[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Proposed Rules]
[Pages 74449-74452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29800]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2009-0596; FRL-9759-1]
RIN 2040-AF41
Water Quality Standards for the State of Florida's Lakes and
Flowing Waters; Proposed Rule; Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; proposed stay.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to
temporarily stay our regulation the ``Water Quality Standards for the
State of Florida's Lakes and Flowing Waters; Final Rule'' (inland
waters rule) to November 15, 2013. EPA's inland waters rule currently
includes an effective date of January 6, 2013, for the entire
regulation except for the site-specific alternative criteria provision,
which took effect on February 4, 2011. This proposed stay of its
regulations is until November 15, 2013, does not affect or change the
February 4, 2011, effective date for the site-specific alternative
criteria provision.
DATES: Comments must be received on or before December 28, 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
[[Page 74450]]
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:
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Examples of potentially
Category affected entities
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Industry............................... Industries discharging
pollutants to lakes and
flowing waters in the State of
Florida.
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.
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This table is not intended to be exhaustive, but rather provides a
guide for entities that may be affected by this action. Other types of
entities not listed in the table, such as nonpoint source contributors
to nitrogen and phosphorus pollution in Florida's waters may be
indirectly 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 indirectly 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
75761, 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 translated 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.) The final inland waters rule 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.
Two portions of EPA's original inland waters rule--numeric nutrient
criteria for Florida's streams and default downstream protection values
(DPVs) for unimpaired lakes--were remanded to EPA on February 18, 2012
by the U.S. District Court for the Northern District of Florida (FWF v.
Jackson, 4:08-cv-00324-RH-WCS). Per the terms of a Consent Decree, EPA
is required to sign proposed criteria for these remanded portions by
November 30, 2012 and to
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sign a notice of final rulemaking for such portions by August 31, 2013.
III. Stay of 40 CFR 11.43 (a)-(d)
A. Rationale for Staying 40 CFR 131.43 (a)-(d) until November 15, 2013
As stated in the rule itself (75 FR 75761, December 6, 2010), the
inland waters rule was originally 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.
However, after securing approval from the district court judge
presiding over the Consent Decree, EPA published an extension of the
March 6, 2012 effective date of the rule for four months to July 6,
2012 (77 FR 13497) to provide time for the Florida Department of
Environmental Protection (FDEP) to adopt and submit its final nutrient
rules to EPA for review and approval or disapproval under CWA section
303(c). FDEP officially submitted its final nutrient rules to EPA on
June 13, 2012. On July 6, 2012 (77 FR 39949), after securing approval
from the district court judge presiding over the Consent Decree, EPA
published a six-month extension of the July 6, 2012 effective date of
the rule to January 6, 2013 in order to avoid the confusion and
inefficiency that could occur should Federal criteria become effective
while EPA reviewed the recently adopted and submitted State nutrient
rules for approval or disapproval under CWA section 303(c).
FDEP's rules include numeric criteria for all freshwater lakes, all
springs, some inland flowing waters, and certain estuaries, as well as
narrative provisions addressing protection of downstream waters. EPA
reviewed FDEP's nutrient rules, in conjunction with the supporting
documentation provided, and approved FDEP's rules pursuant to section
303(c) of the CWA. EPA's approval letter is available at: http://www.epa.gov/lawsregs/rulesregs/florida_index.cfm.
FDEP's numeric nutrient criteria apply to a subset of flowing
waters covered by EPA's January 14, 2009 determination and the Consent
Decree; therefore, EPA must propose federal criteria for those flowing
waters not covered by FDEP's rule. In a separate action, EPA is re-
proposing federal criteria that were remanded to EPA on February 18,
2012, that would apply only to those flowing waters not covered by
Florida's newly approved water quality standards.
However, at this time, implementation of Florida's EPA-approved
rules is unclear. A provision included in Florida's Rule, specifically
subsection 62-302.531(9), F.A.C., casts some doubt as to whether the
newly approved state water quality standards will go into effect if EPA
proposes and promulgates numeric nutrient criteria for streams not
covered by the State water quality standards. Therefore, it is unclear
whether an EPA proposal to ``gap fill,'' or establish numeric criteria
for nutrients for Florida flowing waters that FDEP does not cover in
its Rule, would trigger 62-302.531(9), F.A.C. and result in much of
Florida's newly approved state water quality standards not taking
effect. See 62-302.531(9), F.A.C. In addition, due to a recent
administrative challenge filed in the State of Florida Department of
Administrative Hearings, there is uncertainty as to whether FDEP will
be able to implement its newly approved state water quality standards
consistent with FDEP's ``Implementation of Florida's Numeric Nutrient
Standards'' (September 2012), a document describing how FDEP will
implement its standards that EPA relied on in its approval.
This stay would provide EPA time to clarify implementation of
Florida's rules approved by EPA under CWA section 303(c) and take
corresponding final action on EPA's proposal for the remanded portions
of the inland waters rule (streams and default downstream protection
values (DPVs) for unimpaired lakes), for which a notice of final
rulemaking action must be signed by August 31, 2013, and which EPA
expects would take effect on or around November 15, 2013. In addition,
the stay would provide EPA time to initiate rulemaking to withdraw the
corresponding Federal criteria for freshwater lakes and springs if
Florida's criteria for freshwater lakes and springs will be implemented
by the State, e.g., if 62-302.531(9), F.A.C. is not triggered.
If, following consideration of public comment, EPA takes final
action to stay these provisions, these provisions will be stayed until
November 15, 2013. For more information on these actions, go to http://www.epa.gov/region4/water/wqs/index.html.
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 stays certain sections 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 stays certain sections
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
This proposed rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. This proposed rule merely stays certain sections of an already
promulgated regulation.
This proposed rule 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. This proposed
rule does not establish any requirements that are applicable to small
entities, but rather merely stays
[[Page 74452]]
certain sections of already promulgated requirements.
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 stays certain
sections 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.
This proposed 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 stays certain sections 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 stays certain sections of already
promulgated requirements.
List of Subjects in 40 CFR Part 131
Environmental protection, Florida, Nitrogen/phosphorus pollution,
Nutrients, Water quality standards.
Dated: November 30, 2012.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, 40 CFR part 131 is
proposed to be amended as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--Federally Promulgated Water Quality Standards
2. Effective [DATE OF PUBLICATION IN THE FEDERAL REGISTER OF FINAL
RULE], 40 CFR 131.43(a)--(d) are stayed until November 15, 2013.
[FR Doc. 2012-29800 Filed 12-13-12; 8:45 am]
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