these problems, the USEPA initiated an interagency project with the USFWS and the U.S. Geological Survey (USGS) to address issues of 1) a methodology for translation of a tissue guidelines to protective site

- specific dissolved Se

conc entrations (implementation of tissue criteria); 2) inclusion of protection of wildlife species169

(i.e., federally listed species) in regulatory methodologies; and 3) site

- specific criteria development for the Bay

- Delta (USEPA, 1999).

A methodology for ecos ystem

- scale modeling of Se is now available (see Appendices A and B

, Luoma and Presser, 2009; Presser and Luoma, 2010). Analysis from this biodynamically

- based methodology showed, in general, that:

 a crucial factor ultimately defining Se toxicity is the link between dissolved and particulate phases at the base of the food web (i.e., K d );

 collection of particulate material phases and analysis of their Se concentrations are key to representing the dynamics of the system;

 bioaccumulation in invertebrates i s a major source of variability in Se exposure of predators within an ecosystem, although that variability can be explained by invertebrate physiology (i.e., TTF invertebrate );

 TTF fish is relatively constant over the range of species considered here; and

 Se concentrations are at least conserved and usually magnified at every step in a food
web.”

The ecosystem

- scale model developed by Presser and Luoma (2010a & b) reveals the importance of understanding the biodynamics of selenium in aquatic environments t o more accurately predict selenium toxicity. Conventional methods that relate water column selenium concentrations to tissue concentrations using bioaccumulation factors (BAFs), as was used in in the BE, have a high degree of uncertainty (Presser and Luom a, 2010b). We reevaluated the risk assessment for selenium to examine how the analysis might benefit from a more informed,
ecosystem

- scale, approach. We adapted the model used to support criteria development ( Error!

Reference source not found. ) to estimate tissue concentrations (referred to as EC T values in the BE) from concentrations of selenium in water ( Error! Reference source not found. ). For this evaluation we selected parameter estimates (Kd’s and TTFs; Error! Reference source not

found. ) that were developed by Presser and Luoma (2010a) for the San Francisco Bay

- Delta system, as well as, estimates used to represent a hypothetical estuary (Presser and Luoma 2010b). We incorp orated effects estimates for fish and bird reproduction (i.e. larval edema/skeletal defects and hatchability) and survival that were derived by the USFWS and used by Pressor and Luoma (2010a) to predict water concentrations necessary for protecting sensiti ve listed fish and bird species in the San Francisco Bay

- Delta.

Our revaluation indicates that EPAs, BAF

- based, analysis likely underestimates risks of selenium exposure to listed species. As previously mentioned, EPA concluded (based on their original l oading estimates) that risks to listed species from selenium discharged by vessels would be negligible for some taxa and remote for others. In contrast, risk quotients calculated using the
ecosystem

- scale approach ranged from 2.05 to 79.8 ( Error! Reference source not found. ),

indicated that significant effects on reproduction and survival would likely occur. Risk quotients for the alternative exposure scenarios A and B (where fewer vessels are discharging EGS

washwater and the Se effluent concentrations are lower ; USEPA 2012 c ) were substantially lower. However, even at the lower exposures predicted under scenarios A and B some of the170

risk quotients for the San Francisco Bay

- Delta model approached or equaled 1.0 for fish and

exceed ed 1 for birds using our methodology discussed above . These results suggest that selenium from vessel discharges could pose a risk to listed species in the future if the number of vessels utilizing exhaust gas scrubbers increase beyond what is anticipated

.

EPA has agreed to develop and implement a monitoring plan for gas

- scrubber discharges. With technical assistance from the Services, EPA will identify metrics for assessing selenium loadings in waters inhabited by ESA listed species. They will also st ate which analytical methods should be used to accurately measure selenium in saline gas

- scrubber discharges. EPA will also compile NOI and annual report information regarding the number and type of vessels using exhaust gas scrubbers and discharge monito ring data for selenium. And finally, EPA will evaluate vessel data, identify ports/locations where the metric has been exceeded and will, as appropriate, identify and implement additional actions to reduce any unacceptable risk.

Table 29

. Generalized steps in ecosystem

- scale methodology for translation of a tissue Se

concentration to a water

- column Se concentration for protection of fish and aquatic

dependent wildlife. [Adapted from Table 2, Presser and Luoma, 2010a , 2010b ]

Trans lation of Tissue Criterion to Water

- Column Concentration

 Develop a conceptual model of food webs in watershed

.

 Choose toxicity guideline for fish or aquatic bird species in estuary

 Choose fish or bird species to be protected in watershed.

 For fish, cho ose species

- specific TTF fish or use default TTF fish of 1.1: for birds, choose species

- specific TTF bird or use default TTF bird of 2.0.

 Identify appropriate food web(s) for selected fish or bird species based on species

specific diet.

 Choose site

- specific TTF invertebrate for invertebrates in selected food web(s) or use default

TTF invertebrate for species of invertebrates (see list in Presser and Luoma, 2010b).

 Choose site

- specific K d or use K d indicative of a) generalized source of Se and receiving

water c onditions or b) site

- specific hydrologic type and speciation; or a default K d of 1000 (see list in Presser and Luoma, 2010b).

 Solve equation(s) for allowable water

- column concentration for protection of fish or birds (i.e. predator):

If assu me single invertebrate diet, then

• C water = (C predator ) ÷ (TTF predator )(K d )(TTF invertebrate )

If assume a mixed diet of invertebrates, then

• C water = (C predator ) ÷ (TTF predator )(K d )[(TTF invertebrate a )(pre y fraction)]

+ [(TTF invertebrate b ) (prey fraction)] + [(TTF invertebrate c ) (prey fraction)]171

If assume sequential bioaccumulation in longer food webs, then

• C water = (C predator ) ÷ (TTF predator )(K d )(TTF i nvertebrate a ) (TTF forage fish )

• C water = (C predator ) ÷ (TTF predator )(K d )(TTF TL2 invertebrate )(TTF TL3 invertebrate )( TTF TL3 fish )

where TL=trophic level

Table 30

. Equations used to calculate Fish and Bird EC T ’s for the B iological O pinion. [A dapted from Presser and Luoma, 2010a. ]

Translation of Water

- Column Selenium Concentrations to

Tissue Concentrations

Fish EC T = C fish

- clam pathway = (C water )(K d )(TTF clam )(TTF fish )

Fish EC T = C fish

- in vertebrate pathway = (C water )(K d )(TTF invert )(TTF fish )

Bird EC T = C bird

- clam pathway = (C water )(K d )(TTF clam )(TTF bird )

Table 31 1 . K d and TTF values used to calculate fish and bird EC T ’s.

K d and TFF values

San Francisco Bay

- Delta 1 Hypothetical

Estuary 2

K d 5784 3000

TTF invertebrate 2.8 1.3

TTF clam 17.1 6.25

TTF fish 1.1 1.1

TTF bird 2.6 1.8172 1 from Presser and Luoma 2010a, K d value is average of four time periods (Table 17)

2 from Presser and Luoma 2010b, Figure 6D&E.173

Table 32

. Application of the Ecosystem

- scale approach to: a) estimate tissue concentrations of selenium from water concentrations predicted from vessel discharges, and b) calculating risk quotients for sensitive fish and bird specie s (adapted from Presser and Luoma 2010a&b). Risk Quotients (EC T /EC 10 or NEC) Percentage of vessels with EGS 1 Selenium concentration in EGS discharge (ug/L) 1 Max Selenium concentration among RAA Harbors (ug/L) 1

Fish EC T (insect food web) (ug/g dw) Fish EC T (clam food web) (ug/g dw) Bird EC T (clam food web) (ug/g dw) Adult female sturgeon

[EC 10 for larval edema and skeletal defects=8.1ug/g dw] Juvenile salmon [whole body EC10 for mortality = 1.8 ug/g dw] Generic insect - eating fish [whole body NEC=5.0 ug/g dw] Bird (scoter and scaup) egg [EC 10 for hatchability=7.7 ug/g

dw]

San Francisco Bay

- Delta

Original BE

estimate 10 100 2.39 42.6 260.0 614.6 32.1 23.7 8.5 79.8

Revised estimate

Scenario A 1 14.5 0.035 0.6 3.8 9.0 0.5 0.3 0.1 1.2

Revised estimate

Scenario B 1 31.2 0.075 1.3 8.2 19.3 1.0 0.7 0.3 2.5

Hypothetical Estuary

Original BE

estimate 10 100 2.39 10.3 49.3 80.7 6.09 5.70 2.05 10.48

Revised estimate

Scenario A 1 14.5 0.035 0.2 0.7 1.2 0.09 0.08 0.03 0.15174

Revised estimate

Scenario B 1 31.2 0.075 0.3 1.5 2.5 0.19 0.18 0.06 0.33

1 data from USEPA 2012 c (Addendum to the Biological Evaluation)175

Classical Pollutants

Classical pollutants combine several standard water quality parameters such as conductivity, salinity, tempera ture, pH, Biochemical Oxygen Demand (BOD), etc. along with other parameters EPA defined as conventional pollutants such as total suspended solids (TSS) and total residual chlorine (TRC). In its BE, EPA limited its analysis to TRC and TSS. EPA also stated that only those pollutants with toxic effects (i.e., TRC) to aquatic and aquatic

- dependent species lend themselves to analysis of quantitative effects.

Biological Oxygen Demand (BOD)

. BOD is a measure of the oxygen used by microorganisms to oxidize organ ic matter present in water. Bacteria working to decompose organic matter consume oxygen in the process, exerting an oxygen demand in wastewater and receiving waters, thereby depressing dissolved oxygen (DO) concentrations. If there is a large quantity of organic waste in water, there will be substantial demand for oxygen, resulting in a high BOD and the associated potential to depress DO concentrations in receiving waters. As the waste is consumed or dispersed through the water, BOD levels will begin to de cline.

Vessel discharges that exert relatively high oxygen demand include fish hold effluent, bilgewater, deckwash and graywater. BOD levels in these discharges exceed the screening level benchmark for wastewater discharges of 30 mg/L 12 by at least an or der of magnitude. Although BOD is highest in fish hold effluent, averaging 840 mg/L, the net oxygen demand only accounts for less than 3% of a the total organic matter discharge from a fishing vessel. Due to its greater volume, graywater accounts for 90% or more of a vessel’s organic matter discharge even though BOD levels are barely over half that of fish hold effluent, averaging 430 mg/L. Deck washdown and bilge water BOD levels are 430 and 190 mg/L, respectively and account for less than 0

- 6%

of a vess els organic matter discharge, depending on service class. EPA estimated post permit

BOD in the estuarine harbor model averaged 0.16 mg/L and range d from 0.005 to 0.6 8 mg/L, suggesting a 16 to 26 percent reduction in organic material discharged. For the r iver harbor model, EPA's average estimated post permit BOD was 4.17 mg/L and ranged from 0.0459 to 9.11 mg/L, suggesting a 1 to 9 percent reduction in organic material discharged.

The implications of BOD loading on dissolved oxygen in receiving waters w as not evaluated by EPA. However, organic enrichment and oxygen depletion is the fourth most common cause for impairment among 303(d) listed waters. Nearly 4250 waters of the United States are listed with this impairment, with about 550 of them marine en vironments (388 miles of coastline and 3000 square miles of ocean, bays and estuaries). L ow dissolved oxygen alters biological assemblages and the food webs of which they are a part. The oxygen status of water also influences biologically mediated enviro nmental fate processes of pollutants like mercury methylation and metabolism of organic chemicals. While organic loading from the many land based sources are

12 The screening level benchmark for BOD is based on the 1984 secondary treatment limit for publically owned

treatment work s (see 49 FR 37006, Sept. 20, 1984).176

orders of magnitude larger than that from vessels, vessel discharges pose yet another incremental source to those land based loadings. Data are not available to place vessel organic loading in context of consequences for our species. We review the effect of low dissolved oxygen on listed resources and their surrogates to acknowledge the potential ef fects of this discharge constituent

on listed resouces.

Intergravel dissolved oxygen concentrations for survival of embryo and larval salmonids need to be at least 8 mg/L dissolved oxygen, which requires dissolved oxygen levels of 11 mg/L in overlying wat er. Other salmonid lifestages require 8 mg/L in the water column, with impairments to productivity occurring when levels decline to 6 mg/L or lower ( LD and CA

20056 )

. Sturgeon basal metabolism, growth, consumption and survival are all very sensitive to changes in oxygen levels, which may indicate their relatively poor ability to oxyre gulate. Based on bioenergetics and behavioral responses of young of the year juveniles aged 30 to 200 days, productivity losses occurred at oxygen saturation l evel s below 60 percent , which corresponds to 5 mg / liter at 25 o C ( Wirth et al. 2000 ) . Accordingly, dissolved oxygen levels of 5 mg/L and above are also considered protective of sturgeon ( Southworth et al. 2011 )

.

Services Conclusion. Direct linkage of BOD with adverse effects on listed species is complicated by extrapolating the organic loading represented by BOD to actual levels of the proximate stressor, low dissolved oxygen. The VGPs limit discharges into impaired waters, discharges of high BOD waste streams in protected areas, and requires BOD monitoring of graywater in new build vessels. These restricti ons lead FWS to conclude that BOD contributions from vessels compliant with the VGPs are not likely tip the balance between neutral and harmful levels of organic loading to waters where our species occur.

Total R esidual Chlorine (TRC)

. Chlorine gas relea sed into water first dissolves and then undergoes immediate conversion into two forms of free chlorine: hypochlorous acid (HOCl) and the hypochlorite ion (OCl

- ). If the water contains ammonia, the solution will likely also contain

two forms of combined chl orine: monochloramine and dichloramine. Because all four of these forms of chlorine can be toxic to aquatic organisms, the term “total residual chlorine or TRC” is used to refer to the sum of free chlorine and combined chlorine in fresh water. However, bec ause salt water contains bromide, addition of chlorine also produces hypobromous acid (HOBr), hypobromous ion (OBr

- ), and bromamines ( USEP A 2010 ) . These products are referred to as chlorine produced oxidants. T otal residual chlorine was detected in bilgewater, deck washdown, and graywater discharges. Eighty eight to nearly 100% of the total residual chlorine load from vessels is discharged in graywater at concentrations ranging from 13 mg/day from utility vesse ls to nearly 2 kg per day from large Cruise ships ( USEPA 2010 )

.

The post permit TRC concentrations in EPA’s estuarine harbor model averaged 0.1 u g/L and

range d from 0.002 ug/L to 0.000 7 mg/L, suggesting a n a pproximately 2 5 to 70 percent reduction in TRC discharged. For the river harbor model, EPA's average post permit TRC was 0.001 4 mg/L and ranged from 0.0144 ug/L to 0.003 2 mg/L, suggesting a 3 to 15 percent reduction the amount of TRC discharged. These post permit TRC estimates fell below the response thresholds selected by EPA for evaluating risks of exposure to TRC. These thresholds ranged from 3.7 to177

50 mg/L for freshwater organisms and from 7.5 ml/L to 46.5 ml/L for estuarine/marine organisms. The thre shold values EPA selected for freshwater and estuarine/marine vertebrates

and for freshwater vertebrates were derived from NOECs and LOECs. The vertebrate NOECs were 6 ml/L and 40 ml/L for freshwater and estuarine/marine organisms, respectively. The

NOEC for freshwater invertebrates was 2 ug/L.

Services Conclusion. Chlorine is not expected to bioaccumulate in plants or animals since it reacts with the moist tissues of living systems (Compton, 1987; Schreuder and Brewer, 2001; Schmittinger et al., 2006). Also, chlorine is toxic to microbial communities; therefore, biodegradation is not considered to be a relevant fate process (Vetrano, 2001). In general, the hypochlorous acid formed during the dissolution of chlorine in natural waters reacts with organic and inorganic materials, ultimately forming chloride ion, oxidized inorganics, chloramines, trihalomethanes, oxygen, and nitrogen. Consequently, chlorine does not persist in the aquatic environment in the form in which it was discharged. As such listed sp ecies and their critical habitat are not expected to be exposed to total residual chlorine at levels which could cause

adverse effects.

Total Suspended Solids

EPA ’s estimated post permit TSS concentrations in the estuarine harbor model averaged 0.0281

m g/L and ranged from 0.0015 to 0.13 mg/L, suggesting a 35 to 55 percent reduction in TSS discharges. For the river harbor model, EPA's post permit TSS averaged 0.72 mg/L and ranged from 0.00764 to 1.62 mg/L, suggesting a 35 to 40 percent reduction in TSS d ischarge s

. Post permit TSS estimates fell below the response threshold of 3.33 mg/L selected by EPA for evaluating risks of exposure to TSS. This threshold is based on EPAs existing ambient water quality criteria converted into TSS equivalents.

Direc t effects of suspended materials on invertebrates and fish are complex, ranging from behavioral to physiological to toxicological. Suspended sediments have been documented to have a negative effect on the survival of fish, freshwater mussels, and other ben thic organisms. In a frequently cited review paper prepared by Newcombe and Jensen (1996), sublethal effects (e.g. increased respiration rate) were observed in eggs and larvae of salmonids and nonsalmonids, as well as in adult estuarine and freshwater non

- salmonids, when exposed to Total Suspended Solids concentrations as low as 55 mg/L for one hour. Mussels compensate for increased levels of suspended sediment by increasing filtration rates, increasing the proportion of filtered material that is rejected, and increasing the selection efficiency for organic matter. Excess sediment smothers benthic organisms and the surface layer of the benthos can be heavily impacted and altered. Increased turbidity associated with suspended sediments can reduce primary prod uctivity of algae as well as growth and reproduction of submerged vegetation (Jha, 2003). In addition, once in the system, resuspension and deposition can “recycle” sediments so that they exert water column and benthic effects repeatedly over time and in m ultiple locations.

Services Conclusion. A review of effects thresholds described in studies published between 1969 and 2001 supports EPAs conclusion that TSS discharges authorized by the VGPs alone178

would not result in adverse effects ( Rowe et al. 2003 ) . While TSS loading from the many land based sources are orders of magnitude larger than that from vessels, vessel discharges pose yet another incremental source to those land based loadings. The RQ for vessel associat ed TSS loading in freshwater environments is 3 orders of magnitude lower than the threshold for a risk conclusion of “remote” (RQ=0.1). The RQ for eastuarine/marine environments is higher, but still ~ an order of magnitude below the threshold for a risk c onclusion of “remote” (RQ=0.1).

FWS concludes that TSS contributions from vessels are therefore not expected to tip the balance between neutral and harmful levels of TSS in waters where our species occur.

VOCs and SVOCS

The toxicity of oil and grease mea sured as SGT

- HEM to aquatic and aquatic

- dependent animals

is most often attributed to the water

- soluble monocyclic aromatic hydrocarbons or MAHs (benzene, toluene, ethylbenzene, and xylene, otherwise known as BTEX), and the polycyclic aromatic hydrocarbons or PAHs (McGrath and DiToro, 2009). EPA’s study of cruise ship graywater found a total of 17 different volatile and semi

- volatile organic compounds in at least 10 percent of samples, for which the most significant rates and levels of detection were phtha lates, phenol, and tetrachloroethylene. EPA also found elevated pththalates (bis(2

- ethylhexyl)phthalate) in a few bilgewater and stern tube packing gland effluent samples, as well as benzene in bilgewater ( USEPA 2010 )

.

EPA stated that for many of the VOCs and SVOCs, there are no definitive chronic toxicity test data available for aquatic organisms, as well as no data to support selection of response thresholds based on growth or reproduction. FWS concurs wit h EPA regarding the availability of response thresholds for the many VOC and SVOC substances detected in vessel discharges. Those organics for which EPA conducted quantitative analysis include PAH and MAH compounds, b is(2

- ethylhexyl) phthalate and 2,4,6

- t richlorophenol . The MAH compounds like

benzene are low

- molecular

- weight compounds that usually do not persist in the environment because they are volatile and highly biodegradable. Conversely, the PAH compounds (particularly those with four or more carbon rings) are high

- molecular

- weight compounds that are less volatile and degrade more slowly, and thus, persist in the aquatic environment. The services are supplementing EPAs assessment of VOCs and SVOCS to include nonylphenol and octylphenol ethoxylates d ue to the greater toxicity and environmental persistence the degradate nonylphenol (NP).

PAH and MAH. Because MAHs and PAHs are Type I narcotic compounds, the toxicity of these compounds in water (and sediments) is most easily assessed using what is ca lled the target lipid model or TLM (DiToro and McGrath, 2000). Under the TLM, acute and chronic toxicity of MAHs and PAHs to aquatic animals is predicted as single pollutants and as mixtures by calculating the critical body burden in the target lipid of an organism. EPA used the critical body burden of benzo(a)pyene and benzene in lipid to develop its response thresholds against which modeled environmental concentrations would be compared. Under EPA s estuarine harbor

model

, average post permit PAH and MAH concentrations were unchanged for all analytes but benzene, which was reduced between 17 and 53 percent under worst case and best case179

conditions, respectively. For the river harbor model, average post permit PAH and MAH concentrations were unchanged for all but benzene, which was reduced between 6 and 9 percent, depending on scenario.

The TLM guidelines proposed by McGrath and DiToro (2009) are equivalent to a HC5, which is

the hazard concentra tion considered to protect 95% of the tested species

. Thr esholds for individual analytes ranged from 0.286 ug/L for bezo(a)pyrene to 2,433 for benzene ug/L. Average RQs calculated by EPA for individual analytes in modeled estuarine/marine harbors ranged from <0.0001 to about 0.022 while modeled river harbors ra nged from <0.0001 to approximately 0.002. Since these thresholds are all based on the same mechanisms of action, narcosis, EPA summed the individual RQs to estimate the aggregate toxic risk of MAH and PAH using the modeled harbor concentrations. RQs for PAH and MAH ranged from 0.002 to 0.08 in

estuarine/marine scenarios and from <0.0001 to 0.0022 in river scenarios.

PAHs (and to a lesser extent, MAHs) accumulate in tissues of aquatic organisms as well as biomagnify up the food chain, through partitioning and subsequent bioaccumulation in the lipid fraction of organisms. TLM

- calculated critical body burdens, when paired with tissue concentrations predicted by multiplying the maximum toxicant concentration in receiving water with the freely dissolved BAF in prey species, provides the critical body burden in the lipid of prey organisms which serves as a dietary response threshold. EPA chose to include on multiple routes of exposure in the BE, but limited its analysis to potential risks for bioaccumulations t o just benzo(a)pyrene and benzene because: 1) benzo(a)pyrene is the most toxic of the PAHs being considered here, and thus, the most relevant for evaluating risk, and 2) benzene is the only MAH for which a critical lipid body burden exists to support risk evaluation from multiple routes of exposure (as well as exposure via oral ingestion by wildlife). In describing this decision, EPA noted that PAHs are biotransformed and detoxified in organisms, so they generally do not bioaccumulate to particularly high levels. RQs calculated for freshwater vertebrates and

invertebrates based on estimated concentrations accumulated in tissues from continuous exposure to maximum concentrations of benzo(a)pyrene and benzene in ambient receiving waters under post

- permit con ditions were all below 0.01.

Information on the toxicity of hydrocarbons to coral species is extremely limited. A recent review compiled information on molecular mechanisms and effects of pollutants on coral ( Rotchell and Ostrander 2011 ) . The limited amount of information on this species group do not indicate effects at concentrations suggested by EPA’s modeling. Responses ranged from alterations in enzyme ac tivity at 5 ug/L after 1 day exposure to benzo(a) pyrene, an order of magnitude higher than EPA’s HC5 TLM for benzo(a)pyrene 0.28 ug/L. The services were unable to identify information on the effects of PAH and MAH substances on aquatic vegetation.

In ad dition to survival and reproductive effects assessed by EPA, PAHs have been identified as having immunotoxic ( Reynaud and Deschaux 2006

, Bravo et al. 2011 ) and neurodevelopmental ( Danion et al. 2011

, He et al. 2011

, He et al. 2012

, Shi et al. 2012 ) effects in marine and anadromous fish. A recent investigation of PAH implications for threatened and endangered Chinook salmon reporte d m ean PAH concentrations measured in some stomach content samples

from wild caught fish were near the threshold concentration s associated with variability and180

immune dysfunction in juvenile salmonids ( Yanagida et al. 2012 ) . This study demonstrated that dietary PAH exposure, rather than water column concentrations (which ranged from 0.001 to 0.005 ug/L), was the primary source of exposure for juvenile salmonids. Dietary threshold concentrations calculated for pink salmon in EPAs BE were 38.7 and 71.7 mg/kg wet weight for benzo(a)pyrene and benzene, respectively. However, these thresholds were for PAH induced mortality alone and did not take into account other effects which may also lead to mortality, such as effects on immune function. Mortality was 60% after 14 days among Chinook salmon fed

16.5 +/

- 0.1 mg/kg total PAH and ch allenged with Listonella anguillarum . Mortality among vaccinated PAH exposed fish was markedly lower (approximately 16%, read from figure). The PAH exposure mixture which only contained about 0.72% benzo(a)pyrene, was formulated to approximate the actual PAH profile observed in the stomach contents of juvenile wild Chinook ( Palm et al. 2003 ) . Increased spinal curvature rates in ro ckfish embryos occurred after 7 days exposure to ambient concentrations of benzo(a)pyrene as low as 0.126 ug/L. While statistically significant, the difference between controls and embryos exposed to 0.126 ug/ml B(a)P appeared to be less than 5% (read fro m figure). The incidence rate for spinal deformities was 80% at 1.26 ug/L B(a)P ( He et al. 2011 )

.

I nformation regarding PAH and MAH marine turtles is limited to tissue concentrations ( Alam

and Brim 2000

, Camacho et al. 2012 ) and much of the i nfor mation on PAH and MAH for marine

mammals are tissue concentrations ( Hellou et al. 1991

, Fair et al. 2010

, Godard

- Codding et al.

2011 )

. Tissue concen tration information confirms exposure and uptake of PAHs by marine turtles occurs, the ecological implications of such exposures are difficult to interpret. There are

also a few biomarker and in vitro studies for marine mammals. Two investigations establ ish point of effect exposures by identifying DNA adducts or biomarkers of exposure/toxicant

metabolism for marine mammals ( Wilson et al. 2005

, Godard

- Codding et al. 2011 )

. Environmental PAH concentrations and the presence of PAH DNA adducts have been of implicated in the occurrence of cancer within the St. Lawrence population of beluga whale ( Ray

et al. 1991

, Beland et al. 1993

, Martineau et al. 1994 ) . One in vi tro investigation demonstrated cytolotoxic effects of benzo(a) pyrene in cell cultures from Northern Right Whale, with greatest toxicity found for testis. Another investigation exposing harbor seal lymphoma cell lines to benzo(a)pyrene identified genototi c, but not immunotoxic effects ( Frouin et al. 2010 ) . While

data from biomarker and in vitro studies are difficult to interpret in ecological terms, they identify the mechanisms by which pollutants can affect organisms.

Services Conclusion. Both pre and post permit receiving water concentrations are orders of

magn itude below individual toxicant effects thresholds identified by EPA and those thresholds identified through our review of recent literature as was the net PAH

- MAH toxicity for freshwater taxa. The aggregate PAH

- MAH toxicity for saltwater organisms was so mewhat higher, with an RQ of 0.08, approaching the threshold between “remote” and “no effect”. FWS

concludes that PAH

- MAH contributions from vessels are not expected to tip the balance between neutral and harmful levels in waters where our species occur.

2,4,6

- Trichlorophenol.181

EPA post permit 2,4,6

- trichlorophenol in the estuarine harbor model to average 0.0927 ng/L and ranged from 0.00607 to 0. 514 ng/L, suggesting a 48 to 50 percent reduction in 2,4,6

- trichlorophenol discharged. For the river harbor model, EPA's average post permit 2,4,6

- trichlorophenol was 0.00376 ng/L and ranged from 0.0000313 to 0. 00986 ng/L, suggesting a 30 to 67 percent reduction in 2,4,6

- trichlorophenol discharged. Post permit 2,4,6

- trichlorophenol

estimates fell below the re sponse thresholds selected by EPA for evaluating risks of exposure to 2,4,6

- trichlorophenol. These thresholds ranged from 0.46 to 5,923 ug/L for freshwater organisms. The threshold values EPA selected for freshwater vertebrates were derived from a

NOEC a nd LOEC, with the NOECs being 530 ug/L. EPA stated that threshold values were not available for estuarine/marine organisms. After review of the available literature, concurs with EPA’s conclusion. Further, FWS literature searches did not identify inform ation of effects important to our species such as olfaction, immune function or behavior.

Services Conclusion. Both pre and post permit receiving water concentrations are greater than 3 orders of magnitude below toxicant effects thresholds identified by EPA and thresholds below those identified by EPA or for effects not considered by EPA were not found through FWS

literature reviews. FWS concludes that 2,4,6

- trichlorophenol contributions from vessels are not expected to tip the balance between neutral a nd harmful levels in waters where our species occur.

Bis(2

- Ethylhexyl) Phthalate (DEHP)

. EPA estimated post permit DEHP in the estuarine harbor model to average 0.754 n g/ L and range from 0.048 to 4

. 24 n g/L, suggesting a 25 to 61
percent reduction in DEH P discharged. For the river harbor model, EPA's average post permit

DEHP was 0.0839 n g/ L and ranged from 0.000979 to 0.175 n g/L, suggesting a 14 to 58 percent

reduction in DEHP discharged. EPA stated that it was unable to find threshold response data for DEHP useful in evaluating risk to aquatic organisms.

FWS identified several studies evaluating DEHP as an endocrine disruptor. California EPA reviewed these and other studies evaluating more traditional effects ( Carlisle et al. 2009 )

. Response threshold data were reviewed for effects on development and maturation, growth, and reproductive tissue metrics. The concentrati ons at which responses were reported ranged from 0.01 to 10,000 ug/L. The only responses that occurred at concentrations at or below those modeled by EPA for its hypothetical harbors used the standard laboratory species medaka. Mortality rates were highe r and male body weights were lower for adult individuals hatched from eggs exposed to as little as 0.01 ug/L DEHP. Exposure did not affect female body weights or the gonadosomatic index (GSI) of either sex (Chikae et al., 2004a

– after Carlisle et al 2009 ). A later study by the same workers reported declines in female body weights at 0.1, 1.0, and 10.0 μg/L and

reduction of male GSI at 0.01

– 10 ug/L (Chikae et al., 2004b

– after Carlisle et al 2009). Interpretation of the ecological implications of suc h data in the light of conflicting results reported by the same research group leads us to exclude this study from consideration when evaluating EPAs post permit DEHP estimates.

Services Conclusion. FWS concludes that DEHP contributions from vessels are not expected to tip the balance between neutral and harmful levels in waters where our species occur . T he bulk of the response thresholds reviewed in Carlisle et al

. (2009) occurred at concentrations that were orders of magnitude greater than ambient wate r concentrations modeled by EPA ; and conflicting data182

from the same research group were reported for those responses observed at or near EPAs modeled

concentrations.

Nonylphenol and Octylphenol Ethoxylates

. EPAs Report to Congress describes the

environ mental fate and transport of nonylphenol and octylphenol ethoxylates in vessel discharges ( USEPA 2010 ) , yet the BE does not acknowledge this discharge constituent class. T h ese substances are often collectively referred to as nonylphenols and r epresent two distinct subsets of the broader family of alkylphenols that are commonly used in many products such as liquid detergents and soaps. Longer chain nonylphenol and octylphenol ethoxylates degrade to shorter chai ned ethoxylates under aerobic conditions. In general, the shorter the chain, the more hydrophobic, persistent, and toxic the

substance becomes. 4

- Nonylphenol (NP) is a shorter

- chain nonylphenol that has been found in surface water and is toxic to aquatic l ife. NP is formed from the longer chain nonylphenol and octylphenol ethoxylates as they break down. In general, the hydrophobicity, persistence, and toxicity of the substance all increase as the ethoxylate chain becomes shorter. NP accumulates in sediment, occurring at concentrations several orders of magnitude greater in sediment than in water. The

short

- chained isomers may be quite persistent once they are buried in the sediment, and bottom

feeding fish can be significantly exposed to these persistent an d toxic compounds ( USEPA 2010 )

.

EPA’s Report to Congress indicated that there were no analytical results which could be directly compared with EPA's 1.7 ug/L marine acute benchmark for the degradate, NP. Th e Services note that Toxic Equivalency Factors are available for adjusting for NPE mixtures. An alternative to a Toxic Equivalency analysis would be to estimate NP degradate loading equivalents based on moles NP producing substances in vessel discharges.

Toxicity data indicate that some listed species are greater than the proposed correction factor of two more sensitive to these substances than standard test species (e.g., LC50s for atlantic sturgeon is 50 ug/L, shortnose sturgeon and spotfin chub LC50s w ere reported at 80 ug/L (Dwyer et al 2005), Fathead minnow LC50s averaged 290 ug/L and sheepshead minnow averages 460 ug/L in EPAs ECOTOX database). NP is a common adjuvant used in pesticides and was reviewed by NMFS in its Biological Opinion for the EPA

- NMFS consultation on Pesticides Containing Chlorpyrifos, Diazinon, and Malathion ( NMFS 2008 ) . In a review of ECOTOX data in this Biological Opinion, the lo west fish LOEC reported was 0.15 ug/L for fathead minnow reproduction. Numerous fish studies reported LOECs at or below 10 ug/L. Additionally, salmonid prey species are also sensitive to sublethal effects of nonylphenol. The amphipod, Corophium volutato r , grew less and had disrupted sexual differentiation (Brown et al. 1999). Multiple studies with fish indicated that nonylphenol disrupts fish endocrine systems by mimicking the female hormone 17B

- estradiol (Arsenault et al. 2004; Brown and Fairchild 2003 ; Hutchinson et al. 2006; Jardine et al. 2005; Lerner et al. 2007a; Lerner et al. 2007b; Luo et al. 2005; Madsen et al. 2004; McCormick et al. 2005; Segner 2005). NP induced the production of vitellogenin in fish at concentrations ranging from 5

- 100 ug/L (Arukwe and Roe 2008; Hemmer et al. 2002; Ishibashi et al. 2006; Schoenfuss et al. 2008). Vitellogenin is an egg yolk protein produced by mature females in response to 17

- β estradiol, however immature male fish contain the capacity to produce vitellogenin if exposed to estrogenic compounds. As such, vitellogenin is a robust biomarker of exposure. A retrospective analysis of an Atlantic salmon population crash suggested the crash was due to NP applied as an adjuvant in a series of pesticide applications in183

Canada (Brown and Fairchild 2003; Fairchild et al. 1999). Additionally, processes involved in sea water adaptation of salmonid smolts are impaired by NP (Jardine et al. 2005; Lerner et al. 2007a; Lerner et al. 2007b; Luo et al. 2005; Madsen et al. 2004; McCormick et al. 2005).

Services Conclusion. Since graywater discharges primarily contain the NP precursors, there is little concern that direct acute exposures to NP discharge plumes would occur. Additionally EPA proposes to add the following senten ce to the VGP and sVGP fact sheets definition of minimally toxic: “EPA expects that soaps that are “minimally toxic” will contain little to no nonylphenols.” For these reasons, FWS concludes that nonylphenols from vessel discharges are not expected to res ult in harmful levels in waters where our species occur.

Effects of the Proposed Action , Programmatic Approach

In our Programmatic Approach , we examine whether and to what degree EPA has structured the

VGPs , as well as monitoring and compliance, to insure that vessel discharges into waters of the

U .S. are not likely to jeopardize the continued existence of endangered species or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for those spe cies. In this evaluation, we ask whether or to what degree EPA has structured its proposed permit s so that the Agency (1) understands the scope of its action; (2) reliably estimates the physical, chemical, or biotic stressors that are likely to be produce d as a

direct or indirect result of their action; (3) reliably estimates the exposure of ESA listed resources (species and designated critical habitat) to these stressors ; (4) collects and monitors information on authorized activities throughout the life o f the permit; ( 5 ) evaluates the information to assess
how its actions have affected listed resources ; ( 6 ) monitors and enforces permit compliance ; and ( 7 ) modifies its action if new information (including inadequate protection for species or low

levels of compliance) becomes available.

(1) Scope

In this section, we ask whether EPA is aware of the scope of their Action. Section 7 regulations

define an action as “ all activities or programs of any kind authorized, funded, or carried out, in whole or in par t, by Federal agencies in the United States or upon the high seas. ” It defines
effects of the action as the “ direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated o r interdependent with that action, that will be added to the environmental baseline. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.

Interrelated actions are those that ar e part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from

the action u nder consideration. ”

As described earlier, the scope of the action includes all asp ects of EPA’s issuance and impleme ntation of the VGPs, including the monitoring of discharges authorized by the permits184

and enforcement of the permits. The VGPs include several references to monitoring, compliance,

and enforceme nt, all of which will be con ducted by EPA as part of their action. In s ection s 1.4

of the VGP and 4.3 of the sVGP, EPA requires permit compliance and affirms its authority to determine enforcement responses to permit violations including fines, requirements

, and schedules for taking corrective actions. Section 3.1 of the VGP discusses EPA's authority (either an EPA official or official agent acting on EPA's behalf) to determine that effluent limits/water quality standards/pollution control measures/BMPs have not been met and how an applicant can

take corrective actions. Section 4.5 of the sVGP discuss es EPA's authority to inspect any vessel, equipment, practices, or operations regulated under the permit; and to sample or monitor for the

purpose o f assuring permit compliance. It als o discusses EPA’s authorities under Secti on 308 of the Clean Water Act, including its authority to enter

, access, inspect, sample, monitor, and obtain information to verify compliance with the CWA.

In addition to specific references to these activities, through the course of our consultation, EPA has committed to several monitoring, compliance, and enforcement

- related activities, discussed in the relative sections below (see 4, 6, and 7). Therefore, we conclude that EPA is aware of the full scope of its action

.

To reliably estimate the probable individual or cumulative effects to ESA listed species or designated critical habitat, the EPA would need to know or reliably estimate the probable number of discharges that it would authorize under the VGPs. T herefore, w e also ask whether EPA has structured their general permits t o reliably estimate the probable number, location, and timing of discharges that would be authorized by their VGPs. For the VGP, EPA requires a Notice of Intent (NOI) for all vessels gr e ater than or equal to 300 gross tons or with the capacity for 8 cubic meters of ballast water. This NOI must be submitted electronically no later than December 12, 2013 for existing vessels, by date of transfer for resale vessels, and seven days prior to entering waters of the U.S. for new builds. The NOI asks for location information, including homeport, anticipated port visits during the term of the permit, and whether the vessel is engaged in nearshore voyages. The NOI also asks information on the t ypes waste streams that would be discharged (e.g. exhaust gas scrub ber, graywater, ballast water) . The EPA used the

NOI data from the 2008 VGP to estimate the number of discharges that would b e authorized

u nder the VGP. T hey did not estimate the location and timing of discharges, nor did the account for the vessels that do not submit NOIs; for this they should use the annual reports in the future.

The sVGP is a new permit; unlike the VGP , it will not require NOIs or annual reports. Therefore, even after the permit goes into effect, EPA will not know or be able to reliably

estimate the number or location of the vessels authorized to discharge under the sVGP. Instead,

EPA uses (and would continue to use) the U.S. Coast Guard’s MISLE database to search for

vessels that are les s than 79 feet in length, except for recreational and military vessels. They estimate that 115,000 to 138,000 vessels would be eligible for coverage under the sVGP. They do not estimate how many vessels of these vessels are likely b e covered under the sVGP, nor how many vessel owners/operators will consider themselves to be covered under the sVGP or self

- identify (i.e., have the knowledge that they are discharging wastes under a Federal permit)

.

Accurate s elf

- identification is a p roblem among general permits. For example, self

- identification185

by municipal and industrial storm water dischargers was among the metrics evaluated in a study of 136 facilities subject to stormwater General Permit requirements ( Cross & Duke 2008 )

. Among these facilities, approximately 21% were aware that their discharges were subject to the permit even though stormwater permits had been in place over 15 years. The authors suggested that outreach might improve compliance among dischargers. The rates of self

- identification among municipal and industrial storm water dischargers do not necessarily apply to vessels authorized to discharge under the eithe r of the VGPs. In General, the shipping industry is accostumed to regulation and the well

- defined vessel populations and discharges specified under

the VGPs should lead to greater awareness of vessel operator obligations under these permits. An online qu ery for information on the VGPs indicated information sharing activity during and after the VGPs comment period among professional associations, service providers, state and federal agencies within the US and US trading partners

.

Although there is eviden ce that self

- identification rates for the VGPs may be greater than that for other General Permits, EPA has not at this time reliably estimated the actual number, location, and timing of discharges authorized by the sVGP. EPA will conduct an inspection of a random sample of small vessels, useful as a means to extrapolate to the larger population of small vessels, as one way that might address these estimates

. As described below (under the compliance section, number 6 ), one question that will be asked durin g small vessel inspections is whether vessel owners/operators consider their vessels to be authorized under the sVGP and perform actions (e.g., signing a PARI form and quarterly inspections) required of the permit

.

We conclude that EPA is aware of the scope of their Action and has reliably estimate d the probable number of discharges that it would aut horize under the VGP. Though EPA has not reliably estimate d the probable number of discharges that it would authorize under the sVGP, we

believe that their proposed inspection and compliance plan , coupled with other information

sources, will provide data with which to estimate the number of discharges throughout the term of the permit.

(2) Stressors

Here we ask whether the EPA has reliably estimate d the p hysical, chemical or biotic stressors that are likely to be produced as a direct or indirect result of the vessel discharges t hat would be authorized by the V GP s . We also ask whether the EPA would know or be able to reliably

estimate whether those dischar ges have occurred in concentrations, frequencies

, or for durations that violate the terms of the proposed V GP s

.

ANS

In the BE, EPA identifies ANS as one of the greatest threats to biodiversity globally and one of the largest threats to coastal and fresh water ecosystems. They describe invasive species as the second largest threat to endangered species after habitat loss and indicate that some scientists believe the impact of invasive species is greater than that of habitat loss. They identify

commercial shipping as the “ most important means of introducing ANS to coastal environments ” and the “predominant vector for the human transport of invasive species in marine186

environments

. ”

The EPA identifies several mechanisms by which ANS are likely to adversely affect listed resources. These include: outcompeting native species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. They also identify the taxonomic range of possible ANS, dividing the organisms by tho se likely to be transported via ballast water (planktonic, but also benthic organisms) and biofouling organisms.

The EPA does not estimate the concentrations, frequencies

, or durations of discharges carrying ANS. In the BE, EPA suggest s that the lack of species

- specific chronic response data for ANS precludes calculation of a risk quotient to support a quantitative effects analysis. We found several datasets describing actual or potential responses to ANS. In our analyses, we used past

documented ANS i nvasions from a nationwide database to determine that listed resources are likely to be exposed to ANS, but our analyses do not include all ANS invasions and do not represent invasion probabilities. Instead , we agree with the conclusion of the NAS study, which

stat es that “ the data are not sufficient in present form to characterize a biologically meaningful relationship, much less estimate the associated uncertainty, to be able to identify with confidence the invasion probabilities associated with particul ar discharge standards

. ” For this reason , EP A cannot quantify ANS invasion probabilities associated with authorized ballast water discharge

, hull fouling/hull husbandry, and other vessel discharges. Instead, EPA use s a qualitative approach to estimate exp osure (discussed below in section 3).

The EPA has identified ANS as poten tially harmful stressors that are likely to be released into the waters of the U.S. as a direct or indirect result of the vessel discharges that would be authorized by the VGPs. To date, EPA has not been able to reliably estimate whether those discharges have occurred in concentrations, frequencies, or for durations that are consistent with the terms of the proposed VGPs; however, their monitoring and reporting plan, discussed below (section 4) will allow EPA to more reliably estimate the volumes of discharges that are likely to carry ANS and the number of living organisms carried in ballast water

.

Pollutants In their BE, EPA used pollutant data collected for the Report to Congre ss as a primary data

source to characterize the discharges the VGPs will authorize. Th is require d extrapolation from

the sampled 61 vessels and their discharges to the universe of vessels authorized to discharge

under the VGPs. Given that the sVGP author izes discharges from between 115,000 and 139,000 vessels, discharge estimates are based on data from approximately 0.05% of the permitted population. The vessels sampled for the report were commercial fishing vessels and other non

recreational vessels le ss than 79 feet, that is to say, sVGP

- authorized vessels. Vessels described in the Report to Congress volunteered to allow EPA to sample discharges. This “opportunity sampling” approach likely favored participation of operators who were confident that th eir vessel discharges were low impact.

In its report, EPA discussed whether these data could be extrapolated to other vessels, including larger vessels

, such as those authorized to discharge under the VGP. EPA cautioned against extrapolating bilgewater data to vessels not sampled for the Report to Congress (e.g., cruise187

ships, ferries, barges, tankers) because these vessels differ considerably in design, construction, and operation. The BE did use information from a 2008 report on cruise ship discharge s ( USEPA 2008 ) , but this report only provides data for bilgewater volume in these larger vessels, not data on the pollutants present in bilgewater Ultimately EPA characterized VGP bilgewater discharges using bilgewater pollutant data from the Report to Congress and bilgewater volume data from the cruise ship discharges report. In its report to Congress, EPA also cautioned against

ext rapolating deckwash and graywater volume and constituents among vessels because these would differ due to activities conducted on board. For example, fishing vessels and cruise ships would have very different graywater and deckwash characterisitcs. Neve r theless, voluntary discharge data from 61 small vessels were used to characterize discharges from VGP vessels.

EPA considered zinc discharges from cathodic protection sacrificial anodes to be of too low volume and toxicity to be considered in the BE. FW S calculated zinc load using the discharge rate reported in BE Table 3

- 3 and the wetted hull area estimates reported in BE table 3

- 18. These calculations indicate that sacrificial anode discharges can actually make up a substantial portion of the zinc loa d from some vessels. Sacrificial anodes contribute approximately 20% to 80% of the zinc discharged from bar ges, cargo ships and oil tankers at pierside and approximately 50 to 95% of zinc discharges from these vessels while underway. Under worst

case con ditions (i.e. oil tanker anodes), including anode discharges would increase a vessel’s zinc loading five

- fold pierside and 17 fold while underway. Fortunately

, increasing the modeled zinc estimates by 17 fold does not appreciably change the risk conclusio ns of the BE analysis.

While the analyte list examined in the BE was extensive, there were a number of omissions that

should be noted:

 EPA states that mercury was not evaluated because it was not possible to sample away

from sources of metals or source s of airborne mercury such as engines or generators which may contaminate the sample. In stating this, EPA indirectly acknowledges that mercury is a contaminant generated on vessels and that it does not know the relative sources or extent to which mercury is discharged from vessels.

 EPA acknowledges that pharmaceuticals and personal care products (PPCPs) would occur in graywater and sewage mixed with graywater but stated that PPCPs were not analyzed due to a lack of resources. EPA therefore does not k now the types of PPCPs and extent to which they are discharged by vessels.

 While the Report to Congress included data for nonylphenols, EPA did not acknowledge this data in the body of its BE.

Due to data limitations, there are substantial gaps and un certainty in EPA’s analyses which resulted in EPA relying on assumptions to fill these gaps and uncertainties. This results in a reduction of precision in the final risk assessement. Additionally, w hile t he Services acknowledge that uncertainty exists in all risk analyses, the magnitude of uncertainty with EPA’s BE analysis due to the insufficient quantity and quality of data available to characterize authorized discharges is substantial. This further emphasizes the need to monitor discharges to gather a dditional information to more accurately identify stressors and determine which may be188

problematic.

(3) Exposure to potentially harmful impacts

In this section, we ask whether EPA has reliably estimated whether and to what degree listed

resources are li kely to be exposed to potentially harmful impacts of discharges authorized by the

p ermit. EPA identified uncertainties in their effects analysis that could potentially limit the interpretation of results and conclusions. In order to address whether EPA h as demonstrated sufficient knowledge of the exposures resulting from discharges authorized by the VGP, we must first review these uncertainties acknowledged by EPA for the BE’s assessment.

Uncertainties in Exposure Estimates Identified by EPA

The models to represent the estuarine and river water bodies to estimate the exposure concentrations evaluated in the risk analysis all U.S. waters navigable by vessels covered under the VGP and sVGP are simple screening models. EPA acknowledged that the use of suc h screening

- level models is typically limited to identifying major water quality issues and to identify data gaps, not to perform risk analyses as they were used in the BE.

EPA acknowledged that uncertainty was added to the analysis by the extrapolations needed to fill data gaps for the various combinations of vessel types, discharges, pollutants, and vessel populations. These extrapolations were required to develop the pollutant loads used in the modeling analysis. EPA also assumed that the background concentration for all pollutants in the harbor scenarios was zero. Therefore, the model output used to inform the effects analysis does not directly evaluate the potential for vessels to contribute to pollutant impairments or quantify if vessel pollutant l oads serve as the “tipping point” between exceeding and not exceeding a given effect threshold. Rather than assess pollutant load contribution to existing baseline levels in the RAAs it modeled, EPA relied on the magnitude of risk quotients to provide a s ense as to whether incidental vessel discharges covered under the VGP and sVGP would make notable or sizable contributions to existing harbor pollutant levels.

Impacts on a local scale potentially occurring in stagnant side embayments, coves within the

l arger water bodies or occurring as a result of large volume discharges are not addressed in EPAs assessment because screening models assume instantaneous and universal mixing within the modeled harbor. EPA concluded that by using model parameters to bound in the analysis and reflect a “worst case” scenario (e.g., minimum river flow from the nine rivers considered in the analysis), the screening

- level models appropriately characterize the range of potential exposure concentrations and subsequent pollutant ri sk.

EPA believes that the analysis also represents vessel discharges to intracoastal waterways

because s everal of the major water bodies (e.g., Elizabeth River, Charleston Harbor, Biscayne Bay) that are part of the Atlantic and Gulf intracoastal waterway were considered in developing the receiving characteris tics for the estuary model. Even though a significant amount of vessel traffic travels these waters on a daily basis, the daily vessel equiv alent population is assumed to189

be significantly lower in th ese water s than in a harbor environment. EPA acknowledged that listed species present in intracoastal waterways may be directly exposed to a vessel discharge plume, but stated that the exposure duration is expected to be brief such that the chronic effects

thresholds considered in the BE are not of concern.

Alt hough the environmental concent rations calculated for the effects analysis do not specifically account for localized effects, EPA considered the potential risk posed by vessel discharges in

other u nique environments and determined vessel discharges are unlikely a concern. For example, in the case of localized changes in buffering capacity due to climate change, untreated exhaust gas scrubber discharges have the greatest potential to depress pH value s in receiving waters as the discharge can have pH values as low as 3 ( USEPA 2011 c )

. EPA originally re lied

on its economic and benefits analysis for the 2013 VGP and concluded that that a maximum of 5 to 10 percent of affected vessels would install this treatment by the end of the permit period.

EPA has since revised this estimate to reflect far fewer ves sels plying this technology. EPA

assumed that the concurrence of site

- specific changes in buffering capacity with a significant population of vessels discharging exhaust gas scrubber water is highly unlikely to occur. Similar

to the assessment of intraco astal waterways, EPA assumed that any localized effects caused by direct exposure to an exhaust gas scrubber discharge plume would be brief such that risk effects to listed species considered in the BE are not of concern. However, the discharge volume and concentrations of selenium associated with this discharge was identified by the Services as a potential major contributor to existing selenium issues in the San Francisco Bay estuary

.

Lakes and reservoirs isolated from the major rivers navigable by vesse ls covered under the VGP and sVGP represent another unique environment that was not specifically modeled in the EC analysis. EPA believes that the maximum exposure concentrations estimated in the hypothetical

river harbor can be used to inform effects det erminations for species identified in the lake environment. EPA determined that vessel populations operating on lakes and reservoirs are significantly smaller than vessel populations operating in river harbors, and that the vessels also operate (and disch arge) for limited periods of time. Therefore, EPA concluded that the permitted vessel equivalents in lake environments are very likely to be significantly lower than the vessel equivalents estimated in the two river RAAs included in the effects analysis, which would result in lower estimated pollutant concentrations in a lake environment than the maximum exposure concentration calculated for the hypothetical river harbor. Given this assumption, EPA believes that the calculated river EC values and subsequen t risk conclusions for freshwater species adequately capture the potential “worst case” scenario pollutant concentrations and risks in a

lake environment.

Services Assessment of Uncertainty in the Exposure Analysis

In order to determine if EPA’s decision process in evaluating its action has insured against jeopardizing listed species, the Services must evaluate EPA’s acknowledged uncertainties and how they were addressed by EPA along with additional uncertainties identified by the Services.

The Service t ook EPA’s acknowledged uncertainties into consideration while identifying discharges and stressors that posed the greatest risk to listed species. Additional monitoring190

agreed to by EPA is expected to provide mechanisms for identifying unacceptable risks and implementing corrective measures.

Perhaps the greatest source of uncertainty in the effects analysis lies in EPA ’ s ability to predict exposure. EPA identified three major uncertainties in the ir exposure analysis, including: model pollutant load inpu ts reflect the data limitations in available vessel discharge data (discharge flow, discharge concentrations, and vessel populations); model inputs assume no background concentrations of pollutants are present in the receiving water; and the model is not d esigned to evaluate localized impacts or stressors.

Uncertainties regarding EPA ’ s estimation of pollutant loadin gs from vessel discharges arise primarily for the limited amount of data for discharges

, i.e.

, discharge volumes and concentrations of polluta nts in those discharges for different discharge/vessel types. In terms of pollutant concentrations, where sample data were available EPA based their estimates on median values (EPA report to Congress). Predictions based on medians may underestimate the fu ll breath of potential exposures. Data collected as part of the monitoring requirements proposed in VGP and sVGP should improve the quality of information used for EPA’s future analyses. Models used to predict concentrations of pollutants in water assume d no background concentrations in the receiving water. While these predictions may capture pollutant concentrations attributable to vessel discharges

, they likely underestimate actual exposures because other sources of pollution are not considered. In ad dition, the models assume complete mixing throughout the harbor and are not designed to evaluate localized impacts or stressors. Organisms that reside in close proximity to vessels may be exposed to higher pollutant

concentration s . Risks associated with these acute exposures will be dependent on the overlap between species and vessel locations, proximity to discharges , and duration of exposure. Sessile species will likely be most vulnerable to these types of exposures. Because of the scope of the

VGP an d sVGP, EPA evaluate d exposure using Reference Action Area (RAA) harbors. The RAA harbors are expected to represent areas where the greatest numbers of vessels are located.

EPA modeled several different harbor scenarios and based their risk assessment on the maximum predicted pollutant concentration (among all harbor scenarios). The RAA harbor approach and use of maximum predicted pollutant concentrations should help balance the uncertainties mentioned above and reduces the likelihood that pollutant expo sures used in the effects analysis

are underestimated.

ANS

For ballast water, EPA conclude d that its proposed ballast water standards in the VGP are likely

to result in a “very small absolute risk of invasion.” Using the NEMESIS database (with the

cavea ts listed above), w e estimated an annual average of 5.75 documented ANS invasions nationwide that were attributed to ballast water discharge. T he proposed VGP ballast water numeric discharge limitations are likely to reduce the number of ANS invasions ove r time ; however, similar standards are not required of small vessels. W e conclude that there is a small

likelihood that listed resources will be exposed to ANS invasions as a result of ballast water191

discharges authorized by the VGPs.

As with ballast wa ter EPA provided a qualitative analysis, but did not provide a quantitative estimate of exposure of listed resources to hull fouling ANS. We used the NEMESIS database to

estimate an annual average of 13. 5 ANS invasions nationwide that were attributed to h ull fouling. This number represents a minimum number of ANS invasions annually. The VGPs require few anti

- fouling/hull husbandry practices or technologies that are likely to result in substantial changes to biofouling ANS invasion rates. Therefore, ther e is a t least a small

likelihood that listed resources would be exposed to ANS invasions as a result of hull fouling and hull husbandry as authorized by the VGPs.

We conclude that EPA has not reliably estim ated whether, and to what degree, listed resour ces are likely to be exposed to potentially harmful impacts of discharges authorized by the permit. We acknowledge that several, substantial uncertainties prevent or complicate the reliable estimation of exposure to several of these stressors. These uncer tainties emphasize the need for additional monitoring and data collection , as described in the following section.

(4) Monitoring/Feedback

In this section, we ask whether EPA proposes to identify, collect, and analyze information about

its authorized disc harges that may expose listed resources to harmful stressors.

The EPA requires owners/operators to self

- monitor their discharges as one means to identify,

collect

, and analyze information to determine whether vessel discharges into waters of the U.S.

exp ose listed resources to ANS or pollutants at concentrations, durations

, or frequencies that are known or suspected to produce adverse effects . Under requirements of the VGP, permittees are required to monitor and report any unavoidable or unauthorized disc harges

. Without oversight, we expect the rates of disclosure of unauthorized discharges will likely be low

. I t is unclear

whether the required self

- monitoring and self

- reporti ng alone will allow EPA to continually identify, collect and analyze information to accurately characterize exposure or adverse effects. Therefore, EPA will conduct additional assessments of discharges with the greatest potential to adversely affect listed resources. These include: ballast water, bilge water, graywater, copper (from anti

- fouling hull coatings and gas scrubber effluent), selenium (from gas scrubbers

efflu ent), and vessel

- mediated ANS.

Annually, EPA will collect and review information on the ballast water treatment system discharge s thro ugh the electronic submittal of r eports by all vessels using such systems

. All ballast water treatment systems must meet the ballast water numeric discharge limitations, as described in the proposed VGP, which limits the number of biological organisms discharged to

waters of the U.S. In addition, EPA will monitor the follow ing data, submitted annually by vessel owners/operators:

 Monthly indicators of ballast water treatment system functionality

 Results of analytical tests for biological indicators (i.e., total heterotrophic bacteria, E.

coli , and Enterococci ) to ascertain compliance with ballast water numeric discharge

limitations192

 Results of analytical tests for residual biocides and derivatives used in the treatment process (e.g., chlorine dioxide, chlorine, oz one, peracetic acid, and h ydro gen peroxide).

Annually, EPA will collect and review information on treated graywater through the electronic submittal of reports by large and medium

- sized cruise vessels covered under the VGP. Quarterly, cruise ship owners/operators must collect a nd analyze graywater samples for the following constituents: BOD, fecal coliform, suspended solids, pH, total residual chlorine, E.

coli , TP ammonia, nitrate/nitrite, and TKN. They must submit these results to EPA on an annual

basis.

F or new build vessel s ( constructed on or after December 19, 2013) greater than 400 gross tons

that elect to discharge bilgewater int o waters subject to this permit

, vessel owners/operators must collect and analyze a sample of the bilgewater effluent for oil content annually ; they must submit these data electronically to EPA.

Bia nnually, EPA will summarize data from Annual Reports (which include all instances of noncompliance and unavoidable discharges authorized by the VGP) and Discharge Moni toring Reports and provide summar ies to the Services.

For copper, EPA will develop, in cooperation with the Services, and implement a monitoring and reporting plan, within 1 year of finalization of the VGPs. The plan will contain the following

elements:

1) EPA, with the technical assistan ce of the Services, will identify metrics for assessing
copper loadings to waters inhabited by ESA listed species (i.e., using the number of ships
reporting copper hull treatments in eNOIs for particular areas as a proxy).
2) EPA will compile eNOI and annual report information regarding the number and type of
vessels that use copper

- based anti

- fouling hull coating and/or exhaust gas scrubbers, their
home port/most frequented US port, and US ports anticipated visiting during the permit

term. 3) Twice, once by Dece mber 2014 (to summarize eNOI data) and another before EPA
transmits the next draft VGP/sVGP to OMB for interagency review (to evaluate annual
reports in time to make changes for the next permit cycle, if need be), EPA will evaluate
vessel data and identify ports/locations where the metric has been exceeded. If the metric
has been exceeded, EPA will, as appropriate, identify and implement additional actions to
reduce any unacceptable risks.

For potential selenium discharges in exhaust gas

- scrubber discharge s, EPA will develop, in cooperation with the Services, and implement a monitoring and reporting plan, within 1 year of

finalization of the VGPs . The plan will contain the following elements:

1) EPA, with the technical assistance of the Services, will identif y metrics for assessing
selenium loadings to waters inhabited by ESA listed species (i.e., using the number of193

ships reporting exhaust gas scrubbers in eNOIs for particular areas combined with
expected and/or reported volume and concentration values as pro x ies )

. 2) EPA will state that vessel operators should analyze selenium in saline EGS discharges
using methods capable of accurately measuring selenium in saline samples (e.g.,
Octopole Reaction Cell ICP

- MS or Hydride generation AA methods or other methods

whi ch reduce matrix interference for selenium).
3) EPA will compile NOI and annual report information regarding the number and type of
vessels that use exhaust gas scrubbers, discharge monitoring data for pollutants including
selenium and copper, their home port /most frequented US port, and US ports anticipated
visiting during the permit term.
4) Twice, once by December 2014 (to summarize eNOI data) and another before EPA
transmits the next draft VGP/sVGP to OMB for interagency review (to evaluate annual
reports in time to make changes for the next permit cycle, if need be), EPA will evaluate
vessel data and identify ports/locations where the metric has been exceeded. If the metric
has been exceeded, EPA will, as appropriate, identify and implement additional action s to reduce any unacceptable risk.

EPA will do the following regarding vessel

- mediated ANS invasions. Within 1 year of finalization of VGP/sVGP, EPA will develop, in cooperation with the Services, and implement a monitoring and reporting plan for vessel

- mediated ANS invasions . The plan will contain the following elements:

1) EPA, with the technical assistance of the Services, will identify metrics to evaluate
whether vessel mediated ANS invasion rates are being reduced over time.
2) EPA will track information from ANS invasions that might be potentially tied to vessel
vectors. Information tracked may include:

a. Dr. Greg Ruiz (Smithsonian Institution) conducts systematic surveys for ANS
invasions caused by hull

- fouling and ballast water in San Francisco, Chesapea ke, and
Tampa Bays to track changes in the rate of ANS invasions.

b. Nationwide NEMESIS database for all newly documented, marine, ballast water and
hull fouling ANS invasions.
http://inv asions.si.edu/nemesis/browseDB/searchQuery.jsp

c. National USGS NAS database for all newly documented, freshwater, shipping

- related

ANS invasions. http://nas.er.usgs.gov/queries/SpSearch.aspx

EPA and the Services acknowledge that new invasions observed from any of these sources are not necessarily linked to discharges authorized by the VGPs. Nonetheless, over a multi

permit lifespan, tracking invasions, and improving our methodologies and understa nding of

the risk

- release relationship, could provide a long term perspective about ballast water discharge standards, antifouling technologies, and other practices to reduce invasions.194

3) EPA will report to the Services once per year that they have reviewed this information
and whether notable new invasions have been recorded in the previous year that could
have been previously caused by vessel discharges. The Services note that they are
requesting a short review (approximately one hour per year) to ensure E PA continues to
track aquatic bioinvasions. As discussed above, EPA and the Services agree that these observations are being used to inform EPA’s general understanding of continued and
ongoing invasion rates.
4) EPA will identify and implement, as appropriat e, additional actions (e.g., require anti

fouling coatings; require debris containment systems; require more stringent ballast water
standards) as soon as practicable (including in future permit iterations) to ensure the
protection of listed species if nee ded.

The se ANS monitoring methods were chosen to provide an indicator of how invasion rates change over time. For example, researchers at the Smithsonian Environmental Research Center (SERC) 13 ha ve has conducted systematic surveys for non

- native species in San Francisco Bay ( past 12 years) as well as T ampa and Chesapeake Bays (past year). These studies were designed to provide an indicator of how ANS invasion rates change over time as regulations change. D ata analyses include identifying the source locatio n (e.g., South China Sea) of the ANS as well as the vector for the ANS (e.g., ballast water, biofouling, etc.). The databases provide a nationwide repository for newly reported ANS invasions in marine (NEMESIS) and freshw ater (USGS NAS) environments; t hey do not account for changes in effort as above.

The Services spoke with Dr. Greg Ruiz of SERC and Peg Brady, NOAA’s Senior Liaison to the ANS Task Force, to determine whether these methods would be informative and whether they could be used as a gross meas ure of the efficacy of the VGPs. Both agreed that the systematic surveys were a good method to track the effectiveness of the permit. They acknowledged the lag

time for ANS invasions (months to years after introduction) but were confident that the metric would be meaningful within the life of the permit (i.e., 5 years). They also saw the value in establishing base and trend lines in the early years of the permit s and stated it was possible to tailor their data analyses to link invasion rates directly to the VGPs.

As they pertain to ballast water, EPA’s monitoring measures can be compared to USCG’s Ballast Water Rulemaking. Under the VGP, permittees are responsible for self

- inspections and monitoring, and report on them annually. According to EPA, t hose data will be submitted to an electronic reporting tool and database currently in development. EPA plans to make data submitted to the Agency in electronic form available to the public in electronic form. In comparison, the U.S. Coast Guard program includ es mandatory reporting and a system for receiving and archiving report information, and inspections to corroborate report claims (NAS 2011). EPA has noted they have access to all ballast water data submitted to SERC, and EPA plans on sharing its data coll ected with the Coast Guard. For vessels covered under the sVGP,

13 See: http://www.serc.si.edu/labs/marine_invasions/index.aspx195

self

- monitorin g reports are kept on board; though never sent to EPA, these reports could be checked during an inspection.

We conclude that EPA is likely to identify, collect, and analyze impo rtant information about its authorized discharges under its VGP; their ability to collect monitoring data on vessel discharges

authorized under the sVGP is partially dependent on their inspections and other co mpliance assistance activities being developed

, described below (under compliance, section 6) . This monitoring information is essential because it will provide EPA with data needed to reliably estimate stressors and exposure throughout the life of the permit. It will also provide EPA with a

additiona l means to determine the efficacy of its permit in protecting waters of the U.S. and the listed resources that depend upon them (as discu ssed further below, number 7).

(5) Effects on Listed Resources

Here we ask whether EPA has used analytical methodology that considers:

a) the status and trends of endangered or threatened species or designated critical habitat;

b) the demographic and ecological status of populations and individuals of those species given their exposure to pre

- existing stressors in different d rainages and watersheds;

c) the direct and indirect pathways by which endangered or threatened species or designated critical habitat might be exposed to the discharges to waters of the United States; and

d) the physical, physiological, behavior, sociobiologic al, and ecological consequences of exposing endangered or threatened species or designated critical habitat to stressors from discharges at concentrations, intensities, durations, or frequencies that could produce physical, physiological, behavioral, or ec ological responses, given their pre

- existing demogr aphic and ecological condition.

As with uncertainties in its exposure analysis, EPA also identified uncertainties in the response analysis. In section 5.2.6.2 of the BE, EPA provided a comprehensive discus sion of uncertainties associated with the selection of chronic toxicity values. In order to address whether EPA has demonstrated sufficient knowledge of the effects on listed resulting from exposures to discharges authorized by the VGP, we must first revi ew these uncertainties for the BE’s assessment and how EPA addressed them, then evaluate the additional uncertainties identified by the Services.

Uncertainty in Effects Analysis Identified by EPA

EPA acknowledged the uncertainty added to its analysis by the interspecies extrapolations necessary to fill data gaps in response toxicity threshold information for threatened and endangered species. The use of chronic effects data from tests with surrogate species traditionally requires applying data for the c losest taxonomically related species with appropriate data. EPA chose to data for the most sensitive surrogate species rather than the closest taxonomically related species. This decision provides an added measure of conservatism in the196

risk analysis. E PA also assumed that listed species may be uniquely sensitive to pollutants compared to surrogate species. Comparative analysis of the extreme chronic sensitivity of the darter species, Etheostoma fonticola , and the generally

- sensitive surrogate species ra inbow trout, to copper (Besser et al., 2005a) along with comparisons made in a number of related studies by the same group of investigators, suggests that dividing water quality guidelines by a factor of 2.0 may be a reasonable safety factor (e.g., Dwyer e t al. 2005; Gensemer et al. 2007; Mayer et al. 2008).

In addition to uncertainty associated with the use of effects data for standard lab species, there are associated with response to the net toxicity of vessel discharges as mixtures. Organisms are simultaneously exposed to multiple pollutants in their natural environment, yet risk assessment, as a science, still focuses on effects based on exposures to single pollutants. Accordingly, the bulk of EPAs analysis evaluated toxicity on a single stresso r basis. Mixture toxicity is extremely complicated to assess due to the vast number of combinations of pollutants that could be present in a mixture which differ in mechanism of action, biological availability and propensity to interact with coocurring to xicants or water quality characteristics which influence toxicity and bioavailability. To address this uncertainty, EPA applied a concentration addition approach, summing the RQs for pollutants with the same toxicological mechanism of action: metals, which cause oxidative injury of biological tissues ( Stohs and Bagchi 1995 ) , and type 1 narcotics, such as PAHs which induce stupor through altering nerve transmission (U SEPA, 2005; McGrath and DiToro, 2009). In this analysis, EPA summed the RQs for water

- column only exposure based on a mixture of metals or PAHs to give a total RQ representative of the risk of those mixtures to listed aquatic species.

EPA acknowledged i ssues with its use of NOECs (no observable effect concentration)/ LOECs (lowest observable effect concentration)/MATCs (maximum acceptable toxicant concentration), as sources of uncertainty that have the potential to influence the response analysis. EPA described the shortcomings of NOECs/ LOECs/MATCs as follows: “Historically, most chronic toxicity data were evaluated using hypothesis testing to derive a no observed effect concentration (NOEC) and lowest observed effect concentration (LOEC) (and resultan t maximum acceptable toxicant concentration or MATC) from the test concentration series. The resulting values are highly dependent on the test concentrations selected, and the number of replicates at each treatment level. In many cases, the level of protec tion afforded by the NOEC

- LOEC approach is driven more by study design and data precision than ecological significance (see Mount et al., 2003 for more discussion).” EPA did acknowledge that use of point estimates of chronic toxicity, such as the EC 10 or EC 20 , overcome many of the shortcomings of the NOEC

- LOEC approach, but the availability of point estimates associated with chronic effects is limited, and debate continues with regards to the significance to the individual organism (and population) of

an e stimated 10% reduction in chronic response, such as growth.

EPA also asserted that it was correct in not considering sublethal and nontraditional effects when selecting its response thresholds. EPA stated that:197

“As a general rule, the use of alternative endpoints is discouraged unless a compelling argument can be made that inclusion would reduce the overall level of uncertainty in the analysis towards achieving the assessment goal.”

And:
“EPA relies on the 1985 Guidelines data requirements and data sel ection process as the process by which information is fully

- vetted for its utility and applicability in the BE analysis. “

Services Assessment of Uncertainty in the Repose Analysis

EPAs decisions to select the most sensitive surrogate species, assess ris k of metals and PAH mixtures, and perform risk threshold analyses using water quality criteria adjusted by a factor of two to account for potential increased sensitivity of threatened and endangered species are, for this permit , appropriate adjustments for the uncertainties introduced by interspecies extrapolation (except as noted for selenium) . However, EPA did not acknowledge that an adjustment of water quality criteria by a factor of two may also be necessary to account for the greater significance of

e ffects on individuals to the survival of a population when protecting threatened and endangered species.

When selecting its response thresholds, EPA stated that it relies on the 1985 Guidelines data requirements and data selection process. However, the s ervices these guidelines also state:

"For any threshold material, continuous exposure to any combination of concentrations below the
threshold will not cause an unacceptable effect ... However, it is important to note that this is a
threshold of unacceptab le effect, not a threshold of adverse effect. Some adverse effect, possibly
even a small reduction in the survival, growth, or reproduction of a commercially or recreationally
important species, will probably occur at, and possibly even below, the threshol d. The Criterion

Continuous Concentration (CCC) is intended to be a good estimate of this threshold of
unacceptable effect."

What constitutes an unacceptable effect for threatened and endangered species was not addressed in EPA’s guidelines. For some subl ethal effects, such as olfaction, effects may occur at concentrations below which traditional endpoints (survival growth and reproduction) are affected (reference Copper section of the BO). If such responses are not considered when selecting

chronic toxic ity values, the resulting effects analyses my underestimate risk to susceptible species.

The services also have further comment on the ecological relevance of NOECs/LOECs and MATCs. Due to the hypothesis driven selection of response thresholds, the unde rlying “level of effect” associated with NOECs, LOECs, and MATCs may be high. For example, Suter et al. (1987) reported that MATC’s for fish fecundity, on average, corresponded to a 42% level of adverse effect. These shortcomings can be addressed by usin g a regression approach to derive point estimates of chronic toxicity, such as the EC 10.198

In conclusion, the Service evaluated EPAs BE and identified specific discharges (anti

- fouling hull coatings and exhaust gas scrubbers) and pollutants (copper and selen ium) that could pose substantial risks to listed species. Considering the uncertainties described above, EPA, with the technical assistance of the Services, will identify metrics for assessing selenium and copper loadings to waters inhabited by ESA listed species. EPA will evaluate vessel data and identify ports/locations where the metric has been exceeded and, as appropriate, identify and implement additional actions to reduce any unacceptable risk.

ANS According to the BE, EPA considered the individual life history for 612 threatened and endangered species (those identified by EPA to represent all listed species that occur in the action area) to assess exposure and the likelihood of adverse effects from ANS. They anticipate that both permits will “sign ificantly benefit listed species due to the anticipated reduction in potential ANS release from ballast water due to the requirements of the VGP and sVGP.” While we agree that ANS invasions are likely to be reduced as a result of the VGP ballast water

nume ric standards, we do not believe the requirements in the sVGP are as robust

. Furthermore, requirements to minimize or prevent the introduction of ANS through hull fouling , underwater hull husbandry, and other discharges (i.e., chain lockers, sea chests, an d fish holds) are not as well developed this permit cycle

. EPA ’s literature review identifies invasive species introductions as the second greatest threat to biodiversity, and shipping as the greatest source of

ANS introductions to marine and coastal ecosy stems. Our literature review similarly indicates

that ANS introductions have contributed to the endangerment of species. Therefore, there is a high potential for adverse impacts from ANS introductions.

Despite anticipating a reduction in ANS introduction s, EPA does not believe that ANS invasions

will cease as a result of authorized vessel discharges. In light of limited data and uncertainty quantifying the risk of ANS introduction, EPA concluded that ANS introductions as a result of

the ir action “may aff

ect” aquatic species and their cr itical habitat. They concluded that aquatic listed species, including all listed spec ies under FWS ’ authority, may be affected by new vessel

discharge

- related ANS, and thus made a “may affect” determination for these speci es. We agree that the species considered by EPA may be affected by discharges containing ANS that are authorized by their VGPs.

(6) Compliance

Here we ask whether EPA has a mechanism to reliably determine whether and to what degree operators have compli ed with the conditions, restrictions, or mitigation measures required of the

VGPs.

To monitor and insure compliance with its VGP, EPA will , within one year of finalizing the permit, develop and implement a monitoring and compliance plan to assess the per formance of the permit in protecting listed resources. Currently, the U.S. Coast Guard conducts inspections of vessels covered under the VGP using EPA and USCG jointly developed Job Aide, i.e., “Guidelines for Coast Guard Evaluations of Compliance with th e US Environmental Protection199

Agency's (EPA) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels.” To insure that the inspections assess new requirements of the proposed VGP, EPA will:

 W ork with the U

. S

. C oast G uard, wi th the early input of the Services, to update the Job

Aide to reflect requirements included in the new VGP.

 C reate an online training and/or a webinar training regarding the VGP requirements/prohibitions, within one year of final permit issuance.

 Create a comprehensive checklist of requirements for inspector training in conjunction

with the U

. S

. EPA National Enforcement Training Institute

, within one year of final permit issuance.

 Provide and continue to provide the U.S. Coast Guard with the title, offi ce name, current address and phone number for points of contact at headquarters offices and in each EPA Region and USCG District.

In addition, EPA’s Office of Enforcement and Compliance Assurance will meet with the

Services to discuss enforcement under th e VGP. The EPA will gather, review and analyze inspection data submitted by the Coast Guard; the results will be summarized (by type of vessel, location when available, type of deficiencies, and number of deficiencies) and provided to the

Services annuall y

. To monitor and insure compliance with its sVGP, EPA will , within one year of finalizing the permit, develop and implement a monitoring and compliance plan to assess the performance of the permit in protecting listed resources. To insure inspection of a sample of small vessels, EPA

will:

 Organize a meeting with their Office of Enforcement and Compliance Assurance for the Services to discuss and provide input to OECA’s inspection and enforcement plans for

the sVGP.

 W ork with USCG , with the early input of the Services, to update the inspection and

enforcement document inspection checklist (i.e., Job Aide) to reflect sVGP requirements

 Conduct outreach to the states to raise awareness about small vessel requirements; EPA will encourage States to check rec ords of quarterly self

- inspection records and visible portions of the hull while inspecting vessels when implementing their own programs.

 Develop trainings covering the small vessel requirements and share these with the Coast

Guard and States

The EPA wil l provide the Services with a yearly summary of the number of inspections (by EPA, the Coast Guard, States or other sources) and results (including number of inspections by type of vessel, location when available and number and type of deficiencies) based on data

available to EPA

. Unanticipated, low levels of compliance for either the VGP or sVGP would constitute new

information. This information would allow EPA to determine whether reinititation of formal ESA Section 7 consultation would be required as provided in 50 CFR 402.16, as described in the200

Fact Sheets. EPA’s “permit reopener clause” allows EPA to modify its permits, if necessary, during the permit period. The VGP requires that vessel operators inform EPA of instances of noncompliance with the permit terms, including the results of monitoring, in annual reports

submitted to EPA. EPA has partnered with the USCG, and will rely on the USCG ’s VGP inspections. VGP inspection and compliance data will be entered into the USCG MISLE

database. EPA may also partner with States and others who may provide equivalent inspection and compliance data for the sVGP, though these partnerships have not yet been established. The monitoring of compliance EPA ultimately establishes will support their ability to kno w whether discharges by individual permittees have complied with the terms of the proposed VGPs

.

In the sections on the Water Quality

- Based Effluent Limitations, the VGPs include statements that if at any time the permittee becomes aware, or EPA determ ines, that the discharge causes or contributes to an exceedance of applicable water quality standards, the permittee must take corrective action. However, the VGPs do not require monitor ing for such exceedances for the vast majority of the discharges to be authorized , so it is likely that e xceedance s of a water quality

standard w ould infrequently be detected

. As such, it is uncertain whether EPA can know or reliably estimate the physical, chemical or biotic stressors that are likely to be produced as a

dir ect or indirect result of the activities to be authorized by the proposed permit s

.
It is important to note that the first stage of compliance under a general permit, accurate self

identification of discharges requiring coverage under the permit, is a recog nized barrier to permit

effectiveness. Accurate self

- identification of dischargers under municipal and industrial storm water general permits was among the metrics evaluated in a study of 136 facilities subject to the stormwater permit requirements ( Cross & Duke 2008 ) . Among these facilities, approximately 21% were aware that their discharges were subject to the permit and only 10% had completed the first stages of complying with the permit, even though stormwater permits had been in place over 15 years. While the authors suggested that outreach regarding the duty to comply might stimulate greater compliance among dischargers they also noted that co mpliance would still likely be low because among those facilities whose managers were aware of their duty to comply, fewer than half pursued the required actions. The authors attributed the low rate of compliance to penalties that were not sufficiently st rict to motivate compliance.

Issues identified with self

- identification among EPA’s other general permits do not necessarily apply to vessels authorized to discharge under the either of the VGPs due to cultural differences among these regulated communiti es and the well

- defined vessel populations specified under the VGPs. It is important to note that self

- identification for sVGP dischargers is particularly essential to compliance with the sVGP. A query for information on the VGPs demonstrated

information sharing activity during and after the VGPs comment period along with offers of compliance assistance among professional associations, service providers, state and federal agencies within the US and US trading partners. 14 EPA has noted that it has received approximately 50,000 NOIs submitted for the 2008 VGP, roughly how many the Agency201

expected to be submitted. Addtionally, Coast Guard inspectors alert EPA when certain vessels have not completed NOIs or met other self

- reporting and self inspection require ments of the permit. Hence, to date, EPA reported to the Services that they believe the VGP has had high

levels of self

- identification and implementation with the 2008 VGP

.

In the course of consultation, the Services requested existing inspection and com pliance information from EPA. EPA provided a powerpoint illustration identifying a total of 182 deficiencies found in the course of 22,500 inspections conducted by USCG between March and September 2011. EPA indicated that most deficiencies were corrected upon discovery and a total of 10 warning letters were sent out.

To know or be able to determine reliably estimate compliance for dischargers participating in general permits, EPA must have an effective means of oversight. EPA collects information on

N PDES permit compliance through its Permit Compliance System (PCS) and Integrated Compliance Information System

- National Pollutant Discharge Elimination System (ICIS

NPDES) databases. The PCS and ICIS

- NPDES databases track the number of inspections and

e nforcement actions over five years, along with the number of non

- compliance and effluent exceedances over three years. The data are classified for major and minor dischargers. VGP compliance data are not tracked in EPAs databases and compliance inspectio ns are conducted by the USCG which maintains inspection and compliance data in its database. The VGP and sVGP are conceptually analogous to the major and minor discharger classification used for permits

tracked in its databases. While we cannot know in a dvance the compliance rate for the sVGP, the compliance rates of existing general permits, taken in context of reported compliance with the VGP, provide insight.

General Permit Compliance

We downloaded and analyzed EPA’s compliance databases in Septembe r of 2012 15 . The analysis focused on general and individual permits for entities where EPA is the permitting authority. To avoid bias from permits with multiple inspections, we converted the frequency data into presence/absence of inspection, compliance and enforcement events. In this way, each permit was equally weighted in the analysis. All major dischargers under general permits were inspected at least once in the past 5 years. However, among minor dischargers, a much smaller proportion of general permitt ees (51%) were inspected relative to the proportion of individual permittees inspected (88%).

The most common type of inspections for all inspected Permit Groups (i.e., major vs. minor, general vs. individual) are compliance evaluations, followed by sampl ing inspections. No other type of inspection was conducted for major discharges under general permits. Reconnaissance inspections, which serve to “ Expand regulatory presence with limited inspection resources to

15 The PCS was the original tracking mechanism for NPDES permits and currently includes data for 21 states. State by state, the data in PCS is being migrate d into the newer ICIS

- NPDES. The ICIS

- NPDES currently tracks data for the remaining states not represented in PCS, U.S. territories, the Navajo Nation, and the St. Regis Tribe.202

verify basic compliance data ” ( USEPA 1989 ) , we re the third most common type of inspection, but were half as frequent among minor dischargers covered under a general permit (6% of inspections) as under those with an individual permit (12% of inspections). Plan reviews for minor dischargers under a gen eral permit (3% of inspections) were half the frequency of plan reviews for minor dischargers holding individual permits (6% of inspections).

One aspect of enforcement and compliance that demonstrates EPAs ability to identify and correct problems is the role inspections play in detecting permit violations. The analysis revealed an increased rate of permit violations among inspected minor dischargers relative to uninspected minor dischargers holding general permits (violations 16% inspected vs 4% of

unins pected permits). Permit violations for inspected facilities with individual permits were higher than inspected facilities general permits (violations in 59% inspected vs 17% uninspected permits). Recall that among minor dischargers, 88% of those holding individual permits were inspected while only 51% of those holding general permits were inspected. Three violation types appear to contribute to the difference between general and individual permits; reportable noncompliance (35% of permits), effluent viol ations (24% of permits), and compliance schedule violations (10% of permits).

The role of effluent limits in permit compliance rates among minor dischargers.

The difference in the rate of permit violations between minor dischargers holding a general

pe rmit versus those with individual permits appears to be due to the absence of effluent limits among the general permits. Effluent limits require discharge monitoring to ensure compliance with permit requirements and, for impaired waters, load allocation f or individual dischargers. Ninety two percent of the minor dischargers with individual permits have effluent limits while only 54% of general permit holders have effluent limits. Individual permit holders with effluent limits were more likely to report e xceeding their effluent limits (nearly 70%) than submit an incomplete DMR (19%). The opposite is true for general permit holders with effluent limits, which were more likely to submit an incomplete DMR (58%) than report exceeding effluent limits (23%). T aken together, 80% of general permit holders and 88% of individual permit holders either reported effluent limit exceedences or submitted an incomplete DMR. While this suggests a difference in compliance behavior between general and individual permit holde rs, it indicates a similar fundamental compliance rate among minor dischargers with effluent limits, regardless of permit type. This suggests that discharges from permits lacking discharge limits have similar rates of compliance, but are not detected and are therefore not actionable.

The absence of effluent limits in nearly half of EPA’s General Permits eliminates one of EPA’s potential tools for identifying noncompliance, leaving only schedule violations to identify permittee activities which may harm wat er quality. Reanalyzing compliance rates for permits lacking effluent limits leaves 56 individual permits held by minor dischargers and 389 general permits held by minor dischargers. Among the minor dischargers with individual permits, six permits had vi olations, these specifically include; three reportable noncompliance violations, two permit schedule violations, a compliance schedule non

- receipt, and one single event violation. Among the minor dischargers with general permits, two permits had violation s, these specifically include; one reportable noncompliance violations and one permit schedule violation. These data indicate that the absence of effluent limits that is characteristic of general permits likely results in203

substantial numbers of undetected discharges that are not in compliance.

Discharge sampling and analysis required under the VGP is limited to the following subset of discharges; 1) ballast water samples from vessels with ballast water treatment systems, 2) graywater samples from vessels h ousing 10 or more persons and built after December 2013, and 3) exhaust gas scrubber waste water from vessels employing that technology. These represent a relatively small portion of vessels and discharges subject to the VGP. Other terms affect most

vess els covered by the VGPs. These include visual monitoring for oily sheen and restricted discharges within 1 nm of shore or into Waters Federally Protected wholly or in part for Conservation Purposes. Discharge sampling and analysis is not required under t he sVGP.

The role of enforcement in permit compliance.

The severity of a given violation should be reflected by the enforcement action taken. Formal enforcement actions are triggered by the failure to achieve compliance within a specified period

of time under informal enforcement measures or for violations of sufficiently serious nature triggering formal enforcement action with subsequent penalty order or judicial action. 16 Informal

enforcement actions were twice more common than formal enforcement actio ns among general permits for minor dischargers. Minor dischargers under general permits were also less likely to have violations met with any enforcement action as those with individual permits.

The lack of an enforcement action could indicate either re turn to compliance or lapsed enforcement. Using the number of quarters in noncompliance as a surrogate for “return to compliance”, a comparison of permits with violations which were and were not subjected to enforcement action shows that, with the excepti on of minor dischargers with general permits, the number of quarters in noncompliance has no bearing on whether or not facilities are subjected to enforcement. The number of quarters in noncompliance was only a determinant of whether or not a facility is subjected to an enforcement action for minor dischargers with general permits. Those operators receiving an enforcement action had an average of 7 quarters in noncompliance while those with no enforcement averaged 3 quarters in noncompliance. Among both minor and major dischargers with individual permits, the number of quarters in noncompliance was higher (8

- 10 quarters) and had no bearing on enforcement. Major dischargers holding general permits averaged 4 quarters in noncompliance, irrespective of enfo rcement.

The disparity in the average number of quarters in noncompliance among individual and general permits could be due to the differing nature of their discharges and the specificity of the constraints listed within the permits. Individual permittee s are largely wastewater treatment facilities and industrial dischargers releasing effluents with known constituents (more or less) at a predictable rate from discrete point sources. This allows more specific monitoring and reporting requirements within a permit and, as a consequence, a greater probability of detecting a violation of the permit conditions. Additionally, discharges from a point source at a known rate are more easily monitored than the diffuse, episodic discharges typical of general permits.

16 USEPA 1989. The Enforcement Management System: National Pollutant Discharge E limination System, (Clean Water Act).

Office of Water. # PB95

- 156527204

Data from the USCG regarding compliance under the existing VGP indicate high rates of inspection and compliance. Data for the VGP indicated a violation rate of 182 deficiencies among 22,500 inspections (<1%) while 33% percent of major dischargers and 10 % of minor dischargers were found in violation among General Permit holders whose compliance is tracked in EPAs databases. Analysis of EPAs compliance databases does indicate that inspections and effluent limits positively influence detections of permit violations.

(7) Adequacy of Controls

Finally, we ask whether E PA has a mechanism to prevent or minimize listed resources’ exposure to stressors in discharges if (1) EPA finds that these stressors occur at concentrations, durations, or frequencies that ar e potentially harmful to individual listed organisms, populations, or species; or (2) EPA identifies that the discharges lead directly or indirectly to ecological consequences that are potentially harmful to individual listed organisms, populations, specie s or primary constituent elements of designated critical habitat.

In the VGPs, EPA includes a “Permit Reopener Clause.” This clause reiterates in detail the CWA’s regulatory framework that allows EPA to modify its permits or require individual permits i f , for example, new information becomes available or if water quality standards are

exceeded. The VGPs include permit reopener clauses which state that the permits are subject to modification based on the receipt of new information that was not available at the time of permit issuance and would have justified the application of different permit conditions at the time of permit issuance. This new information may include data on ANS invasion rates, information regarding available technologies to minimize AN S invasions, discharge concentrations or volumes, pollutant risks, complianc e or lack thereof, and adverse e ffects to listed resources. This

information would also allow EPA to determine whether to request reinitiation of formal ESA

Section 7 consultation as provided in 50 CFR 402.16 and described in the Fact Sheets.

For the VGP, w ith respect to ballast water discharges, new information that will be considered in determining whether to modify this permit includes, but is not limited to, data or information from permittees, the general public, states, academia, scientific or technical articles or studies, and results of monitoring conducted under this permit indicating that:

• Treatment technology has improved such that these improved technologies would hav e justified the application of significantly more stringent effluent limitations or other permit conditions had they been known at the time of permit issuance;

• Treatment technologies known of at the time of permit issuance perform better than

underst ood at the time of permit issuance such that this improved performance would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance;

• Scient ific understanding of pollutant effects or of invasion biology has evolved such that this new information would have justified the application of significantly more stringent effluent limitations or other permit conditions had this been understood at the time of permit issuance; or

• The cumulative effects of any discharge authorized by the VGP on the environment are205

unacceptable.

As they pertain to ballast water, EPA’s reopener clause can be compared to USCG’s Ballast Water Rulemaking ’s practicality review

. As an NPDES permit, the VGP must be reissued every 5 years. The permit reissuance process is essentially a mandatory periodic review during which the permit’s requirements are evaluated to ensure that they reflect best available technology and

re main sufficiently protective of water quality. At the conclusion of that systematic review, EPA issues a new permit with updated requirements, including, as appropriate, more stringent requirements. Under the VGP, EPA can modify their permit and reinitiat e if “new information”

becomes available that triggers the need

. In comparison, the U.S. Coast Guard program includes

a mandatory review of ballast water numeric standards after three years. The Coast Guard

results from their three

- year review will be av ailable to EPA, and the Agency can determine

whether these results constitute new information.

As described in the Exposure Section, the VGPs require few anti

- fouling/hull husbandry practices or technologies that are likely to result in substantial changes to biofouling ANS

invasion rates. This is partially because developing technologies are not yet widely available.

To ensure the protection of listed species, EPA will identify and implement, as appropriate, additional actions (e.g., require anti

- fouling coatings (AFCs); require debris containment systems; require more stringent ballast water standards) as soon as practicable (including in future permit iterations). Before they transmit the next draft of the VGPs to OMB for interagency review, they will

1) Compile information on new developments in AFCs (to minimize exposure to hull

fouling ANS and copper loading) and debris containment systems (to minimize the
release of ANS and biocides during underwater husbandry).
2) Identify whether there are more efficac ious BMPs or technologies for underwater
husbandry and for anti

- fouling coatings with fewer secondary environmental impacts that
could be required of vessels.

With the technical assistance of the Services, EPA will identify metrics to evaluate whether

vess el mediated ANS invasion rates are being reduced over time . If needed , EPA will, as appropriate, identify and implement additional actions (e.g., require anti

- fouling coatings; require debris containment systems; require more stringent ballast water stand ards) as soon as practicable (including in future permit iterations) to ensure the protection of listed species.

With the technical assistance of the Services, EPA will identify metrics for assessing vessel

related copper loadings to waters inhabited by ES A listed species (i.e., using the number of ships reporting copper hull treatments in eNOIs for particular areas as a proxy). If the metric has been exceeded, EPA will, as appropriate, identify and implement additional actions to reduce any unacceptable r isks.

W ith the technical assistance of the Services, EPA will identify metrics for assessing exhaust gas

scrubber selenium loadings to waters inhabited by ESA listed species (i.e., using the number of ships reporting exhaust gas scrubbers in eNOIs for part icular areas combined with expected206

and/or reported volume and concentration values as prox ies ) . If the metric has been exceeded, EPA will, as appropriate, identify and implement additional actions to reduce any unacceptable

risk.

Aquatic nuisance species, copper, and selenium, are the stressors most likely to reduce individual fitness and population viability for listed species. In addition, ANS are likely to adversely affect the primary constituent elements of designated critical habitat. For vessel dis charges associated

with these stressors , EPA has committed to monitoring metrics, which if exceeded, will trigger additional protective measures. In addition, EPA will monitor, and implement when practicable, new technologies designed to minimize ANS inva sions. Finally, if new information becomes

available that would have justified different permit requirements, EPA may modify their permits

and/or request reinitiation of Section 7 consultation. We conclude that EPA has several mechanisms to prevent or min imize listed resources’ exposure to stressors in discharges.

Cumulative Effects

Cumulative effects include the effects of future state, Tribal, local or private actions that are reasonably certain to occur in the action area considered in this Biological Opinion

. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consulta tion pursuant to Section 7 of the ESA

.
The biological evaluation that EPA submitted to support its request for formal consultation and which is required to discuss cumulative effects (as they are defined for the purposes of section 7 of the ESA) did not identify future State, T ribal, local, or private actions that were reasonably

certain to occur in the action area and that would not require Federal authorization, Federal funding, or the actions of a Federal agency. During this consultation, FWS searched fo r information on future State, T ribal, local or private actions that were reasonably certain to occur

in t he action area. FWS conducted electronic searches of business journals, trade journals and newspapers using First Search

, Google and other electronic search engines. Those searches produced no evidence of future private action in the action area that would not require Federal authorization or funding and is reasonably certain to occur. As a result, FWS is not aware of any actions of this kind that are likely to occur in the action area during the near future.

Integration and Synthesis

The EPA proposes to is sue and implement the Vessel General Permit (VGP) and the Small Vessel General Permit (sVGP), which authorize discharges incidental to the normal operation of

non

- recreational and non

- military vessels into waters of the U.S. The statutory authority for th e proposed action is the National Pollution Discharge Elimination System (NPDES) of the Clean Water Act (33 USC 1342 et seq.; CWA). The VGP was first issued by EPA in 2008; the sVGP207

is a new permit.

The EPA expects that vessels greater than 79 feet in l ength or with 8 cubic meters or more of ballast water capacity will seek coverage under the VGP. V essels less than 79 feet and with less than 8 cubic meters of ballast water capacity may be eligible for coverage under the sVGP, which has less stringent re strictions and fewer reporting requirements. The EPA estimates that approximately 72,000 vessels may be elig ible for coverage under the VGP and approximately 138,000 vessels may be eligible for coverage under the sVGP

.
The action will occur throughout the waters of the U.S., i.e., the action area. The proposed action is likely to likely to adversely affect the species and critical habitats listed in Table 1. This is primarily a function of the potential effects of ANS.

In the Opinion, w e described the status of each species and the environmental baseline

. W e also discussed the effects of the action, i.e., exposure, stressors, response, and risks. Here, w e integrate this information to describe stressors of the greatest concern (i.e., ANS, copper, and selenium) and the likely consequences of exposing listed resources to these stressors.

Aquatic nuisance species (carried in ballast water, on hulls, and in chain lockers, seachests, and fish holds of vessels) may be discharged into waters of the U.S. While ANS are themselves stressors, the mechanisms by which they adversely affect listed resources include: predation, competition, trophic alteration, ecosystem alteration, disease transmission, and genetic introgression. Because of the magnitude of t hese mechanisms, ANS are likely to reduce the fitness (i.e., survival and/or reproduction) of exposed individuals.

F ishes are often threatened by some combination of the four Hs: habitat loss, harvest, hydrology alterations, and for some species, hatcher ies. These species are highly dependent upon waters of the U.S., and thus are sensitive to the introduction of pollutants and ANS

. Invasive species have

been found to prey on juveniles, comp ete for prey resources, alter essential habitat, and transmit

inf ectious diseases . ANS invasions pose a very significant threat because ANS have the potential

to reduce the fitness of a large number of listed individuals through a multitude of mechanisms.

ANS invasions are likely to reduce population and species viabil ity. Invasions are also likely to adversely affect the critical habitat of these species, which includes prey resources as a principle

constituent element. Copper affects chemoreception of fish , reducing their ability to forage, migrate, avoid predators, and find mates. It also impairs their disease resistance, respiration, osmoregulation, blood chemistry, enzyme activity , and internal organ functions. Selenium can reduce reproductive potential in fishes and birds . Therefore, exposure to high concentrati ons of copper and/or selenium is likely to reduce population and species viability.

Threatened and endangered invertebrates have experienced dramatic declines as a result of ecosystem restructuring, overharvest, environmental changes, and disease. Their r eproductive strategies (e.g., broadcast spawning) make them susceptible to detrimental Allee effects at small population sizes. They are especially vulnerable to the introduction ANS invasions which would lower the fitness of individuals through the intro duction of novel pathogens and competition for space and prey

. These mechanisms are likely to affect a large number of individuals through the spread of disease and niche replacement. Therefore, ANS invasions are likely to reduce208

population and species v iability of listed invertebrates. Invasions are also likely to adversely affect the critical habitat of these species, which includes prey resources and suitable substrate as principle con stituent elements. Copper has been shown to reduce the survival and reproduction

of mollusks.

Listed plant species have declined primarily as a result of habitat modification and destruction and altered water quality. Their l imited habitat range provides little resilience to ecosystem or environmental perturbations. Inv asive species are likely to transmit infectious diseases and compete for resources (including space). Disease is likely to spread quickly through the small population and a competitor could easily overgrow native plants with small habitat ranges.

Therefor e, ANS invasions are likely to reduce population and species viability of listed plants.

Our Programmatic Effects Analyses assess whether and to what degree EPA structured the

VGPs , as well as monitoring and compliance, to insure that vessel discharges in to waters of the

U .S. are not likely to jeopardize the continued existence of endangered species or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for those species. We addressed this b y answering seven questions. First, we concluded that EPA understands that the scope of their action includes issuance and implementation of the VGPs, which include s monitoring and compliance . Second, while there were gaps in EPA’s identification of stres sors of the action, EPA will use monitoring programs to fill these gaps in knowledge. Third, EPA was unable to reliably estimate exposure of ESA listed resources to these stressors, but again, they will use monitoring programs to estimate exposure through the life of the permit. Fourth, EPA will collect and monitor information on authorized activities throughout the life of the permit. Fifth, EPA concluded that vessel discharges carrying ANS may affect listed resources. Though EPA initially underestimate d the impact of pollutants on listed resources, they have incorporated new knowledge into their analyses and will continue to monitor pollutants of concern (i.e., copper and selenium). Sixth,

EPA has programs in place for the VGP and is developing a progr am for the sVGP to monitor for compliance; they have the authority to enforce both permits. S eventh, EPA has committed to considering modif

ication of its action if new information (including inadequate protection for species or low levels of compliance) be comes available and reopening the permit is appropriate

. Modifications may include additional actions or requirements, reopening of the permits, and reinitiation of Section 7 consultation. Though this programmatic review gives us confidence in
EPA’s abili ty to insure that vessel discharges into waters of the U .S. are not likely to jeopardize the continued existence of endangered species or threatened species or result in the destruction or

adverse modification of critical habitat that has be en designated f or those species; however, we must address our final area of concern: exposure.

Given exposure to ANS invasions and pollutants, listed resources are likely to be adversely affected, resulting in reduced viability of populations and species. Therefore, it is imperative

that EPA reduce to the extent practicable the exposure of listed resources to vessel

- mediated

ANS invasions and harmful concentrations of pollutants. There is a small likelihood that listed resources would be exposed to ANS or harmful concen trations of pollutants. To reduce this likelihood of exposure even further, EPA will implement the following four

- step feed

- back loop: permit requirements, monitoring and collecting new information , additional actions to reduce209

any unacceptable risks, an d , as appropriate, reopening the permit and/or reinitiati ng consultation to reassess permit requirements

.

First, EPA includes several require ments in their VGPs to reduce the exposure of listed resources to ANS and pollutants, For ANS, EPA requires vessel owners/operators to “ minimize the transport of attached living organisms” into waters of the U.S. For many vessels covered under

the VGP , EPA requires that discharges meet numeric ballast water standards. They require vessel owners/operators to minimize hull husbandry and avoid discharging ballast water in designated critical habitat, when feasible. For pollutants, ANS requires that vessel owners/operators meet technology

- based and water

- quality based effluent limits.

Second, EPA will monitor pollutants and ANS

. To monitor pollutants in VGP discharges, EPA requires and reviews the annual analytical test results for treated ballast water, exhaust gas scrubber effluent, bilgewater (new builds), and graywater (cruise ships). For copper and selenium, EPA wi ll develop and implement a monitoring and reporting plan within one year of the finalization of the VGPs. They will identify metrics for copper and selenium and compile data through NOIs and annual reports. They will review the data twice during the term of the permit to determine whether the metrics have been exceeded. For ANS invasions, they will annually track new vessel

- mediated invasions using nationwide ANS databases; they will also review invasion rates as estimated by systematic surveys of ANS in San Francisco, Tampa, and Chesapeake Bays. To identify improvements in technology designed to minimize the transport of biofouling ANS, EPA will compile information on new developments in AFCs (to minimize exposure to hull

- fouling ANS and copper loading) and debris containment systems (to minimize the release of ANS and biocides during underwater husbandry). They will identify whether there are more efficacious BMPs or technologies for underwater husbandry and for anti

- fouling coatings with fewer secondary environmental impacts that could be required of vessels.

Third, EPA will, if necessary, identify and implement additional actions to reduce any unacceptable risks associated with vessel mediated ANS or pollutants. For example, EPA will , if

necessary, req uire additi onal requirements to minimize the transport of ANS (e.g., anti

- fouling coatings, debris containment systems, or more stringent ballast water standards) as soon as practicable. These additional actions would be designed to further reduce exposur e of listed

resources to ANS and traditional pollutants.

Fourth, EPA will , as appropriate, reopen and modify their permits if they receive new information (including that discussed above) that was not available at the time of permit issuance

and would have justified the application of different permit conditions at the time of permit

issuance. This new information may include data on ANS invasion rates, available technologies to minimize ANS invasions, discharge concentrations or volumes, pollutant risks, c ompliance or lack thereof, and adverse affects to listed resources. This information would also allow EPA to

determine whether to request reinititation of formal ESA Section 7 consultation as provided in 50

CFR 402.16 and described in the Fact Sheets. Ei ther of these actions (reopening the permit or requesting reinitiation of Section 7 consultation) under the fourth step provide s a mechanism for EPA to revise the permit requirements, thus re starting the feedback loop at step one to reduce to the extent pr acticable the exposure of listed resources to vessel

- mediated ANS invasions and210

traditional pollutants

.
To assess and encourage compliance, EPA authorizes and/or conducts vessel inspections. In this endeavor, EPA has created an MOA with the U.S. Coast G uard, which potentially inspects all vessels covered under the VGP on an annual basis. EPA will create and implement a plan to assess the performance of the VGP based on inspect ions of a subset of vessels covered under the

sVGP. The EPA will review annual reports and inspection data to insure that vessel owners/operators are complying with the requirements of the permits. Lower than anticipated compliance levels c ould constitute new information, as described in the fourth step, and provide

a mechanism to reopen/modify the permit or reinitiate Section 7 consultation. In this manner, EPA has the ability to increase compliance through additional requirements to their permits or through additional actions (steps one and three of the feedback mechanism)

.

This four

- step feedback mechanism provides continual monitoring of potential exposure of listed resources to potentially harmful stressors

. If metrics indicate the possibility of exposure to potentially harmful levels of ANS and pollutants, EPA can implement m easure s to reduce these

threats before individuals are exposed

. This iterative process first minimizes the likelihood of exposure; if there is exposure, it minimizes the number of exposed individuals exposed; and if individuals are exposed, it minimizes t he likelihood that an entire population or species will be

affected. In this manner, EPA has insured that their action is not likely to jeopardize the continued existed of any listed species and is not likely to adversely modify or destroy designated crit ical habitat.

Conclusion

After reviewing the current status of the listed species, the environmental baseline for the action area, the potential di rect and indirect effects of EPA’s proposal to issue and implement the VGPs

which would authorize discharges incidental to the normal operation of vessels into waters of the

United States , an examination of the controls EPA proposes to implement to mitigate these effects, and cumulative effects, it is our Biological and Conference Opinion that EPA has insured

th at its action is not likely to jeopardize the continued existence of any listed or proposed species

under FWS ’ jurisdiction

.
After reviewing the current status of the critical habitat that has been designated for endangered and threatened species , the env ironmental baseline of the action area, the potential direct and indirect effects of the action, an examination of the controls EPA proposes to implement to mitigate these effects, and cumulative effects, it is our Biological and Conference Opinion that

EP A has insured that its action is not likely to destroy or adversely modify designated or proposed critical habitat

.211 Incidental Take Statement

Section 9 of the ESA and Federal regulations pursuant to section 4(d) of the ESA prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to: “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” Harm is further defined by FWS to include sig nificant habitat modification or degradation that results in death or injury to ESA listed species by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

Incidental take is defined as take that is incidental t o, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of Section 7(b)(4) and Section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of

this Incidental Take Statement.

Section 7(b)(4) and 7(o)(2) of the Act generally do not apply to listed plant species. However, limited protecton of listed plants from ta ke is provided to the extent that the Act prohibits the removel and reduction to possession of Federally listed endangered plants or the malicious damage of such plants on areas under Federal jurisdiction, or the destruction of endangered plants on non

- Fed eral areas in violation of State law or regulation or in the course of any violation of a State criminal trespass law.

The prohibitions against taking the species found in section 9 of the Act do not apply until the species is listed. However, the Service advises the EPA to consider implementing the following following reasonable and prudent measures. If this conference opinion is adopted as a biological opinion following a listing or designation, these measures, with their implementing terms and

conditio ns, will be non

- discretionary.

Amount or Extent of Take

This programmatic consultation focuses on whether the EPA has insured that their issuance of the general permit is not likely to jeopardize the continued existence of any endangered or threatened spec ies or result in the destruction or adverse modification of critical habitat of such species. It does not address the specific individual actions that the general permit would

authorize. The controls and measures in the general permit s are designed to re duce or in most cases prevent the exposure of endangered or threatened species under FWS ’ jurisdiction to adverse impacts as a result of activities authorized by the general permit s . However, it is possible that such exposures may still take place as a re sult of those activities, and it is possible that these exposures may cause incidental take. As a result, incidental take of endangered or threatened species is possible over the duration of the proposed general permit.

Because of the large scale and broa d scope of the proposed action, even the best scientific and

commercial data available are not sufficient to enable FWS to estimate the specific amount of potential incidental take associated with the action. Therefore, FWS identifies, as a surrogate for the allowable extent of take, the ability of this action to proceed without any adverse incident to212

any species listed in Table 1 that is attributed to any discharge in accordance with the general permit in the range of listed endangered or threatened spec ies under FWS ’ jurisdiction.

An adverse incident is considered attributable to a discharge in accordance with the general permit if a discharge of a pollutant authorized by the general permit is known to, or reasonably presumed to have occurred prior to

, and near or upstream from the adverse incident

, and if the pollutant is detected in local water samples or in tissue samples of affected fish , or

– in the case of aquatic nuisance species

– that adverse incident is directly attributable to the introduction of any aquatic nuisance species known or reasonably presumed to have occurred from discharges authorized by the general permit

.

Reasonable and Prudent Measures

The measures to avoid or minimize take described below are non

- discretionary and must be imple mented by the EPA so that they become a binding condition on any applicant, as appropriate, for the exemption in section 7(o)(2) to apply. The EPA has a continuing duty to regulate the activity covered by this incidental take statement. The protective co verage of section 7(o)(2) may lapse i f the EPA: (1) f ails to assume and implement the terms and

conditions ; or (2) f

ails to require any applicant to adhere to the terms and conditions of the incidental take statement through enforceable terms that are adde d to the general permit. In order to monitor the impact of incidental take, the EPA must report the progress of the action and its impact on the species to FWS as specified in the incidental take statement (50

C FR§402.14(i)(3)).

The EPA shall utilize it s authority to regulate vessel discharges in an adaptive framework by monitoring implementation of the action, its effects, and development of new technologies, and incorporating new control technologies that are developed

, as appropriate, in order to mini mize risk from pollutant exposures and ANS.

Terms and Conditions

To be exempt from the prohibitions of section 9 of the ESA, the EPA must comply with the following condition. This condition implements the reasonable and prudent measure described

above. This term and condition is non

- discretionary.

The EPA shall implement the action as proposed.

Reporting Requirements

Incidents where any listed species under the FWS’s jurisdiction appear injured or killed as a result of discharges into Waters of the United States from discharges authorized by this permit shall be reported by EPA to the U.S. Fish and Wildlife Service, Endangered Species Program

, Chief, Branch of Consultations and HCPs, at ( 703 ) 358

. 2171 . The finder should leave the plant213

or animal al one, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where it is obviously injured or killed by discharge exposure, or some unnatural cause. The finder may be asked to carry out instructions provided by FWS to collect specimens or take other measures to ensure that evidence intrinsi c to the specimen is preserved. This information shou ld be communicated to operators covered by the permit.

Conservation Recommendations

Section 7(a)(1) of the Act directs Federal agencies to utilize their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on ESA listed species or critical habitat, to help implement recovery plans, or to develop infor mation.

The following conservation recommendations would provide information for future consultation involving EPA’s issuance and implementation of VGPs :

1. Review more stringent ballast water, hull fouling, and hull husbandry requirements of

States and other nations to evaluate their practicability for incorporation in future permits

.

2. Begin information ESA Section 7 consultation (“preconsultation”) well in advance of the publishing the draft permits in the Federal Register for public comment. This will

allow EPA to incorporate recommended actions designed to protect listed resources into its permits at an early stage and receive public comment on these actions.

In order to keep FWS informed of actions minimizing or avoiding adverse effects

, or benefiting

ESA listed species or their habitats, the U.S. Environmental Protection Agency should notify the

FWS of any conservation recommendations they implement in their final action.

Reinitiation Notice

This concludes formal consultation on the U.S. Environmental Prot ection Agency’s issuance of

the Vessel Gene ral Permit and the Small Vessel General Permit . As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or

control over the action has been ret ained (or is authorized by law) and if: (1) N ew information reveals effects of the agency action that may affect endangered or threatened species under FWS ’ jurisdiction or to designated critical habitat in a manner or to an extent not c onsidered in this

O pinion; (2) T he agency action is subsequently modified in a manner that causes an effect to the214

ESA listed species or critical habitat not c onsidered in this Opinion; (3) A new species is listed or critical habitat designated that may be affected by the ac tion; or (4) The amount or extent to take specified in the incidental take statement is exceeded. In instances where the amount or extent of take specified in the incidental take statement is exceeded, the U.S. Environmental Protection Agency must immediat ely request reinitiation of Section 7 consultation.

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