[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Proposed Rules]
[Pages 79604-79607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32793]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2009-0596; FRL-9611-1]
RIN 2040-AF36
Effective Date for the Water Quality Standards for the State of
Florida's Lakes and Flowing Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
extend the March 6, 2012 effective date of the ``Water Quality
Standards for the State of Florida's Lakes and Flowing Waters; Final
Rule'' (inland waters rule) for ninety days to June 4, 2012. EPA's
inland waters rule included an effective date of March 6, 2012 for the
entire regulation except for the site-specific alternative criteria
provision, which took effect on February 4, 2011. This proposal to
revise the effective date for the inland waters rule does not affect or
change the February 4, 2011 effective date for the site-specific
alternative criteria provision. In this proposal, EPA is requesting
comment on extending the effective date for the ``Water Quality
Standards for the State of Florida's Lakes and Flowing Waters; Final
Rule.''
DATES: Comments must be received on or before January 23, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: ow-docket@epa.gov.
3. Mail to: Water Docket, U.S. Environmental Protection Agency,
Mail code: 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No.
EPA-HQ-OW-2009-0596. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
0596. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. 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. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although listed in the index, some information is not
publicly available, i.e., Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Certain
other material, such as copyright material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Docket Facility.
The Office of Water (OW) Docket Center is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The OW Docket
Center telephone number is (202) 566-1744 and the Docket address is OW
Docket, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC
20004. The 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.
FOR FURTHER INFORMATION CONTACT: For information concerning this
rulemaking, contact: Tracy Bone, U.S. EPA, Office of Water, Mailcode
4305T, 1200 Pennsylvania Avenue NW., Washington, DC, 20460; telephone
number (202) 564-5257; email address: bone.tracy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
Does this action apply to me?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging nitrogen or phosphorus to
lakes and flowing waters of Florida could be indirectly affected by
this rulemaking because water quality standards (WQS) are used in
determining National Pollutant Discharge Elimination System (NPDES)
permit limits. Categories and entities that may ultimately be affected
include:
------------------------------------------------------------------------
Examples of potentially affected
Category entities
------------------------------------------------------------------------
Industry.......................... Industries discharging pollutants to
lakes and flowing waters in the
State of Florida.
[[Page 79605]]
Municipalities.................... Publicly-owned treatment works
discharging pollutants to lakes and
flowing waters in the State of
Florida.
Stormwater Management Districts... Entities responsible for managing
stormwater runoff in Florida.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for entities that may be directly or indirectly affected by this
action. This table lists the types of entities of which EPA is now
aware that potentially could be affected by this action. Other types of
entities not listed in the table, such as nonpoint source contributors
to nitrogen/phosphorus pollution in Florida's waters may be affected
through implementation of Florida's water quality standards program
(i.e., through Basin Management Action Plans (BMAPs)). Any parties or
entities conducting activities within watersheds of the Florida waters
covered by this rule, or who rely on, depend upon, influence, or
contribute to the water quality of the lakes and flowing waters of
Florida, may be affected by this rule. To determine whether your
facility or activities may be affected by this action, you should
carefully examine the language in 40 CFR 131.43, which is the final
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
On December 6, 2010, EPA's final inland waters rule, entitled
``Water Quality Standards for the State of Florida's Lakes and Flowing
Waters; Final Rule'', was published in the Federal Register at 75 FR
75762, and codified at 40 CFR 131.43. The final inland waters rule
established numeric nutrient criteria in the form of total nitrogen,
total phosphorus, nitrate+nitrite, and Chlorophyll a for the different
types of Florida's inland waters to assure attainment of the State's
applicable water quality designated uses. More specifically, the
numeric nutrient criteria translate Florida's narrative nutrient
provision at Subsection 62-302-530(47)(b), Florida Administrative Code
(F.A.C.), into numeric values that apply to lakes and springs
throughout Florida and flowing waters outside of the South Florida
Region. (EPA has distinguished the South Florida Region as those areas
south of Lake Okeechobee and the Caloosahatchee River watershed to the
west of Lake Okeechobee and the St. Lucie watershed to the east of Lake
Okeechobee.) This final action seeks to improve water quality, protect
public health and aquatic life, and achieve the long-term recreational
uses of Florida's waters, which are a critical part of the State's
economy.
As stated in 40 CFR 131.43(f), 75 FR 75807, the rule is scheduled
to take effect on March 6, 2012, except for the site-specific
alternative criteria (SSAC) provision at 40 CFR 131.43(e), which took
effect on February 4, 2011. EPA selected the March 6, 2012 effective
date for the criteria part of the rule to allow time for EPA to work
with stakeholders and the Florida Department of Environmental
Protection (FDEP) on important implementation issues, to help the
public and all affected parties better understand the final criteria
and the bases for those criteria, and for EPA to engage and support, in
full partnership with FDEP, the general public, stakeholders, local
governments, and sectors of the regulated community across the State in
a process of public outreach education, discussion, and constructive
planning. 75 FR 75787.
III. Proposed Effective Date
A. Current Inland Waters Rule Effective Date and Rationale
The current effective date for the inland waters rule is March 6,
2012 except, as noted earlier, for the site-specific alternative
criteria (SSAC) provision, which became effective February 4, 2011. As
mentioned earlier, in the December 6, 2010, preamble for the final rule
(75 FR 75762, 75787), the Agency noted its desire to actively engage in
partnership with the Florida Department of the Environment (FDEP) to
support FDEP's implementation of the new criteria before the criteria
take effect. The 15-month period between publication and the effective
date was to allow for education and outreach efforts targeted at the
major interest sectors and geographic locations throughout the State of
Florida, including training and guidance concurrent with data synthesis
and analysis to support potential SSAC development; public comment and
response period to allow development of effective guidance, training
and possible workshops to run concurrent with SSAC submittals;
finalizing guidance materials along with development of rollout
strategies concurrent with notice and comment of SSAC guidance; and
finally statewide education and training on guidance and contingency
planning. These actions were considered reasonably necessary to ensure
application of programs to achieve criteria in a manner to make the
most efficient use of limited resources and to gain the broadest
possible support for timely and effective action upon reaching the
effective date of the criteria.
Since December of 2010, EPA at both the Headquarters and Regional
levels has worked in collaboration with the State on outreach and
education efforts including: participating in multiple meetings with a
wide variety of local officials from Florida, conducting various
webinars and meetings with respect to the final rule, including the
SSAC provision, and participating in technical meetings with various
stakeholder groups. EPA has met with a wide range of stakeholders and
local officials, including: State, county and city representatives,
utility managers and water districts, and representatives from industry
and agriculture. Between November 2010 and March 2011, EPA conducted
five webinars discussing various aspects of the final rule for lakes,
streams and springs and its implementation, with participation by over
750 people from a wide range of stakeholder groups in Florida. EPA met
with and/or held conference calls with local officials from Palm Beach
County, Jacksonville, Gainesville, Polk County and several of the
State's Water Management Districts. EPA hosted officials from the
Florida League of Cities and the Association of Counties for a day-long
meeting to address questions and concerns from those officials. EPA
also participated in conferences sponsored by organizations such as the
League of Cities, Association of Counties, Florida Stormwater
Association, Air and Water Managers Association, and the Florida
Engineering Society. EPA has been coordinating closely with FDEP on
issues related to implementation of the rule and supporting State
efforts to develop State-adopted numeric nutrient criteria.
B. Rationale for Extending the March 6, 2012 Effective Date
EPA is proposing to extend the effective date of the inland waters
rule (with the exception of the SSAC provision, which is already in
effect) for
[[Page 79606]]
ninety days, to June 4, 2012, for the reasons discussed in this
section.
Since the promulgation of the December 6, 2010 final rule for
Florida's inland waters, EPA has continued to work in close
coordination with the State of Florida as the State develops its own
rulemaking for numeric nutrient criteria that are consistent with
requirements of the CWA, address the water quality needs of the State,
and support effective permit implementation, water body assessment and
listing, and development of TMDLs. On November 10, 2011, FDEP proposed
numeric nutrient criteria and related provisions for inland as well as
a number of estuarine waters for the State, which were published in the
Florida Administrative Weekly (Volume 37, number 45, pages 3753-3775).
On December 8, 2011, the State's Environmental Review Commission (ERC)
approved these proposed rules with additional amendments. On December
9, 2011, it is EPA's understanding that FDEP submitted the ERC-approved
rules and amendments to the Florida Legislature for ratification during
the 2012 legislative session. Since the ERC approved additional
amendments to the rules that were proposed on November 10, 2011, EPA
understands that FDEP must publish a notice of change, which is
expected to be included in the December 23, 2011 edition of the Florida
Administrative Weekly.
At the time of today's proposed effective date extension, the State
rulemaking and legislative process is ongoing and its ultimate
resolution is uncertain. Nonetheless, final State action in this area
could have significant implications for many interested parties and
members of the public in the State on the need to move forward with
implementation of EPA's inland water numeric criteria in the event that
alternative Florida numeric nutrient criteria are established that
assure attainment of State water quality designated uses consistent
with applicable CWA provisions. Successful State action on this issue
could also affect the obligations and expectations of a wide range of
affected stakeholders whose actions relate to the discharge or
contribution of nitrogen and phosphorus pollution to State waters. The
last day of Florida's 2012 regular legislative session is March 9,
2012. Extending the effective date of EPA's inland waters rule would
avoid the confusion and inefficiency that may occur should Federal
criteria become effective while State criteria are being finalized by
the State and reviewed by EPA. If the State decides to not proceed with
final numeric nutrient criteria before EPA finalizes this proposal to
extend the effective date, EPA anticipates not finalizing an extension
of the March 6, 2012, effective date.
However, if the State rulemaking process continues as planned
toward FDEP's submission of new or revised water quality standards to
EPA for review pursuant to CWA section 303(c), EPA anticipates and
proposes extending the March 6, 2012 effective date by ninety days to
June 4, 2012, to allow the State to complete its process. Should the
State decide not to proceed with final numeric nutrient criteria after
the ninety-day extension is finalized, EPA anticipates the inland
waters rule would become effective at the end of the ninety days, on
June 4, 2012. If, however, the State rulemaking process results in
final and effective numeric nutrient criteria after EPA has finalized
the ninety-day extension, EPA would expect to propose a further
extension of the effective date of the inland waters rule, to allow
FDEP to submit the rule to EPA for review and action under section
303(c) of the CWA, for EPA to complete its review of the State rule,
and for EPA to withdraw any Federal numeric nutrient criteria
corresponding to any State-adopted numeric nutrient criteria that have
been approved by EPA.
Should EPA decide to extend the effective date of the inland waters
rule, the Agency will continue to work with Florida towards
implementation of Federal or State numeric nutrient criteria. As EPA
stated in the preamble to the final inland waters rule, the opportunity
that is presented by numeric nutrient criteria--for substantial
nitrogen and phosphorus loadings reductions in the State--``would be
greatly facilitated and expedited by strongly coordinated and well-
informed stakeholder engagement, planning, and support before a rule of
this significance and broad scope begins to take effect and be
implemented through the State's regulatory programs.'' 75 FR 75787.
EPA solicits comments regarding the proposed extension of ninety
days, to June 4, 2012, for the effective date of the inland waters
rule. EPA also requests comment on whether a longer extension should be
provided to allow Florida more time to complete the State rulemaking
process.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993), since it
merely extends the effective date of an already promulgated rule, and
is therefore not subject to review under Executive Order 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This action does not impose any
information collection burden, reporting or record keeping requirements
on anyone.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have significant economic impact on a substantial number
of small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of this action on small entities, small entity is
defined as: (1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
This proposed rule does not establish any requirements that are
applicable to small entities, but rather merely extends the date of
already promulgated requirements. Thus, I certify that this rule will
not have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local,
[[Page 79607]]
and Tribal governments and the private sector. Under section 202 of the
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives, and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation of why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
Tribal governments or the private sector. This proposed rule does not
regulate or affect any entity and, therefore, is not subject to the
requirements of sections 202 and 205 of UMRA.
E. Executive Order 13132 (Federalism)
This action does not have Federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action merely extends the
effective date of an already promulgated regulation.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has Tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by Tribal governments, or
EPA consults with Tribal officials early in the process of developing
the proposed regulation and develops a Tribal summary impact statement.
However, the rule will neither impose substantial direct compliance
costs on Tribal governments, nor preempt Tribal law.
In the State of Florida, there are two Indian Tribes, the Seminole
Tribe of Florida and the Miccosukee Tribe of Indians of Florida, with
lakes and flowing waters. Both Tribes have been approved for treatment
in the same manner as a State (TAS) status for CWA sections 303 and 401
and have federally-approved WQS in their respective jurisdictions.
These Tribes are not subject to this proposed rule. This rule will not
impact the Tribes because it merely extends the date of already
promulgated requirements.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO 12866
and because the Agency does not believe this action includes
environmental health risks or safety risks that would present a risk to
children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on environmental justice. Its main
provision directs agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. This action is not subject to E.O.
12898 because this action merely extends the effective date for already
promulgated requirements.
List of Subjects in 40 CFR Part 131
Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.
Dated: December 16, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-32793 Filed 12-21-11; 8:45 am]
BILLING CODE 6560-50-P