[Federal Register Volume 84, Number 179 (Monday, September 16, 2019)]
[Notices]
[Pages 48610-48612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19985]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2019-0463; FRL 9999-83-OW]


Notice of Intent To Develop a Policy on the Determination of a 
Harmful Algal Bloom (HAB) and Hypoxia as an Event of National 
Significance in Freshwater Systems

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability; request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is requesting public 
comment to inform the development of an Agency policy for determining 
if a harmful algal bloom (HAB) or hypoxia event in freshwater is an 
``event of national significance.'' Recent amendments to the Harmful 
Algal Bloom and Hypoxia Research and Control Act (HABHRCA), provide the 
EPA with the statutory authority to make such a determination in the 
case of a freshwater HAB or hypoxia event. Public comments are intended 
to inform the development of a policy for the EPA to make such 
determinations, specifically for events in freshwater. A federal 
determination that such an occurrence is an event of national 
significance enables mobilization of federal resources to assess and 
mitigate its detrimental effects, subject to the availability of 
appropriations. The EPA requests input on what the Agency should 
specifically consider for determining a ``HAB or Hypoxia event of 
national significance'' in freshwater, and related factors in order to 
inform development of a draft EPA policy. On July 25, 2019, the 
National Oceanic and Atmospheric Administration (NOAA) issued a 
separate notice to solicit comments on HAB or hypoxia events of 
national significance in marine and coastal waters.

DATES: Comments must be received on or before October 31, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
0463 to the Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or withdrawn. The EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commentingepa-dockets.

FOR FURTHER INFORMATION CONTACT: Dr. Lesley V. D'Anglada, Health and 
Ecological Criteria Division, Office of Water (Mail Code 4304T), 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number: (202) 566-1125; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

How can I get copies of this document and other related information?

    1. Docket. The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-0463. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, 
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the ``Federal 
Register'' listings FDsys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

II. What are harmful algal blooms (HABs) and hypoxia and why is the EPA 
concerned about them?

    Harmful algal blooms (HABs) are caused by certain types of 
photosynthetic organisms that under certain conditions form large 
accumulations of algae that can adversely affect human health and the 
environment and can cause local economic losses. In freshwater, 
cyanobacteria are the major HABs-forming taxon. Cyanobacteria are 
microorganisms that can produce harmful cyanotoxins that, if ingested 
in sufficient amounts, can kill fish, shellfish, livestock, wildlife, 
and adversely impact human health. Algal blooms, both those that 
produce cyanotoxins and those that do not, can also harm aquatic 
environments by depleting oxygen needed to sustain freshwater aquatic 
life. HABs can negatively impact drinking water systems, recreation, 
commercial and recreational fishing, property values and public health. 
Recent notable drinking water cyanotoxin-related events include the 
2018 HAB event in Detroit Lake, Oregon, that resulted in do not drink 
advisories in the City of Salem, and the 2014 HAB event on Lake Erie 
that resulted in do not drink advisories in the City of Toledo. In 
2016, a cyanobacteria bloom in Lake Okeechobee traveled into St. Lucie 
Estuary, resulting in the largest cyanobacterial bloom reported in the 
state of Florida in ten years. The bloom

[[Page 48611]]

in the St. Lucie River resulted in beach closures and economic losses.
    Hypoxia is a condition where the concentration of dissolved oxygen 
(DO) in a portion of the water column decreases to a level that can no 
longer support aquatic life, typically less than 2-3 milligrams DO per 
liter. A variety of factors cause low or zero oxygen conditions in 
waterbodies, including nitrogen and phosphorus pollution, and waterbody 
stratification, or layering, due to temperature gradients. Low 
dissolved oxygen conditions are a serious environmental concern that 
can impact valuable fisheries and disrupt sensitive ecosystems. In 
freshwater lakes, hypoxia in deeper waters coupled with warm shallow 
waters can severely limit the habitat available for fish species, such 
as trout. Exposure to hypoxia can cause adverse effects to aquatic 
life, such as reduced growth and reproduction. For more details on 
HABs, please refer to this site: https://www.epa.gov/cyanohabs, and for 
more information on Hypoxia, please refer to this site: https://www.epa.gov/ms-htf/hypoxia-101.

III. Information on the Harmful Algal Bloom and Hypoxia Research and 
Control Act

    In 1998, Congress recognized the severity of these threats and 
passed the Harmful Algal Bloom and Hypoxia Research and Control Act 
(HABHRCA 1998, Pub. L. 105-383). The Harmful Algal Bloom and Hypoxia 
Research and Control Amendments Act of 2004 (HABHRCA 2004, Pub. L. 108-
456) and 2014 (HABHRCA 2014, Pub. L. 113-124) reaffirmed and expanded 
the mandate for NOAA to advance the scientific understanding and 
ability to detect, monitor, assess, and predict HAB and hypoxia events. 
Congress most recently reauthorized and amended HABHRCA through the 
National Integrated Drought Information System Reauthorization Act of 
2018 (Pub. L. 115-423, Sec.  9). This most recent reauthorization and 
amendment of HABHRCA is referred to as the Harmful Algal Bloom and 
Hypoxia Research and Control Amendments Act of 2017 (HABHRCA 2017). 
HABHRCA 2017 provides NOAA and EPA with authority to make a 
determination of a ``HAB or hypoxia event of national significance,'' 
for marine or coastal events or freshwater events, respectively, either 
in the discretion of the Agency head or at the request of a Governor of 
an affected state (33 U.S.C. 4010). Following such a determination, 
federal officials may ``make sums available to the affected State or 
local government for the purposes of assessing and mitigating the 
detrimental environmental, economic, subsistence use, and public health 
effects of the event of national significance.'' Funds would be subject 
to the availability of appropriations, though either of the respective 
agencies may accept donations of funds, services, facilities, 
materials, or equipment determined necessary for the purpose of 
assessing and mitigating the detrimental effects, and donated funds may 
be expended without further appropriation and without fiscal year 
limitation. As directed under HABHRCA 2017, EPA, in coordination with 
NOAA, intends to develop a policy for determining a HAB or Hypoxia 
occurrence as an ``event of national significance'' in freshwater 
systems in the United States. NOAA issued a separate notice to solicit 
comments on marine and coastal hypoxia or HAB events in 84 FR 35854 on 
July 25, 2019. After consideration of comments on this notice, the EPA 
anticipates developing a draft policy for which the Agency would 
solicit further comment.
    HABHRCA 2017 identified the following six factors to be considered 
in making the determination of a ``HAB or hypoxia event of national 
significance:'' the toxicity of the harmful algal bloom; the severity 
of the hypoxia; its potential to spread; the economic impact; the 
relative size in relation to the past five occurrences of harmful algal 
blooms or hypoxia events that occur on a recurrent or annual basis; and 
the geographic scope, including the potential to affect several 
municipalities, to affect more than one state, or to cross an 
international boundary.

IV. Solicitation of Public Comments

    The EPA is soliciting public comments regarding the factors 
provided by the amendments for the EPA to determine a HAB or Hypoxia 
Event of National Significance in freshwater systems. The EPA requests 
separate comment on the application of those factors for HAB and 
hypoxia events as it is likely that the factors would be considered 
differently for the different types of events. Specifically, the EPA is 
soliciting public comments on how to define, quantify, and weigh the 
following statutory parameters:
    A. Toxicity of the harmful algal bloom--What metrics should the EPA 
use to assess toxicity in determining national significance? For 
example, should the EPA consider reports of human or animal illnesses 
or deaths, or adverse effects on aquatic life? Are there other relevant 
metrics the EPA should consider? Should the toxicity of the event be 
considered differently based on its frequency and duration?
    B. Severity of hypoxia--What metrics should the EPA use to 
determine whether the severity of a hypoxic event makes it nationally 
significant? For example, should the severity of the event include 
consideration of human health, economic, and environmental impacts? Are 
there other relevant metrics the EPA should consider?
    C. Potential to spread--What metrics should the EPA use in 
determining whether the potential for the spread of a HAB or hypoxia 
event makes it nationally significant? For example, should historical 
information be used to inform a decision on the potential for a HAB or 
hypoxia event to spread? Are there other relevant metrics the EPA 
should consider?
    D. Economic impact--What metrics should the EPA use for economic 
impact in determining national significance? For example, should 
economic status (i.e., make-up of the state, local, and tribal 
government economy and its reliance on the affected waterway for 
tourism or drinking water) be considered when determining the national 
significance of an event? If so, how should economic status be 
considered? Are there other relevant metrics the EPA should consider?
    E. Relative size of an event in relation to the past 5 occurrences 
of HABs or hypoxia events that occur on a recurrent or annual basis--
What metrics should the EPA use for recurrence in determining national 
significance, and specifically whether the size and scope of an event 
or occurrence is significant relative to past events? For example, 
should the EPA assign a specific number of years, seasons, or months 
between events in considering national significance? Are there other 
relevant metrics the EPA should consider?
    F. Geographic scope, including the potential to affect several 
municipalities, to affect more than one state, or to cross an 
international boundary--What metrics should the EPA use in determining 
whether the geographic scope of a HAB or hypoxia event is nationally 
significant? For example, for an event that has or might impact more 
than one state should the EPA make a single determination for that 
event applicable to all states impacted including those states that may 
be impacted by expansion, movement, or intensification of the event? 
Should the EPA limit its consideration of national significance to the 
area requested by a state based on the then-current location and 
geographic extent of the event?
    The EPA is also requesting comments on whether the Agency should 
consider developing additional criteria and

[[Page 48612]]

whether to establish specific procedures for making such 
determinations. For example:
    A. Should the EPA consider the state's access to critical resources 
(human, financial, and infrastructure) in determining national 
significance? For example, does the state have access to technical 
expertise, necessary supplies/equipment, and alternate sources of 
water? If the EPA considers such access, what metrics should the EPA 
use to measure the capacity of state and local or tribal governments to 
address the bloom event?
    B. Should the EPA consider certain factors when an event impacts or 
threatens drinking water sources or finished drinking water? How should 
duration, magnitude, frequency, extent, and toxicity of HAB impacts on 
drinking water supplies be considered in determining events of national 
significance?
    C. Should the EPA consider certain factors when an event has 
impacts on or threatens recreational waters? How should these impacts 
be weighed in determining national significance?
    D. Should a determination of national significance be made only if 
funding has been appropriated to the agencies? If two or more states 
request determinations, and the determinations of national significance 
would otherwise qualify each state for funding consistent with the 
factors considered in making the determination, but only limited funds 
are available, how should amounts be distributed? Should the funding be 
equally proportioned or distributed according to some sort of a 
relative rank or score derived from a weighting of factors considered 
in the determination of national significance?
    E. What information should an impacted state provide to the EPA 
when requesting a determination of a freshwater event of national 
significance or a request to make sums available to the impacted state 
or local government to assess and mitigate an event of national 
significance?
    F. Should the EPA consider whether a state or local government that 
requests a determination that a HAB or hypoxia is an event of national 
significance concurrently requests other Federal relief for the same 
event or occurrence? If so, how should the EPA prioritize funding, for 
example, based on consideration of a particular factor or multiple 
factors?
    G. Should the EPA require that an affected state or local 
government request a determination of a freshwater event of national 
significance within certain timeframes with respect to the start or end 
of the event or occurrence?
    H. Other than funds, what tools and methods should the EPA make 
available after a determination of a freshwater event of national 
significance is made?

    Dated: September 6, 2019.
David P. Ross,
Assistant Administrator, Office of Water.
[FR Doc. 2019-19985 Filed 9-13-19; 8:45 am]
 BILLING CODE 6560-50-P