Ship pumping ballast water.
Photograph Attribution: US Coast Guard, Public domain, via Wikimedia Commons
From: Wilson, Erin E. (DNREC) <This email address is being protected from spambots. You need JavaScript enabled to view it.>
To: “This email address is being protected from spambots. You need JavaScript enabled to view it.” <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Cc: “Cole, Kimberly B. (DNREC)” <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date: Jan 21, 2021, 9:17 AM
Subject: Proposed EPA Incidental Vessel Discharge Regulations
Hello,
On January 8, 2021, you submitted comments to the Delaware Coastal Management Program (DCMP) for the Vessel Incidental Discharges National Standards of Performance federal consistency project. The DCMP has reviewed your comments and summarized responses in the attached Public Comment Response Memo.
Thank you for your public participation in the federal consistency review process.
Erin
Erin Wilson | Environmental Scientist
Division of Climate, Coastal, & Energy | Delaware Coastal Programs
Department of Natural Resources and Environmental Control
100 W. Water St., Suite 7B | Dover, DE 19904 | Office: 302-739-9283
State of Delaware
Department of Natural Resources and Environmental Control
Division of Climate, Coastal & Energy
State Street Commons
100 W. Water Street, Suite 7B
Dover, Delaware 19904
PUBLIC COMMENT RESPONSE MEMO
Federal Consistency Determination Review: Vessel Incidental Discharge National Standards of Performance (FC 2021.0006)
Public Notice: The Delaware Coastal Management Program (DCMP) placed this project on public notice for 20 days from December 20, 2020 to January 8, 2021 and received comments from 1 individual on the project.
The DCMP has reviewed the comments raised and summarized responses below:
Comment 1
Please make sure the relevant documents for review are uploaded properly to the Delaware Department of Natural Resources and Environmental Control (DNREC) Public Notices webpage to foster community involvement. In this case, the links to the proposed rule and to the Delaware Coastal Management Program, were not provided. We recommend that the pertinent information should be readily available with the comment period public notice.
DCMP Response
The DCMP provided public notice of this federal agency activity in accordance with our public notice requirements outlined in 7 DE Admin. Code 2201, subsection 3.1.2.1. Relevant materials were made available to the public on the DNREC website through the Public Notices webpage.
Comment 2
EPA’s proposed rule, supporting documentation, and the Delaware Coastal Management Program (DCMP) documents are both several hundred pages long and create a challenge to review and submit public comments for in such a limited time period. In order to foster community involvement, please extend the Public Comment period for an additional 30 or more days to allow me and the general public more time to conduct a thorough review and provide feedback of the documents.
DCMP Response
The DCMP expressed concerns regarding the limited time period we had to review this project in our response letter to the Environmental Protection Agency (EPA). Pursuant to 15 CFR 930.41(b), we requested a 15-day extension to increase our review period from 60 to 75 days. However, we have no other means of requiring further review time.
Comment 3
According to the DCMP, for any federal agency activity that may impact the coast, the federal agency must determine consistency with the coastal management program. Does the DNREC have cause to believe that the proposed rule will impact Delaware’s coastal area?
DCMP Response
Delaware defines its coastal management area as the entire state for the purpose of the federally approved coastal management program. Therefore, we do believe our coastal area has the potential to be impacted by the proposed activity.
Comment 4
Commercial fishing vessels and other non-recreational vessels less than 79 feet in length are currently covered under the 2013 Vessel General Permit (VGP) or EPA’s small VGP (sVGP).
Per the proposed Vessel Incidental Discharge National Standards of Performance, vessels less than 79 feet in length are exempt. However, the rule applies to any discharge of ballast water. The document failed to present statistics on the effective impact of the proposed rule. We suggest that the State of Delaware provide information on these impacts (e.g., add a table showing how many vessels are currently regulated and provide information as to the number of vessels that will be both impacted and left unregulated by the proposed rule).
DCMP Response
Upon the enactment of the Vessel Incidental Discharges Act (VIDA) in 2018, the 2014 sVGP was immediately repealed and incidental discharges from vessels less than 79 feet in length became exempt from the rulemaking. Therefore, these discharges were not included in the scope of this review. That action did not fall under the purview of the CZMA and EPA did not provide any information on this subject area in their consistency determination for this proposed rulemaking.
Comment 5
The federal rule proposes to not require vessel operators to minimize/avoid uptake of ballast water in certain areas and situations (e.g., toxic algal blooms). The proposed rule would appear to result in a failure to follow BMPs; therefore, the proposed rule should not be adopted. Not requiring this BMP makes the proposed standards less stringent than the existing 2013 VGP (i.e., operators would be able to uptake ballast water in areas known to have infestations or populations of harmful organisms and pathogens).
DCMP Response
The DCMP has stated that the inclusion of the ballast uptake BMP is a condition of our concurrence with the proposed activity. If the federal agency does not comply with this condition, our decision will be considered an objection.
Comment 6
Page 67874 - Per Section X, 7th full paragraph, of the Vessel Incidental Discharge National Standards of Performance, “the proposed rule does not include implementation, compliance, or enforcement provisions”. The USCG is set to promulgate the monitoring and enforcement requirements of the proposed standards, conceivably indicating the new role for each state. The final rule should specify what measures the State of Delaware will take to prepare for a smooth transition. Additionally, the final rule should specify what the State of Delaware will be required to do to ensure the coastal waters are protected during any transitional period.
DCMP Response
The DCMP requested proactive coordination and review time that would allow for inclusion of public feedback for future federal consistency reviews from the EPA in our response letter.
__________________________________________________
Ms. Kimberly Cole, Administrator
Delaware Coastal Programs
100 W. Water Street, Suite 7B
Dover, DE 19904
Via email at This email address is being protected from spambots. You need JavaScript enabled to view it.
Re: Delaware Department of Natural Resources and Environmental Control Notice of Request For A Review Of Federal Consistency Determination: Proposed EPA Incidental Vessel Discharge Regulations, Comments Due 1-8-21
Dear Ms. Cole,
Environmental Review, Inc. has reviewed the proposed rule and has the following comments:
1) Please make sure the relevant documents for review are uploaded properly to the Delaware Department of Natural Resources and Environmental Control (DNREC) Public Notices webpage to foster community involvement. In this case, the links to the proposed rule and to the Delaware Coastal Management Program, were not provided. We recommend that the pertinent information should be readily available with the comment period public notice.
2) EPA’s proposed rule, supporting documentation, and the Delaware Coastal Management Program (DCMP) documents are both several hundred pages long and create a challenge to review and submit public comments for in such a limited time period. In order to foster community involvement, please extend the Public Comment period for an additional 30 or more days to allow me and the general public more time to conduct a thorough review and provide feedback of the documents.
3) According to the DCMP, for any federal agency activity that may impact the coast, the federal agency must determine consistency with the coastal management program. Does the DNREC have cause to believe that the proposed rule will impact Delaware’s coastal area?
4) Commercial fishing vessels and other non-recreational vessels less than 79 feet in length are currently covered under the 2013 Vessel General Permit (VGP) or EPA’s small VGP (sVGP). Per the proposed Vessel Incidental Discharge National Standards of Performance, vessels less than 79 feet in length are exempt. However, the rule applies to any discharge of ballast water. The document failed to present statistics on the effective impact of the proposed rule. We suggest that the State of Delaware provide information on these impacts (e.g., add a table showing how many vessels are currently regulated and provide information as to the number of vessels that will be both impacted and left unregulated by the proposed rule).
5) The federal rule proposes to not require vessel operators to minimize/avoid uptake of ballast water in certain areas and situations (e.g., toxic algal blooms).1 The proposed rule would appear to result in a failure to follow BMPs; therefore, the proposed rule should not be adopted. Not requiring this BMP makes the proposed standards less stringent than the existing 2013 VGP (i.e., operators would be able to uptake ballast water in areas known to have infestations or populations of harmful organisms and pathogens).
6) Page 67874 - Per Section X, 7th full paragraph, of the Vessel Incidental Discharge National Standards of Performance, “the proposed rule does not include implementation, compliance, or enforcement provisions”. The USCG is set to promulgate the monitoring and enforcement requirements of the proposed standards, conceivably indicating the new role for each state. The final rule should specify what measures the State of Delaware will take to prepare for a smooth transition. Additionally, the final rule should specify what the State of Delaware will be required to do to ensure the coastal waters are protected during any transitional period.
When responses to these comments are available, please email them to me at This email address is being protected from spambots. You need JavaScript enabled to view it..
Thank you,
Nelly Montanez (Associate in Illinois)
Environmental Reviewer
Environmental Review, Inc. (501 (c)(3) Nonprofit Public Benefit Corporation)
1792 Rogers Avenue
San Jose, CA 95112
Footnotes
1 Vessel Incidental Discharge National Standards of Performance section VIII. Development of National Discharge Standards of Performance, B. Discharges Incidental to the Normal Operation of a Vessel - Specific Standards, 2. Ballast Tanks, IV. Ballast Water Best Management Practices (BMPS), H. Best Management Practices Not Continued From Existing Requirements