[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Proposed Rules]
[Pages 9709-9714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3861]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-09-0W-2010-0976-FRL-9268-5]
RIN-2009-ZA00


Water Quality Challenges in the San Francisco Bay/Sacramento-San 
Joaquin Delta Estuary

AGENCY: Environmental Protection Agency.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is publishing 
an advance notice of proposed rulemaking (ANPR) to seek comments from 
interested parties on possible EPA actions to address water quality 
conditions affecting aquatic resources in the San Francisco Bay/
Sacramento-San Joaquin Delta Estuary (Bay Delta Estuary) in California. 
EPA is asking the public to consider broadly whether EPA should be 
taking new or different actions under its programs to address recent 
significant declines in multiple aquatic species in the Bay Delta 
Estuary. EPA is not limiting its request to actions that would require 
rulemaking. There may be a range of changes in EPA's activities in the 
Bay Delta Estuary that would be constructive, including enforcement, 
research, revisions to water quality standards, etc. EPA will consider 
all comments before deciding what changes, if any, should be pursued. 
After reviewing the comments and completing its evaluation, EPA will 
provide the results of its review and any proposed next steps to the 
public. This ANPR identifies specific issues on which EPA solicits 
comment, including potential site-specific water quality standards and 
site-specific changes to pesticide regulation. In addition to the 
specific issues on which EPA solicits comments, EPA is interested in 
comments on any other aspects of EPA's programs affecting Bay Delta 
Estuary aquatic resources. This notice contains a summary version of 
the ANPR. Information on accessing the unabridged version is included 
in the SUPPLEMENTARY INFORMATION section below.

DATES: Written comments must be submitted by April 25, 2011.

ADDRESSES: Written comments, identified by docket number EPA-R09-OW-
2010-0976, may be submitted electronically at the Federal Rulemaking 
Portal (http://www.regulations.gov). Hard copy comments should be 
addressed to Erin Foresman, U.S. Environmental Protection Agency, 75 
Hawthorne Street, WTR-3, San Francisco, California 94105. See 
SUPPLEMENTARY INFORMATION for file formats and other information about 
filing.
    Filing Instructions: All comments will be included in the public 
docket without change and will be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. Regulations.gov is an ``anonymous 
access'' system and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send e-mail directly to EPA, your e-mail address will be automatically 
captured and included as part of the public comment. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region 9, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., confidential business information). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with Erin Foresman, [email protected], (916) 557-5253.

FOR FURTHER INFORMATION CONTACT: Erin Foresman at U.S. Environmental 
Protection Agency, Region 9, Water Division, 75 Hawthorne Street, San 
Francisco, California 94105; [email protected], (916) 557-5253.

SUPPLEMENTARY INFORMATION: Detailed information describing the current 
state of Bay Delta Estuary aquatic resources, summaries of scientific 
knowledge regarding Bay Delta Estuary water quality stressors, and 
water quality regulatory and non-regulatory activities in the Bay Delta 
Estuary is contained in the Unabridged ANPR provided on EPA Region 9's 
Web site (http://www.epa.gov/region9/water/watershed/sfbay-delta/index.html) and in the electronic docket available at http://

[[Page 9710]]

www.regulations.gov, docket number EPA-R09-OW-2010-0976. EPA suggests 
reviewing this document prior to submitting comments.
    This ANPR has no regulatory impact or effect. The ANPR contains 
descriptions of certain EPA programs relevant to the Bay Delta Estuary 
and poses questions about how these programs could better protect and 
improve water quality for the benefit of aquatic resources in the Bay 
Delta Estuary. This ANPR marks the beginning of a process to consider 
possible changes to EPA programs in the Bay Delta Estuary.
    If EPA decides to pursue regulatory changes as a result of this 
ANPR, those regulatory changes will be made pursuant to appropriate 
formal rulemaking procedures. If changes to any regulations, rules, 
guidance or statutes are proposed and ultimately made final, to the 
extent such changes would require and/or authorize changes to state or 
tribal water quality standards or other regulations, states or 
authorized tribes would be affected. If changes to state or tribal 
regulations result from any final rule that EPA may promulgate in the 
future, entities subject to compliance with state or tribal regulations 
would also potentially be affected. For example, states and tribes 
authorized to implement the National Pollutant Discharge Elimination 
System (NPDES) Permit Program would need to ensure that permits they 
issue include any limitations on discharges necessary to comply with 
any water quality standards established as a result of any subsequent 
final rulemaking. Therefore, entities discharging pollutants to waters 
of the United States under NPDES could be affected by subsequent 
proposed and final rulemaking.

I. Purpose of This ANPR

    The Bay Delta Estuary is a complex web of waterways, islands, and 
levees at the junction of the San Francisco Bay and the Sacramento and 
San Joaquin Rivers.\1\ The Bay Delta Estuary is the hub of California's 
water distribution system, supplying some or all of the drinking water 
to 25 million people and irrigation water to 4 million acres of 
farmland.
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    \1\ There is no commonly accepted precise geographic definition 
of the Bay Delta Estuary. The ``legal Delta'' is well-defined for 
purposes of the California Delta Protection Commission and related 
California statutes, but is not co-terminous with the functioning 
estuary. This ANPR will generally refer to the larger estuary 
upstream of the San Francisco Bay as the Bay Delta Estuary or the 
Estuary. It will also refer to the Delta, which usually means the 
``legal Delta'' plus Suisun Marsh and Suisun Bay. Occasionally, this 
ANPR may also reference the Bay Delta Estuary watershed, which is a 
huge land area that includes the drainages of the Sacramento and San 
Joaquin River basins.
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    Water quality and aquatic resources in the Bay Delta Estuary are 
under serious stress. All of the waters of the Bay Delta Estuary and 
most of its tributaries are listed as impaired for one or more 
parameters under the federal Clean Water Act.\2\ Populations of many 
formerly abundant open-water (i.e., pelagic) fish species, including 
delta smelt, longfin smelt, and threadfin shad, have collapsed in 
recent decades. Anadromous \3\ fishes, including the winter run chinook 
salmon, have suffered a similar decline. The decline of these aquatic 
resources has generated debate over water resource management in the 
Bay Delta Estuary. Delta interests, including state and federal 
agencies, environmental groups, urban and agricultural water users, 
commercial and recreational fishermen, and others have spent many years 
grappling with Bay Delta Estuary resource issues.
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    \2\ Clean Water Act, 33 U.S.C. 1281-1387 (2006).
    \3\ ``Anadromous'' species are those, such as chinook salmon and 
steelhead, that spend at least some of their life cycle in salt 
water. Usually, these species return to freshwater to spawn.
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    Concerns regarding Bay Delta Estuary water resource management 
increased during the 2009 water year \4\ as water users and resource 
managers struggled with the effects of three years of drought. Water 
export limitations caused by the drought and by restrictions imposed 
under the federal Endangered Species Act (ESA) \5\ to assist struggling 
endangered species significantly reduced the availability of water for 
agricultural and urban uses.\6\ At the same time, the salmon fishery 
was closed on most of the West Coast for a second consecutive year as a 
result of declines in that fishery. Both the agricultural and fishery 
sectors suffered job losses as a result of the drought and the water 
export restrictions.
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    \4\ Water years in California are defined as October 1 through 
the following September 30. For example, the 2011 water year began 
October 1, 2010 and continues through September 30, 2011. Water 
years in California are categorized based on the particular rainfall 
that year. The categories are wet, above normal, below normal, dry, 
and critically dry.
    \5\ Endangered Species Act, 16 U.S.C. 1531-1544 (2006).
    \6\ See Cal. Dep't of Water Res. & Bureau of Reclamation, Water 
Supply Conditions 2009 (Aug., 2009), available at http://www.water.ca.gov/news/newsreleases/2009/08122009martinmilligan2.pdf 
(suggests that approximately a quarter (500 thousand acre feet) of 
the 2.1 million acre feet water export shortfall in 2009 was due to 
new environmental restrictions, whereas three quarters (1.6 million 
acre feet) of the shortfall was due to the drought itself).
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    The federal government responded to this ongoing water management 
crisis with a broad set of actions.\7\ One of those actions was the 
creation of the Federal Bay Delta Leadership Committee, a Cabinet-
level, multi-agency committee charged with coordinating federal 
responses to Bay Delta Estuary issues.\8\ The Federal Bay Delta 
Leadership Committee released its Interim Federal Action Plan for the 
California Bay-Delta (Federal Action Plan) on December 22, 2009, 
outlining the federal government's plan to address the Bay Delta 
Estuary and to work with the State of California to build a sustainable 
water future.\9\ The Federal Action Plan includes actions by EPA to 
``assess the effectiveness of the current regulatory mechanisms 
designed to protect water quality in the Delta and its tributaries, 
including standards for toxics, nutrients, and estuarine habitat 
protection.'' EPA will also evaluate voluntary mechanisms that may be 
used to restore water quality in the Bay Delta Estuary. This ANPR is 
the beginning of this assessment.
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    \7\ See Press Release, U.S. Dep't of the Interior, Secretary 
Salazar, Senior Administration and Congressional Officials Hold Town 
Hall Meeting on California Water Shortage (June 28, 2009), available 
at http://www.doi.gov/news/pressreleases/2009_06_28_release.cfm 
(discussing several water augmentation initiatives).
    \8\ California Bay-Delta Memorandum of Understanding among 
Federal Agencies (Sept. 29, 2009), available at http://www.doi.gov/documents/BayDeltaMOUSigned.pdf.
    \9\ Interim Federal Action Plan for the California Bay-Delta 
(Dec. 22, 2009), available at http://www.doi.gov/documents/CAWaterWorkPlan.pdf.
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    New scientific information about the Bay Delta Estuary and its 
aquatic resources has substantially increased in the past few years. 
This information has been developed and/or reviewed in reports \10\ 
synthesizing information on aquatic resources and water quality by the 
following entities: the State/Federal Interagency Ecological Program 
Pelagic Organism Decline science team,\11\ the State's Delta Vision 
Blue Ribbon Task Force, the Public Policy Institute of California, the 
U.S. Fish and Wildlife Service and National Marine Fisheries Service as 
part of their biological opinions and associated independent science 
reviews, the California State Water Resources Control Board (State 
Board) and the Central Valley Regional Water Quality Control Board 
(Central Valley RWQCB).\12\ Most of these studies and reports involve 
resources protected

[[Page 9711]]

under the Clean Water Act and other EPA programs.
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    \10\ Citations to these many reports and reviews are provided in 
the Unabridged ANPR, as each issue is discussed in detail.
    \11\ Randall Baxter, et al., Pelagic Organism Decline Progress 
Report: 2010 Synthesis of Results (2010), available at http://www.water.ca.gov/iep/docs/FinalPOD2010Workplan12610.pdf.
    \12\ The State Board, Central Valley RWQCB, and San Francisco 
Regional Water Quality Control Board (San Francisco RWQCB) will 
sometimes be referred to collectively as the ``Water Boards.''
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    EPA is using this ANPR to solicit and synthesize existing 
scientific information regarding the biological, chemical, and physical 
integrity of the Bay Delta Estuary's aquatic resources. EPA will 
comprehensively review this information as it evaluates its statutory 
and regulatory options in the Bay Delta Estuary and will develop an 
appropriate response. Specifically, the purposes of this ANPR are:
    (1) To review the current status of the EPA and Water Boards' \13\ 
responses to adverse water quality conditions that have been identified 
as potential contributors to the Bay Delta Estuary's aquatic resources 
decline;
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    \13\ Much of EPA's statutory mandate is to perform oversight and 
review of state water quality agency activities.
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    (2) To determine how best to implement existing programs under the 
Clean Water Act and the Federal Insecticide, Fungicide and Rodenticide 
Act \14\ to improve Bay Delta Estuary water quality for aquatic 
resources;
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    \14\ Federal Insecticide, Fungicide and Rodenticide Act, 7 
U.S.C. 136-136y (2006).
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    (3) To identify barriers, either programmatic or statutory, to 
improving Bay Delta Estuary water quality;
    (4) To identify any additional scientific information regarding 
water quality related to aquatic resources in the Bay Delta Estuary; 
and
    (5) To solicit input on whether EPA should be taking new or 
different actions under its programs to address aquatic resource 
problems in the Bay Delta Estuary.
    Specific topics on which EPA is requesting comments appear in the 
sections below.

Related Efforts in the Bay Delta Estuary

    There are several major efforts underway to address Bay Delta 
Estuary resources, including the regulatory programs of the Water 
Boards under state and federal water quality statutes. In July 2008, 
the Water Boards adopted a Strategic Workplan to coordinate and guide 
their Bay Delta Estuary activities.\15\ Over the next several years, 
these state activities will include, among others, multiple point 
source permit renewals, new pollutant and flow standards for the 
southern Delta and lower San Joaquin River, and Total Maximum Daily 
Loads (TMDLs) for pesticides in the Central Valley. EPA continues to 
support many of the elements in the State's Workplan through technical 
and financial assistance.
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    \15\ State Water Res. Control Bd., Cent. Valley Water Bd., & San 
Francisco Bay Water Bd., Strategic Workplan for Activities in the 
San Francisco Bay/Sacramento-San Joaquin Delta Estuary (2008), 
available at http://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/strategic_plan/docs/baydelta_workplan_final.pdf.
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    Any EPA action taken as a result of this ANPR will complement the 
Water Boards' actions, as EPA's priority is to support and augment 
these efforts. As these efforts unfold, EPA will monitor their progress 
and determine whether additional actions, consistent with its statutory 
authorities and responsibilities, are needed to ensure that the 
requirements of the Clean Water Act are satisfied. Finally, regardless 
of whether EPA pursues any new actions as a result of this ANPR, EPA 
believes the information gathered through the ANPR process may provide 
a factual basis for EPA's ongoing activities under the Clean Water Act, 
the National Environmental Policy Act,\16\ and other federal statutes 
in the Bay Delta Estuary.
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    \16\ National Environmental Policy Act, 42 U.S.C. 4321-4370f 
(2006).
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    There are other federal and state water resource planning efforts 
underway in the Bay Delta Estuary. Stakeholders and relevant government 
agencies are engaged in developing the Bay Delta Conservation Plan 
(BDCP) under the federal Endangered Species Act and the California 
Natural Community Conservation Plan Act.\17\ The BDCP focuses on the 
recovery of ESA-listed species and their habitat in the Bay Delta 
Estuary and is expected to include major proposals for changing how 
water is diverted and conveyed through the Bay Delta Estuary to the 
state and federal water export facilities in the south Delta.\18\ The 
EPA's responsibilities under the Clean Water Act to protect designated 
uses, such as estuarine habitat, fish migration, and threatened and 
endangered species, overlap with ESA requirements being addressed in 
the BDCP. Some actions taken pursuant to the BDCP will need to comply 
with both the ESA and Clean Water Act. To that end, EPA will ensure 
that any action it might take as a result of this ANPR will be closely 
coordinated with other federal and state actions related to the BDCP, 
any biological opinions on water operations affecting the Bay Delta 
Estuary, and any other actions requiring ESA compliance.
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    \17\ Natural Community Conservation Plan Act, Cal. Fish & Game 
Code Sec.  2800-2835 (2003).
    \18\ Although the scope of the BDCP covers at least nine listed 
aquatic species and a geographic area of over one-half million 
acres, the BDCP is not intended to be a comprehensive Delta recovery 
plan. By its own terms, it is intended to meet ESA requirements by 
addressing only the operations of the state and federal water export 
projects and their impacts on listed species and their habitat.
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    In addition, recent state legislation has established the Delta 
Stewardship Council (DSC), an independent state agency charged with 
developing a comprehensive resource management plan, the Delta Plan, by 
January 2012.\19\ The Delta Plan is intended to guide state and local 
agencies to help achieve the state's coequal goals of a reliable water 
supply and a restored Delta ecosystem. To inform the Delta Plan, the 
DSC's Independent Science Board will evaluate the multiple stressors in 
the Bay Delta Estuary.\20\ Any EPA action taken as a result of this 
ANPR will also be coordinated with this and other related efforts.
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    \19\ Cal. Water Code Sec.  85300-85350 (2010).
    \20\ Letter from Delta Independent Science Board to Phil 
Isenberg, Chair, Delta Stewardship Council (Jan. 26, 2011), 
available at http://www.deltacouncil.ca.gov/delta_science_program/pdf/isb/d-isb_20110126_stressor_short_memo_final.pdf.
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    The National Academy of Sciences (NAS) has initiated a review of 
some aspects of the science supporting ESA protections in the Bay Delta 
Estuary. Much of that scientific information is also relevant to Clean 
Water Act programs. Accordingly, EPA is coordinating with the NAS to 
assure that scientific evaluations serve the multiple regulatory 
programs in the Bay Delta Estuary.

Scope of This ANPR

    This ANPR is focused on the most significant water quality factors 
adversely affecting aquatic species designated uses in the Bay Delta 
Estuary. Aquatic species, specifically the salmonids and pelagic 
species suffering significant population collapse during the last 
decade, brought the Bay Delta Estuary's water resource management 
issues into sharp focus in recent years. EPA recognizes that the Bay 
Delta Estuary supports over 750 species of fish, mammals, birds, 
reptiles, amphibians, invertebrates, and plants, and that forty or more 
of these species are listed under state and/or federal endangered 
species laws.\21\ This ANPR is focused on aquatic species designated 
uses for waterbodies in the Bay Delta Estuary, but welcomes comment on 
how

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other species are being affected by water quality.
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    \21\ Delta Vision Blue Ribbon Task Force, Delta Vision Strategic 
Plan (Oct. 2008), available at http://deltavision.ca.gov/StrategicPlanningProcess/StaffDraft/Delta_Vision_Strategic_Plan_standard_resolution.pdf; Estimate of federal and state endangered 
and threatened species based on discussion with U.S. Fish & Wildlife 
Service biologists; Bay Delta Conservation Plan, Steering Committee 
Working Draft (Nov. 18, 2010), available at http://baydeltaconservationplan.com/Libraries/Whats_in_Plan/draft_BDCPreport_11292010_ClickableLinks7.pdf; CALFED Bay Delta Program, 
Multi-Species Conservation Strategy, Final Programmatic EIS (July 7, 
2000), available at http://dfg.ca.gov/erp/envcomp_mscs.asp.
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    This ANPR does not comprehensively discuss water quality issues 
related to other designated uses, including drinking water, recreation, 
fish consumption, agriculture, etc. For example, water contact has been 
restricted in certain Bay Delta Estuary waters due to toxic blue-green 
algae blooms. EPA acknowledges the ongoing need to address these other 
issues.

II. Program Areas for Public Comment

    In this ANPR, EPA is asking the public to consider broadly whether 
EPA should take new or different actions under its programs to address 
problems in the Bay Delta Estuary. EPA is not limiting its request to 
actions that would require actual rulemaking; there may be a range of 
changes in EPA's activities in the Bay Delta Estuary that would be 
constructive, including enforcement, research, revisions to water 
quality standards, etc. Any change in EPA activities would be dependent 
on existing authority and the availability of existing or new 
resources. Any changes requiring EPA rulemaking would provide for 
public comment through the notice and comment rulemaking process.
    A substantial amount of research was performed and evaluated in 
connection with the scientific review of the pelagic organism decline. 
As noted above, that process identified a number of potential stressors 
affecting the Bay Delta Estuary aquatic ecosystem. Many of those 
potential stressors are directly or indirectly affected by the EPA 
programs described above. EPA has identified certain topics for more 
focused consideration in this ANPR. These are:

--Ammonia
--Selenium
--Pesticides
--Contaminants of Emerging Concern
--Estuarine Habitat
--Fish Migration Corridors
--Wetlands

    EPA has not made any attempt to rank these topics as to their 
importance in resolving Bay Delta Estuary issues.\22\ EPA's preliminary 
evaluation suggests that each of these topics, if addressed, could 
contribute to a resolution of Bay Delta Estuary resource conflicts. 
While this ANPR discusses these topics separately, EPA is mindful that 
the more significant concern is the cumulative and interactive effects 
of multiple stressors on the Bay Delta Estuary's aquatic inhabitants. 
Commenters may also identify additional topics that impact Bay Delta 
Estuary resource management, if EPA has some programmatic involvement 
in the topic.
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    \22\ The National Research Council panel currently evaluating 
several Bay Delta Estuary science issues may be ``ranking'' factors 
associated with the decline of ESA listed species and other at-risk 
species. That ranking and the associated report is not due until 
2011. Similarly, the Delta Independent Science Board has initiated a 
process to evaluate and rank the relative importance of multiple 
stressors and, especially, to consider the interactive effects of 
these multiple stressors. See Delta Stressors Workshop, Meeting 
Notice (Dec. 30, 2010), available at http://www.deltacouncil.ca.gov/delta_science_program/pdf/isb/d-isb_2011_01_workshop_stressors_mtg_notice_122810.pdf.
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    Many activities discussed in this notice have been or are now the 
subject of a formal or informal rulemaking process conducted by either 
EPA or a related state or federal agency. Nothing in this notice is 
intended to supersede those ongoing processes, nor does this notice 
constitute a decision under any of those processes. If commenters have 
submitted material in connection with those other processes that is 
believed to be relevant to the issues raised in this notice, the 
commenter may either reference the earlier submission (if it was 
submitted to EPA), attach the earlier submission (if it was submitted 
to a different agency), or, if appropriate, provide a link to the 
material online. Please provide the reason(s) for answers to the 
following questions and scientific, policy, and/or legal information 
with citations that support your comments.

A. Contaminants

1. Contaminants--General
    a. Are there contaminants, other than those named above, causing 
adverse impacts to aquatic resource designated uses in the Bay Delta 
Estuary and that should receive more focused review?
    b. How can pollutant-specific water quality criteria effectively 
address or incorporate interactive effects between multiple 
contaminants and other physical, chemical, and biological stressors?
    c. What methods can be used in developing and implementing TMDLs to 
effectively address or incorporate interactive effects between multiple 
contaminants and other physical, chemical, and biological stressors on 
individual water bodies or for water bodies within a watershed?
    d. What information exists about how climate change impacts will 
affect contaminant pollution (generally or for individual 
contaminants)?
2. Ammonia: Toxic and Nutrient Effects
    a. What, if any, information is available on the sources or impacts 
of total ammonia nitrogen in the Bay Delta Estuary that is not 
reflected or cited above?
    b. Is there any information available that suggests site-specific 
water quality standards for total ammonia nitrogen in the Bay Delta 
Estuary may be more effective than current standards due to unique 
hydrological, chemical, biological, or physical conditions?
    c. What information is needed to determine effective site-specific 
water quality standards for total ammonia nitrogen, including narrative 
or numeric criteria?
    d. What information is available on nonpoint sources of total 
ammonia nitrogen and how they may most effectively and efficiently be 
controlled?
3. Selenium
    a. What, if any, additional information is available to better 
characterize selenium sources, loadings and impacts within the 
watershed of the Bay Delta Estuary?
    b. What data, studies, and analytical techniques (for example, 
models) could be used to improve our understanding of the physical 
processes, including surface-groundwater interactions, controlling 
selenium mobilization and transport to and within the Bay Delta 
Estuary?
    c. What data are needed to track selenium impacts in the Bay Delta 
ecosystem as currently configured, and to evaluate potential impacts of 
selenium under changed flow and transport conditions into and within 
the Delta?
    d. Are there additional selenium control methods or programs that 
should be considered for reducing selenium inputs and impacts?
4. Pesticides
    a. What, if any, additional scientific information is available on 
(a) the effects of pesticides in stormwater discharges, or (b) the 
potential interactive effects of combinations of pesticides on aquatic 
resources in the Bay Delta Estuary?
    b. What, if any, actions should EPA take under its authority to 
improve the effectiveness of regulating pesticide contamination of the 
Bay Delta Estuary watershed?
    c. How can the process for establishing numeric water quality 
criteria be streamlined while maintaining technical integrity?
    d. What are the benefits and constraints of using fish tissue in 
place of or in addition to water column concentrations when 
establishing water quality criteria for pesticides?
    e. Are there testing protocols that would effectively and 
efficiently identify synergistic toxic effects in the Bay Delta 
Estuary?

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    f. What, if any, specific combinations of contaminants are of 
particular concern in the Bay Delta Estuary?
    g. Should EPA and our state partners move away from evaluating 
isolated aquatic species for one or two pollutants, and towards 
evaluations of water conditions more representative of the actual 
aquatic conditions in the Bay Delta Estuary? How might this be done?
    h. What new or revised effluent limitations, monitoring 
requirements or other permit requirements could be included in NPDES 
permits for discharges of pesticides from Municipal Separate Storm 
Sewer Systems (MS4s) in the Bay Delta Estuary in order to better meet 
the regulatory standard of reducing discharges to the maximum extent 
practicable? What information is necessary to determine permit 
requirements, such as identifying effluent limits that can effectively 
reduce ambient contaminant concentrations and restore designated uses? 
Please provide any available information on water quality benefits that 
may result from such requirements.
    i. What new or revised effluent limitations, monitoring 
requirements or other permit requirements could be included in NPDES 
permits for stormwater discharges associated with construction activity 
and/or stormwater discharges associated with industrial activity to 
address pesticides? What information is necessary to determine permit 
requirements, such as identifying effluent limits that can effectively 
reduce ambient contaminant concentrations and restore designated uses? 
Please provide any available information on water quality benefits that 
may result from such requirements.
    j. Should EPA use its residual designation authority at 40 CFR 
122.35 to designate currently unregulated small MS4s to ensure that 
municipalities have programs in place to control the discharge of 
pesticides in stormwater to the maximum extent practicable? What 
information is necessary to determine permit requirements, such as 
identifying effluent limits that can effectively reduce ambient 
contaminant concentrations and restore designated uses? Please provide 
any available information on water quality benefits that may result 
from such requirements.
    k. Should EPA use its residual designation authority at 40 CFR 
122.26(a)(9)(i)(C)-(D) to designate currently unregulated stormwater 
discharges that contribute pesticides to surface waters? What 
information is necessary to determine permit requirements, such as 
identifying effluent limits that can effectively reduce ambient 
contaminant concentrations and restore designated uses? Please provide 
any available information on water quality benefits that may result 
from such requirements.
5. Contaminants of Emerging Concern
    a. What, if any, additional information is available regarding the 
effects of CECs on aquatic resources in the Bay Delta Estuary?
    b. What, if any, specific information exists to identify the 
sources and nature of discharges of CECs into the Bay Delta Estuary?
    c. What, if any, monitoring mechanisms or methodologies are 
available to assist in identifying CECs?
    d. What, if any, methods are most effective to minimize 
introduction of CECs into the Bay Delta Estuary?

B. Protecting Estuarine Habitat, Fish Migration Corridors and Wetlands

1. Estuarine Habitat
    a. What information is available on the effect of lower salinities 
in the western Delta on undesirable species, such as Microcystis, 
overbite clams, or jellyfish? What, if any, information is available to 
determine if an increase in low salinity habitat would affect the fate, 
concentration and distribution of nutrients and toxics that are 
potentially negatively affecting the estuarine food web?
    b. Could the frequency, area, and/or duration of low salinity 
habitat be changed so as to achieve ecosystem benefits for the suite of 
species that use the low salinity zone? If so, how? Is historical data 
on inter- or intra- annual frequency of variability the best basis for 
setting goals or are there other bases that could be used? How might 
climate change impacts, including sea level rise, affect the size, 
frequency, and duration of low salinity habitat?
    c. Are methods available for more systematically addressing 
ecological or biological connections between springtime locations of 
low salinity habitat and subsequent conditions of the low salinity zone 
in the fall? If so, what are they and what are their strengths and 
weaknesses?
    d. Would changes in water system operations to move the low 
salinity zone seaward in the fall adversely affect the reservoir 
storage needed to conserve salmonid fish spawning and other designated 
uses in the watershed? If so, under what conditions?
    e. What information is available on the effects of salinity 
management on terrestrial plant communities and/or tidal marsh endemic 
species? What indirect effect does this have on aquatic communities?
    f. Does the geographic location of low salinity habitat have an 
effect on the quality of the habitat or its availability to species of 
concern? If so, what is the nature and extent of such effect? Is the 
distribution pattern of low salinity habitat important in determining 
its quality?
    g. Are spring/neap differences in tidal water quality important for 
aquatic species? If so, how should these habitat characteristics be 
evaluated?
    h. How can performance measures for species population and/or 
habitat condition be used to evaluate restoration of Bay Delta Estuary 
water quality?
2. Fish Migration Corridors
    a. What role, if any, do gradients in physical and chemical 
constituents of water play in the suitability of the Bay Delta Estuary 
and San Joaquin River Basin migratory corridor for salmon?
    b. What are the best measures of success for restoration of a 
migratory corridor? Could these measures be incorporated into new or 
revised biological criteria protecting the fish migration designated 
use?
    c. Should temporal characteristics be included in the definition of 
the physical and/or chemical properties of a migration corridor based 
on a reference condition? If so, how? What frequency and duration of 
such a corridor is required for salmonids? How might these 
characteristics change with the impacts of climate change?
    d. Would establishing a migratory corridor for upmigrating adult 
chinook salmon succeed in improving adult migration success if 
temperatures in the river channels upstream of Vernalis are unchanged? 
If so, how? How might actions to establish a migratory corridor in the 
south Delta also moderate temperature and/or dissolved oxygen problems 
in the San Joaquin River?
    e. Are additional efforts to improve dissolved oxygen regimes in 
the Delta necessary to provide an adequate migratory corridor for San 
Joaquin salmonids? If so, what should those efforts include?
    f. What other information is available on the barriers to salmon 
migration in the Bay Delta Estuary and San Joaquin River watershed?
3. Wetlands
    a. What different approaches under the Clean Water Act Section 404 
program should EPA consider, in consultation with the U.S. Army Corps 
of Engineers, to improve the protection of aquatic resource functions 
in the Bay Delta Estuary?

[[Page 9714]]

    b. What information exists that describes the relationship between 
the quantity and quality of wetlands and Bay Delta Estuary water 
quality and fish populations?
    c. In light of projected impacts of climate change (including sea 
level rise and its effects on levee stability), what specific 
activities can EPA undertake to improve long-term protection of 
existing and future wetlands, especially those resources on subsided 
islands?

III. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51,735, October 4, 1993), this is a ``significant 
regulatory action''. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under Executive Order 
12866 and any changes made in response to OMB recommendations have been 
documented in the docket for this action.
    Because this action does not propose or impose any requirements and 
instead seeks comments and suggestions for the Agency to consider in 
possibly developing a subsequent proposed rule, the various statutes 
and Executive Orders that normally apply to rulemaking do not apply in 
this case. Should EPA subsequently determine to pursue a rulemaking, 
EPA will address the statutes and Executive Orders as applicable to 
that rulemaking.

    Dated: February 10, 2011.
Jared Blumenfeld,
Regional Administrator, U.S. Environmental Protection Agency, Region 9.
[FR Doc. 2011-3861 Filed 2-18-11; 8:45 am]
BILLING CODE 6560-50-P