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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

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### J U L 3 2012

OFFICE OF WATER

Gary Frazer Assistant Director, Endangered Species United States Fish and Wildlife Service 4401 North Fairfax Drive Arlington, VA 22203

RE: Initiation of Formal Consultation on EPA's Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP) and Small Vessel General Perinit for Discharges Incidental to the Normal Operation of Vessel Less than 79 Feet (sVGP)

Dear Mr. Frazer:

Pursuant to Section 7(a)(2) of the Endangered Species Act (ESA) and the accompanying regulations at 50 CFR § 402.14(c), the U.S. Environmental Protection Agency (EPA) hereby requests the initiation of formal consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) (collectively referred to as "the Services") on the reissuance of EPA's Vessel General Permit (VGP) and issuance of the new Small Vessel General Permit (sVGP), scheduled for November 2012. EPA's biological evaluation (BE) for both permits is attached (Attachment A). The draft VGP and sVGP (Attachments B and C, respectively), if finalized, may be effective for a period of up to five years. Also attached are the accompanying fact sheets for the VGP and sVGP (Attachments D and E), which include detailed information on the rationale for each proposed permit condition in the draft permits.

EPA initiated informal consultation with the Services on the 2013 VGP in December 2011. Informal consultation consisted of briefing you and your staff on the contents of the draft permits, discussing EPA's proposed outline and methodological approach of a BE for both permits, including using a detailed analysis of expected constituents in and impacts from incidental vessel discharges, representative listed species, and reference action areas to inform the broader effects analysis. EPA also requested species lists, additional pertinent information from the Services, and discussed the*permit issuance timeline. We thank you for the insight, cooperation, and time that you and your staff have provided EPA in developing the BE outline and gathering the best data available. A brief discussion of how EPA responded to the Services' specific cornments and requests made during informal consultation on the approach and outline for the biological evaluation is attached (Attachment F).

I am now sending you a formal consultation package with the results of the Agencies' combined efforts, including EPA's BE for the 2013 VGP and sVGP. The BE was prepared using the best scientific and commercial information available for pollutant discharges from vessels

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### proposed to be regulated under the two separate permit actions: the 2013 re-issuance of the VGP

and a new sVGP. This BE is intended to support the initiation of formal consultation, where appropriate. By this letter, EPA is requesting informal concurrence for not likely to adversely affect (NLAA) findings for 80 species. Although EPA believes that incidental vessel discharges are not likely to adversely impact all listed species, in light of limited data and uncertainty regarding Aquatic Nuisance Species (ANS) introductions, EPA is requesting initiation of formal consultation for the remaining 532 aquatic and aquatic dependent species. EPA determined either NLAA or "no effect" for the traditional pollutants (i.e., all pollutants originating frorn vessels except ANS) for all of these same 532 species.

EPA's BE for the 2013 VGP and sVGP, has been substantially updated from a May 2008BE written for EPA's 2008 VGP. These updates reflect the Agency's actions of the 2013 reissuance of the VGP, as well as the new permit action of the proposed sVGP. In addition, this BE uses new information found since completion of the 2008 BE, including new peer reviewed literature, government reports, and other information, and includes revisions that respond to concerns expressed in written comments provided by FWS in their July 22, 2008 letter addressed to James Hanlon, Director of the USEPA Office of Wastewater Management, regarding the May 2008 Draft BE a.nd related correspondence. Additionally, this BE provides a quantitative screening modeling approach for evaluating the impacts of many traditional pollutants contained in the incidental discharges needing detailed analysis.

The sections below provide the necessary information for initiating consultation pursuant to 50 CFR 402.14(c) for both proposed general permits.

I. Descriation of Agency Actions



### The agency actions upon which EPA requests concurrence and formal consultation is the issuance of two National Pollutant Discharge Elimination System (NPDES) permits for discharges incidental to the normal operation of vessels, the VGP and sVGP.

In December 2008 1 , EPA issued the VGP with an expiration date of December 2013. The reissuance of the VGP in 2012 includes improvements to the control measures implemented in the earlier 2008 VGP by making recommended changes and additions based on information gathered during the previous permit action. The updated VGP would continue to regulate the 26 specific discharge categories that were contained in the 2008 permit and, for the first time, manage the discharge of fish hold effluent. A key new provision of the permit is a proposed numeric standard to control the release of non-indigenous invasive species in ballast water discharges. The new ballast water discharge standard addressing invasive species is based upon results from independent EPA Science Advisory Board and National Research Council National Academy of Sciences studies. These limits are generally consistent with those contained in the International Maritime Organization's 2004 Ballast Water Convention and the US Coast Guard ballast water discharge standard rule finalized in March 2012. The new standard is expected to significantly reduce the risk of introduction and establishment of non-indigenous invasive species in U.S. waters.

' Due to a subsequent extension of the vacatur date by the district court, NPDES permits were not required for incidental discharges from VGP vessels until February 6, 2009.

-2-The draft VGP also contains updated conditions for mechanical systems that may leak

lubricants into the water and exliaust gas scrubber washwater, which would reduce the amount of oil and other pollutants that enter U.S. waters from unnaanaged or unmitigated discharges.

The sVGP would be the first permit under the Clean Water Act to address discharges incidental to the normal operation of commercial vessels less than 79 feet in length. Recognizing that small cotnmercial vessels are substantially different in how they operate than their larger counterparts, the draft Small Vessel General Perniit is shorter and simpler. The draft permit specifies best management practices for several broad discharge management categories including fuel management, engine and oil control, solid and liquid maintenance, graywater management, fish hold effluent management and ballast water inanageinent, which includes specific measures to reduce the risk of spreading invasive species. EPA studied relevant discharges frorn vessels less than 79 feet and issued a Report to Congress, entitled "Study ofDischarges Incidental to Normal Operation of Commercial Fishing Vessels and Other NortRecreational Vessels Less Than 79 Feet" in August 2010 (EPA, 2010). That report is available at http://cfpub.epa

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Section 2 of the BE includes more details about both the VGP and sVGP related to the scope of the proposed actions. Additional information about the scope and content of the VGP and sVGP can be found in the proposed VGP and proposed sVGP.

II. Descrintion of Action Area

Based on the scope and nature of the proposed agency actions, the action area for the general permits includes "waters of the United States" as defined in 40 CFR§ 122.2. That provision defines "waters of United States" as certain inland waters and the territorial sea, which extends three miles from shore. 2 Note that the CWA does not require NPDES permits for vessels or other floating craft operating beyond the territorial seas, i.e. in the contiguous zone or ocean. See CWA § 502(12) and 40 CFR § 122.2 (definition of "discharge of a pollutant"). The action area for the proposed federal actions, therefore, does not extend to such waters.

III. Description of Listed Species or Desi:?nated Critical Habitat That May Be Affected

From an initial list of federally-listed species, EPA identified the subset of 612 aquatic and aquatic-dependent species that have more than limited exposure to "waters of the United States". EPA excluded listed species deemed to have only limited exposure to water (i.e., terrestrial species which do not have an important life-stage in aquatic systems and/or do not rely on aquatic systems for a substantial portion of their diet) and determined there would be no effect on these species. See Appendix E of the BE for additional discussion.

EPA evaluated the full list of 612 aquatic and aquatic-dependent species for potential risks from vessel discharge-related ANS in the BE based on a conservative assumption that ANS could theoretically be transported or migrate through multiple pathways and mechanisms from

Z More specifically, CWA section 502(8) defines "territorial seas" as "the belt of the seas measured from the line of the 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."

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### the original site of vessel's discharge. For pollutants and constituents of concerns in; vessel

discharges other than ANS, EPA narr6wed the scope of listed species considered in'the BE to only those species exposed to navigable waters traveled by vessels covered under the VGP and sVGP, because pollutant fate and transport is limited to dispersion and possibly downstream movement and dispersion (species selection methodology described in Appendix E of the BE, Attachment A). In this context, EPA included downstream waters and nearby tidally-influenced waters within the term navigable waters traveled by vessels covered under the VGP,and sVGP. EPA identified 454 of the 612 aquatic and aquatic-dependent listed species for evaluation in the BE for potential impacts from pollutants other than ANS in vessel discharges covered under the VGP and sVGP. See Section 3.4 of the BE, Attachment A for more detailed discussion.

IV. Descriation of IRow Ai;ency Actions May Affect Listed Species or Critical Habitat and Analysis of Cumulative Effects



### A detailed analysis of the direct and indirect effects of ANS and other pollutants in vessel discharges covered under the VGP and sVGP on the 82 aquatic and aquatic-dependent listed species present in the seven RAAs can be found in Section 5 of the BE. EPA used the risk conclusions for the 82 RAA listed species to inform the final effects determinations for a11612 aquatic and aquatic-dependent species to which this BE applies (see Section 7 of the BE, Attachment A). Based on this analysis, EPA concluded that new introductions of ANS from vessel discharges may affect 532 aquatic and aquatic-dependent species. However, EPA believes that the substantial mitigation of ANS from the actions of permit issuance will signxficantly reduce the overall potential risk to listed species, such that many of these species may not be exposed or susceptible to ANS. EPA further believes that given the most recent research on ANS, not likely to adversely affect (NLAA) determinations could reasonably be made for these 532 species as none are likely to face jeopardy due to these permit actions. Nonetheless, based on uncertainties in the science and "a profound lack of data", EPA has concluded "rnay affect". In addition, EPA determined that vessel-related ANS are not likely to adversely affect 80 aquatic-dependent species.

For pollutants other than ANS, EPA concluded that 158 aquatic and aquaticrdependent species will experience no effect as these species are not present in "waters of the United States" navigable by vessels covered under the VGP and sVGP. EPA concluded that traditional pollutants identified for further analysis in the BE are not likely to adversely affect the remaining 454 aquatic and aquatic-dependent listed species. See discussion in Section 7 of the BE, Attachment A for more detailed discussion.

The 2008 VGP and the legislative moratorium on the exclusion of commercial fishing vessels and other non-recreational vessels less than 79 feet both expire on December 18, 2013. As noted earlier, it is EPA's intent to finalize and reissue the VGP and issue the sVGP by November 30, 2012. Given this limited timing, EPA requests that the Services confirm, in writing, that they have received a complete initiation package, and provide an estimate of the date on which the Services will provide EPA with the final biological opinion(s). Should the Services determine that additional data or information is needed to formulate the biological opinion(s), EPA asks that this request be made as soon as possible during the consultation

-4-period. Finally, EPA asks that the Services share drafts of their biological opinions with EPA

prior to finalization.

V. Next Steps

Thank you and your staff for assisting us in this effort. We have prepared this BE to assist in your development of your biological opinion, and have included and referenced the best scientific and commercially data and information available. Additionally, it is also my understanding that we have shared, among other things, our complete dataset collected for our 2010 Report to Congress with your staff in May 2012 to aid in their advance preparation for this formal consultation. I believe that the contents of this package meet the requirements of 50 CFR 402.14(c) for initiation of formal consultation, and therefore, it is my understanding that formal consultation has commenced upon submission of this consultation package, consistent with 50 CFR 402.02. If for some reason, should the Services think additional data or information would be useful for formulating a biological opinion, I would request that the information be developed in the course of formal consultation in light of the November deadline for issuance of the permits.

My staff and I have appreciated the positive, collaborative effort between our agencies that went into this BE and we look forward to continuing that relationship through the formal consultation process. As we have previously discussed, due to the EPA's obligation to issue the VGP by November 30, 2012, it is vitally important that the consultation be completed within the ESA's 135 day time period. I suggest that we briefly discuss this consultation package at our regularly scheduled meeting on July 9, 2012 to talk about the timeline for development of the draft and final biological opinion, including a target date for discussing the Services' preliminary risk or mitigation conclusions. My lead staff assigned to this consultation will follow up shortly after the July 9`" meeting for more detailed discussions with your staff. Again, I request that you share copies of your draft biological opinion when they are available.

Once again, thank you for your assistance and we look forward to working with you on this consultation. Please do not hesitate to call me at (202) 564-1185 or Ryan Albert of my staff at (202) 564-0763 if you or anyone on your staff has questions regarding this matter.

Sincerely,

Deborah agle, Director Water Permits Division

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### Attachments:

A. Biological Evaluation of the 2013 VGP and sVGP B. Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP) C. Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessel Less than 79 Feet (sVGP) D. VGP Fact Sheet E. sVGP Fact Sheet F. EPA Responses to Services' Comments and Requests During Informal Consultation on the Approach and Outline for the Biological Evaluation of the 2013 VGP and sVGP

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