[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Rules and Regulations]
[Pages 46298-46304]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18872]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2011-0515, FRL 9666-8]
RIN 2040-AF38
Phosphorus Water Quality Standards for Florida Everglades
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is promulgating a rule that identifies provisions of
Florida's Water Quality Standards for Phosphorus in the Everglades
Protection Area (Phosphorus Rule) and Florida's Amended Everglades
Forever Act (EFA) that EPA has disapproved and that therefore are not
applicable water quality standards for purposes of the Clean Water Act.
EPA is promulgating this final rule following EPA's disapproval of
these provisions and EPA's specific directions to the State of Florida
to correct these deficiencies in the Phosphorus Rule and EFA. EPA's
disapproval, specific directions to the State, and this rule implement
two orders by the U.S. District Court for the Southern District of
Florida.
DATES: This final rule is effective September 4, 2012. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of September 4,
2012.
ADDRESSES: An electronic version of the public docket is available
through the EPA's electronic public docket and comment system, EPA
Dockets. You may use EPA Dockets at http://www.regulations.gov to view
public comments at Docket number EPA-HQ-OW-2011-0515, 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 the EPA
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Publicly available docket materials are available either electronically
in 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: Mario Sengco, Standards and Health
Protection Division, Office of Science and Technology, Mail Code:
4305T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460; telephone number: (202) 566-2676; email:
sengco.mario@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What entities may be affected by this rule?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging phosphorus to waters upstream
of the Everglades Protection Area could be indirectly affected by the
Phosphorus Rule and EFA, although not specifically by this rule because
the rule merely publishes the text changes that reflect the prior
disapproval by the EPA of certain provisions of the Phosphorus Rule and
EFA. Any indirect affect to entities would be because the water quality
standards contained in the State's regulation and statute are used in
determining National Pollutant Discharge Elimination System (NPDES)
permit limits. With this in mind, categories and entities that
ultimately may be indirectly affected include:
------------------------------------------------------------------------
Examples of potentially
Category indirectly affected entities
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Water Management Districts........... Entities responsible for managing
point source discharges near the
Everglades Protection Area.
Nonpoint Source Contributors......... Entities responsible for
contributing nonpoint source
runoff near the Everglades
Protection Area.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for entities that may be affected indirectly by this action. This
table lists the types of entities of which EPA is now aware that
potentially could be indirectly affected by this action. Other types of
entities not listed in the table could also be affected directly or
indirectly. 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
Everglades Protection Area, might be indirectly affected by this rule.
To determine whether your facility or activities may be affected by
this action, you should examine the rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding section, entitled FOR
FURTHER INFORMATION CONTACT.
B. How do I get copies of this notice?
Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2011-0515. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460.
Publicly available docket materials are available electronically
through www.regulations.gov and in hard copy at the EPA Docket Center
Public Reading Room, 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.
Incorporation by reference. Documents that are being incorporated
by reference through this rule may be found in the docket as described
above, on EPA Web site established for this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm, and
through the National Archives and Records Administration (NARA) by
sending a request by email to fedreg.info@nara.gov">fedreg.info@nara.gov, or by mail to the
following address: Office of the Federal Register (NF), The National
Archives and Records Administration, 8601 Adelphi Road, College Park,
MD 20740-6001. For information on the availability
[[Page 46299]]
of this material at NARA, call 202-741-6030, or go to the following Web
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm.
II. Background
EPA is promulgating this rule to identify provisions of Florida's
Water Quality Standards for Phosphorus in the Everglades Protection
Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act
(EFA) that EPA has disapproved and that therefore are not applicable
water quality standards for purposes of the Clean Water Act. EPA is
promulgating this final rule following its disapproval of these
provisions and EPA's specific directions to the State of Florida to
correct these deficiencies in the Phosphorus Rule and EFA. EPA's
disapproval and specific directions to the State implement two orders
by the U.S. District Court for the Southern District of Florida.
Pursuant to the Court's orders and consistent with Clean Water Act
section 303(c), EPA provided the State a period of time to correct the
deficiencies. The State has not corrected the deficiencies within that
time period. Therefore, EPA is promulgating this rule. The rule
incorporates by reference two documents that identify the specific
provisions of Florida's Phosphorus Rule and EFA that are not applicable
water quality standards for purposes of the Clean Water Act. The
specific provisions that are not applicable water quality standards are
indicated with ``strikeout'' text in the documents that are
incorporated by reference into the Code of Federal Regulations.
A. Statutory and Regulatory Background
Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA)
directs States, with oversight by EPA, to adopt water quality standards
to protect the public health and welfare, enhance the quality of water
and serve the purposes of the CWA. Under section 303, States are
required to develop water quality standards for waters of the United
States within the State. Section 303(c) and EPA's implementing
regulations (40 CFR part 131) provide that water quality standards
shall include designated uses of the water and water quality criteria
necessary to protect those uses.
States must submit any new or revised water quality standards for
EPA review and approval/disapproval. EPA must approve/disapprove any
new or revised standards within 60-90 days. (Section 303(c)(3)). If EPA
disapproves any standard, EPA is to specify the changes to meet the
requirements of the CWA. If the changes are not adopted by the State,
EPA is to promulgate standards to address the necessary changes in the
State standards that EPA has disapproved. In this rulemaking, EPA is
identifying the portions of Florida's standards that EPA disapproved
and that, after EPA notification of necessary changes, the State has
not adopted through changes in State publications.
B. Florida's Phosphorus Rule and Everglades Forever Act
1. Florida's Phosphorus Rule
In 2005, the Florida Department of Environmental Protection (FDEP)
submitted to EPA for review pursuant to CWA section 303(c), provisions
of Florida Administrative Code (``FAC'') 62-302.540 entitled ``Water
Quality Standards for Phosphorus Within the Everglades Protection
Area'' (Phosphorus Rule or Rule). The Rule established a numeric water
quality criterion for phosphorus as well as implementing provisions for
the numeric criterion within the Everglades Protection Area. In 2005
and 2006, EPA issued a series of decisions approving certain provisions
of the Phosphorus Rule and concluding that other provisions were not
new or revised water quality standards and did not require EPA approval
or disapproval under CWA section 303(c).
2. Florida's Everglades Forever Act
The Florida Legislature enacted the Everglades Forever Act in 1994
to maintain and restore the ecosystem of the Everglades. See Miccosukee
Tribe of Indians v. United States, 105 F.3d. 599, 601 (11th Cir. 1997).
EPA subsequently reviewed and approved one section of the EFA (section
4(f)) as a new or revised water quality standard in 1999. The
Legislature enacted amendments to the EFA in 2003. EPA reviewed the
amendments and issued a decision in 2003 that the amendments were not
new or revised water quality standards requiring EPA approval or
disapproval under section 303(c) of the CWA.
C. Litigation and Subsequent EPA Actions
In consolidated litigation, environmental and Native American
plaintiffs challenged (1) EPA's 2003 decision that the EFA amendments
were not water quality standards and (2) EPA's 2005 and 2006 decisions
regarding the Phosphorus Rule. In a July 29, 2008 decision, the U.S.
District Court for the Southern District of Florida upheld in part and
remanded in part EPA's decisions. Miccosukee Tribe of Indians & Friends
of the Everglades v. U.S. Environmental Protection Agency, Florida
Department of Environmental Protection, et al., No. 04-21488-CIV-Gold/
McAliley (S.D. Fla.). The Court upheld EPA's 2005 approval of the
Phosphorus Rule's numeric phosphorus criterion and the ``four-part''
test for determining attainment of the criterion. The Court overturned
(1) EPA's decision that certain implementing provisions of the
Phosphorus Rule were not new or revised water quality standards, and
(2) EPA's approval of other provisions of the Phosphorus Rule, finding
EPA's approval to be arbitrary and capricious. The Court also rejected
EPA's position that the legislative amendments to the EFA did not
constitute new or revised water quality standards subject to EPA review
(and approval or disapproval) under section 303(c) of the CWA. The
Court remanded to EPA to take further action consistent with the
Court's decision.
1. EPA's December 2009 Determination
On December 3, 2009, EPA issued a new Determination in response to
the Court's remand. Consistent with the Court's 2008 decision, EPA
disapproved certain amendments to the EFA. It is those disapproved
provisions of the EFA that are, in part, the subject of this
rulemaking. In addition, EPA reviewed the provisions of the Phosphorus
Rule that the Court either found were new or revised standards or that
the Court had held EPA's prior approval invalid. Consistent with the
Court's decision, EPA disapproved certain provisions of the Phosphorus
Rule in December of 2009 and those disapproved provisions also are
reflected in this final rulemaking.
2. Court's April 14, 2010 Order
Plaintiffs challenged EPA's December 2009 Determination, alleging,
in part, that EPA failed to (1) specify the changes that Florida must
make to the Phosphorus Rule and EFA to bring them into compliance with
the CWA and (2) commit to promulgate if the State fails to act. The
Court, in an order dated April 14, 2010, remanded EPA's 2009
Determination and ordered EPA to issue an Amended Determination (AD) by
September 3, 2010. Miccosukee Tribe of Indians & Friends of the
Everglades v. U.S. Environmental Protection Agency, Florida Department
of Environmental Protection, et al., No. 04-21488-CIV-Gold/McAliley
(April 14, 2010, S.D. Fla.) (Order). While the Court did not take issue
with EPA's disapprovals, the Court nevertheless ordered that EPA's AD
``shall specifically direct the State of
[[Page 46300]]
Florida to correct deficiencies in the Amended EFA and Phosphorus Rule
that have been invalidated,'' attaching copies of the Rule and EFA with
strikeout markings indicating the exact language from the Rule and EFA
that the EPA was to direct the State to correct. Order at 44. The Court
ordered that in the AD, ``EPA shall require the State of Florida to
commence and complete rulemaking for the Phosphorus Rule within 120
days from the date of the Amended Determination and shall require
amendments to the Amended EFA to be enacted by July 1, 2011.'' Order at
44-45. The Court further ordered that ``[i]n the event the State of
Florida fails to timely act, the EPA shall provide timely notice, and
the EPA Administrator ``shall promulgate such standard[s]'' pursuant to
33 U.S.C. 1313(c).'' Order at 45. This rulemaking complies with that
Court order.
3. EPA's September 3, 2010 Amended Determination
Consistent with the Court's April 14, 2010 Order, EPA prepared an
Amended Determination (AD) dated September 3, 2010. The AD directed the
State of Florida to correct deficiencies in the Phosphorus Rule and
Amended EFA. The AD included as attachments copies of the Phosphorus
Rule and EFA with strikeout markings indicating the language changes
necessary to meet Clean Water Act requirements. EPA's AD stated that if
FDEP has not finalized revisions by January 1, 2011 and the Legislature
has not enacted amendments to the EFA by July 1, 2011, then EPA would
initiate rulemaking to promulgate the necessary changes consistent with
the Court's Order.
Although FDEP initiated a rulemaking, with a notice of rule
development published on March 26, 2010, to adopt the necessary
revisions to the Phosphorus Rule and the EFA amendments consistent with
EPA's AD, the State rulemaking agencies did not complete that process
on the Phosphorus Rule changes by January 1, 2011. Nor has the State
completed its rulemaking process on the Phosphorus Rule since that
date. The Florida Legislature also did not introduce or enact any
amendments to the EFA consistent with EPA's AD. The Florida Legislature
adjourned and did not reconvene prior to July 1, 2011. Therefore, EPA
proceeded, consistent with the Court's Order and EPA's AD, to initiate
this rulemaking process to promulgate the proposed federal rulemaking
identifying the necessary changes to the Phosphorus Rule and EFA to
meet Clean Water Act requirements.
III. EPA's Proposal and Public Comments Received
Proposed Rule: EPA's proposed rule identified those provisions in
the Phosphorus Rule and Everglades Forever Act (EFA) that EPA had
disapproved and therefore are not applicable water quality standards
for purposes of the CWA. The provisions are those that EPA previously
disapproved in December 2009 that the Court identified in its April
2010 Order, and that EPA subsequently identified in its September 2010
AD. EPA initiated this rulemaking to promulgate the necessary changes
to the Phosphorus Rule and EFA, consistent with the April 2010 Order
and EPA's AD, after the State failed to make changes to the regulation
and statute, respectively, by specified dates.
For the purposes of codifying the changes, EPA proposed to
incorporate by reference into the Code of Federal Regulations copies of
the Phosphorus Rule and EFA with the strikeout markings, identifying
the provisions and language that are not applicable water quality
standards for purposes of the CWA. EPA explained that the approach of
incorporation by reference was the most appropriate among the
approaches that the Agency considered to correct the deficiencies in
the State's regulation and statute. Therefore, copies of the two
documents to be incorporated were placed in the rulemaking docket. In
addition, EPA identified the specific provisions of the Phosphorus Rule
and EFA that are not applicable water quality standards for purposes of
the CWA in Tables 1 and 2 of the proposal.
EPA further explained in the proposal that the remaining provisions
of the Phosphorus Rule and EFA either (1) had already been approved by
EPA as new or revised water quality standards (i.e., are applicable
water quality standards for the purposes of the CWA), or (2) are not
water quality standards subject to EPA review and approval (or
disapproval) under the Clean Water Act. Therefore, EPA did not propose
to promulgate any of the remaining provisions that EPA had previously
approved or that are not water quality standards.
For the convenience of the reader and to improve the readability of
the two documents to be incorporated by reference, EPA included in its
proposal a few minor text changes to the Phosphorus Rule and EFA in the
docket. These changes were identified by underline. EPA included these
few text changes in a submission filed with the Court and the Court
subsequently indicated that it would modify its April 2010 to reflect
these changes. EPA added text when deletion of the disapproved language
rendered the remaining text difficult to understand. For example, in
EFA section 10, EPA added text to restore language that existed prior
to enactment of EFA amendments. In these sections, EPA did not propose
to establish new or revised water quality standards with these text
changes. Similarly, for ease of readability, the docket versions of the
Phosphorus Rule and Amended Everglades Forever Act struck the
definitions of ``optimization'' (which corresponded to regulatory
language already disapproved) from sections 2(l) and 3(f), as discussed
in the proposed rule preamble.
The public was given an opportunity to review the proposed rule and
provide comments over a thirty-day period.
Comments: EPA received comments from eight separate commenters
including the two litigants in the District Court case and other
interested parties. A few commenters challenged EPA's authority to
promulgate this rule, arguing that the Agency lacks legal authority to
promulgate a rule after disapproval of water quality standards when the
remaining approved water quality standards meet CWA requirements. EPA
disagrees that it has no authority to promulgate water quality
standards following disapproval. CWA section 303(c) does not
specifically address the issue. It was reasonable and consistent with
the CWA for EPA to promulgate this final rule that identifies only
those provisions of Florida law that EPA has disapproved and that
therefore are not applicable water quality standards for purposes of
the Clean Water Act, where EPA concluded that the State should revise
its existing standards to remove the disapproved provisions and the
State failed to take such action. Otherwise, the provisions of the
revised State water quality standards that EPA disapproved would remain
applicable under State law. EPA's action will remove any potential for
confusion and identify the provisions of State law that EPA has
disapproved and that, therefore, are not in effect for federal CWA
purposes.
To the extent EPA would be promulgating as federal regulations
provisions of state water quality standards that EPA has approved (or
provisions associated with approved water quality standards that are
not themselves water quality standards), the CWA does not provide for
such action. The CWA provides that when EPA approves a new or revised
state water quality standard, ``such standard shall thereafter be the
water quality standard
[[Page 46301]]
for the applicable waters of the State.'' CWA section 303(c)(3). Only
if EPA disapproves a state water quality standard or makes a
determination that a new or revised water quality standard is necessary
to meet the requirements of the Clean Water Act under section
303(c)(4)(B) and the state fails to make the necessary changes, does
the Act direct EPA to promulgate such water quality standards for
navigable waters of the state. There are many provisions of the
Phosphorus Rule that EPA approved. EPA does not believe it would be
appropriate to promulgate those provisions as federal regulations.
Second, except for the disapproved provisions of the EFA
amendments, EPA has not approved or disapproved the remaining
provisions of the EFA (with one exception) as new or revised water
quality standards under the Clean Water Act. Therefore, it would not be
appropriate for EPA to promulgate such provisions as federal water
quality standards.
Copies of the public comments and the EPA's responses can be found
in the docket associated with this rulemaking (see instructions above
under General Information).
Final Rule: EPA has made no changes to its proposal in this final
rule. EPA believes that the incorporation by reference approach
described in the proposed rule, as well as the content of the proposed
rule, remain appropriate for promulgation.
For the convenience of persons reviewing this final rule, EPA has
included copies of the Phosphorus Rule and Amended Everglades Forever
Act in the docket that included the strikeout markings indicating the
language that EPA identifies as not being applicable water quality
standards for purposes of the CWA. The provisions of the Phosphorus
Rule and EFA that are not applicable water quality standards for
purposes of the CWA are summarized again here in Tables 1 and 2 below.
Table 1--62-302.540 Provisions of Florida Administrative Code (F.A.C.)
(Water Quality Standards for Phosphorus Within the Everglades Protection
Area) That Are Not Applicable Water Quality Standards for Purposes of
the Clean Water Act
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Section Specific provision or language
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(1)(a)............................. Entire paragraph.
(1)(b)(2).......................... Entire paragraph.
(2)(b)-(f)......................... Entire paragraphs and
subparagraphs.
(2)(h)............................. Entire paragraph.
(2)(l)............................. Entire paragraph.
(3)(a)-(b)......................... Entire paragraphs.
(3)(f)............................. Entire paragraph.
(3)(h)............................. Entire paragraph.
(4)(d)(2)(c)....................... Sentence only, ``If these limits
are not met, no action shall be
required, provided that the net
improvement or hydropattern
restoration provisions of
subsection (6) below are met.''
(5)(a)............................. Entire paragraph.
(5)(b)(2)-(3)...................... Entire paragraphs.
(5)(d)............................. Entire paragraph.
(6)(a)-(c)......................... Entire paragraphs and
subparagraphs.
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Table 2--Provisions of the Amended Everglades Forever Act (Florida
Statute 373.4592) That Are Not Applicable Water Quality Standards for
Purposes of the Clean Water Act
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Section Specific provision or language
------------------------------------------------------------------------
(2)(a)............................. Entire paragraph.
(2)(g)............................. Sentence 1, phrase ``and further
described in the Long-Term Plan''.
(2)(j)............................. Entire paragraph.
(2)(l)............................. Entire paragraph.
(2)(p)............................. Entire paragraph.
(3)(b)-(e)......................... Entire paragraphs.
(4)(a)............................. Sentence 9, phrase ``design,
construction, and implementation
of the initial phase of the Long-
Term Plan, including operation and
maintenance, and research for the
projects and strategies in the
initial phase of the Long-Term
Plan, and including.''
(4)(a)(4).......................... Sentence 1, phrase ``however, the
district may modify this schedule
to incorporate and accelerate
enhancements to STA 3/4 as
directed in the Long-Term Plan''.
(4)(a)(6).......................... Entire subparagraph.
(4)(e)(2).......................... Sentences 7, 8 and 9.
(4)(e)(3).......................... Sentence 3.
(10)............................... Sentence 1, phrase ``to implement
the pre-2006 projects and
strategies of the Long-Term
Plan.''
Sentence 1, phrase ``in all parts
of the Everglades Protection
Area''.
Sentence 1, phrase ``and moderating
provisions''.
(10)(a)............................ Entire paragraph.
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[[Page 46302]]
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) and is
therefore not subject to review under Executive Orders 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 merely clarifies the
water quality standards concerning the phosphorus rule and the Amended
EFA statute that are not water quality standards for purposes of the
CWA and does not impose any information collection burden 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.
As a result of the disapproval action by EPA in December 2009, the
Florida Department of Environmental Protection already needs to ensure
that permits it issues do not implement the provisions identified in
this rule because those provisions are not applicable water quality
standards for purposes of the CWA. In doing so, the State will have a
number of choices associated with permit writing. While Florida's
implementation of the rule (and EPA's earlier disapprovals) might
ultimately result in some new or revised permit conditions for some
dischargers, including small entities, EPA's action today would not
impose any of these as yet unknown requirements on small entities.
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
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. This action merely clarifies the water quality standards
concerning the Phosphorus Rule and the Amended EFA and does not impose
any burden on anyone. Therefore, this action is not subject to the
requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
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 clarifies the
water quality standards concerning the Phosphorus Rule and the Amended
EFA and does not apply to any government other than the State of
Florida.
F. Executive Order 13175
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000) because this is
an action in which the EPA has no discretion, i.e., EPA is mandated by
the Court to take this action. Thus, Executive Order 13175 does not
apply to this action. Nonetheless, consistent with the findings of the
Executive Order and in response to a request from the Miccosukee Tribe
submitted during the public comment period, EPA did choose to confer
with the Tribe.
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 the environmental health risks
or safety risks addressed by this action present a disproportionate
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 (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal 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 clarifies the water quality standards
concerning the Phosphorus Rule and the Amended EFA.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
[[Page 46303]]
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A Major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This rule will be effective September 4, 2012.
List of Subjects in 40 CFR Part 131
Environmental protection, Incorporation by reference, Indians--
lands, Intergovernmental relations, Reporting and recordkeeping
requirements, Water pollution control.
Dated: July 27, 2012.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, EPA amends 40 CFR part 131
as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The Authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
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2. Section 131.44 is added as follows:
Sec. 131.44 Florida.
(a) Phosphorus Rule. (1) The document entitled ``Florida
Administrative Code, Chapter 62-302, Surface Water Quality Standards,
Section 62-302.540, Water Quality Standards for Phosphorus Within the
Everglades Protection Area, Amended May 25, 2005, as annotated by EPA''
(Phosphorus Rule), is incorporated by reference as described in
paragraph (a)(2). EPA is not incorporating the full text of this
document, but correcting specified portions of the Phosphorus Rule as
directed by a federal district court as indicated by the strikeout
markings. The EPA is only incorporating by reference these crossed-out
portions in the Florida Administrative Code 62-302.540. The Director of
the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a). Copies of the document may be
inspected and obtained from the docket associated with this rulemaking
(Docket Number EPA-HQ-OW-2011-0515) at http://www.regulations.gov
electronically, at EPA's Water Docket (Address: 1301 Constitution
Avenue NW., EPA West, Room B102, Washington, DC 20460, telephone
number: 202-566-2426), at the National Archives and Records
Administration (NARA), and finally, on the EPA Web site associated with
this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm. For information on the availability of
this material at NARA, call 202-741-6030, or go to the following Web
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts and identifies the portions
of the document that have strikeout markings as portions of the
Phosphorus Rule that EPA disapproved on December 3, 2009, and that are
not applicable water quality standards for the purposes of the Clean
Water Act. Remaining portions of the Phosphorus Rule that EPA had
previously approved are applicable water quality standards for the
purposes of the Clean Water Act but are not codified as federal
regulations.
(2) In the Phosphorus Rule, strike the following text:
(i) The entire paragraph (1)(a);
(ii) The entire paragraph (1)(b)(2);
(iii) The entire paragraph and subparagraphs (2)(b), (2)(c),
(2)(d), (2)(e), (2)(e)(1), (2)(e)(2) and 2(f);
(iv) The entire paragraph (2)(h);
(v) The entire paragraph (2)(l);
(vi) The entire paragraphs (3)(a) and (3)(b);
(vii) The entire paragraph 3(f);
(viii) The entire paragraph (3)(h);
(ix) In (4)(d)(2)(c), the sentence, ``If these limits are not met,
no action shall be required, provided that the net improvement or
hydropattern restoration provisions of subsection (6) below are met.'';
(x) The entire paragraph (5)(a);
(xi) The entire paragraph (5)(b)(2) and (5)(b)(3);
(xii) The entire paragraph (5)(d);
(xiii) The entire paragraph (6), including subparagraphs (6)(a),
(6)(a)(1), (6)(a)(1)(a), (6)(a)(1)(b), (6)(a)(2), (6)(a)(3), (6)(a)(4),
(6)(a)(5), (6)(b), (6)(b)(1), (6)(b)(2), (6)(b)(3), and (6)(c).
(b) Amended Everglades Forever Act. (1) The document entitled
``Florida Statute, Title 28, Natural Resources; Conservation,
Reclamation, and Use, Section 373.4592, Everglades improvement and
management, effective July 1, 2008, also known as the ``Everglades
Forever Act,'' as annotated by EPA'' is incorporated by reference as
described in paragraph (b)(2). The EPA is not incorporating the full
text of this document, but correcting specified portions of the statute
as directed by the court as indicated by the strike out markings. The
EPA is only incorporating by reference these crossed-out portions in
the Florida Statute, the ``Everglades Forever Act.'' The Director of
the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a). Copies of the document may be
inspected and obtained from the docket associated with this rulemaking
(Docket Number EPA-HQ-OW-2011-0515) at http://www.regulations.gov
electronically, at EPA's Water Docket (Address: 1301 Constitution
Avenue NW., EPA West, Room B102, Washington, DC 20460, telephone
number: 202-566-2426), at the National Archives and Records
Administration (NARA), and finally, on the EPA Web site associated with
this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm. For information on the availability of
this material at NARA, call 202-741-6030, or go to the following Web
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts and identifies the portions
of the document that have strikeout markings as portions of the statute
that EPA disapproved on December 3, 2009, and that are not applicable
water quality standards for the purposes of the Clean Water Act.
Remaining portions of the statute that EPA had previously approved are
applicable water quality standards for the purposes of the Clean Water
Act but are not codified as federal regulations.
(2) In the Everglades Forever Act, strike the following text:
(i) The entire paragraph (2)(a);
(ii) In paragraph (2)(g), the phrase, ``and further described in
the Long-Term Plan.'';
(iii) The entire paragraph (2)(j);
(iv) The entire paragraph (2)(l);
(v) The entire paragraph (2)(p);
(vi) The entire paragraphs (3)(b), (3)(c), (3)(d) and (3)(e);
(vii) In sentence 9 of paragraph (4)(a), the phrase, ``design,
construction, and implementation of the initial phase of the Long-Term
Plan, including operation and maintenance, and research for the
projects and strategies in the initial phase of the Long-Term Plan, and
including'';
(viii) In sentence 1 of subparagraph (4)(a)(4), the phrase,
``however, the district may modify this schedule to incorporate and
accelerate enhancements to STA 3/4 as directed in the Long-Term
Plan;'';
(ix) The entire subparagraph (4)(a)(6);
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(x) In subparagraph (4)(e)(2), the entire sentences 7, 8 and 9;
(xi) In subparagraph (4)(e)(3), the entire sentence 3;
(xii) In sentence 1 of paragraph (10), the phrase, ``to implement
the pre-2006 projects and strategies of the Long-Term Plan'', the
phrase, ``in all parts of the Everglades Protection Area'', and the
phrase ``and moderating provisions'';
(xiii) The entire paragraph (10)(a).
(3) EPA is not incorporating the text annotations added by hand to
the Everglades Forever Act. These text inserts are included only for
the convenience of the reader and to improve the readability of the
document.
[FR Doc. 2012-18872 Filed 8-2-12; 8:45 am]
BILLING CODE 6560-50-P