[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14536]
[[Page Unknown]]
[Federal Register: June 16, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4999-7]
Notice of a Final List of Water Quality Limited Waterbodies in
the State of Minnesota
AGENCY: Environmental Protection Agency.
ACTION: Notice of a final Clean Water Act section 303(d) list for the
State of Minnesota.
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SUMMARY: The purpose of this notice is to announce the United States
Environmental Protection Agency's (USEPA) final decision with respect
to the list required of the State of Minnesota, under section 303(d) of
the Clean Water Act (CWA). On December 8, 1993, the USEPA published (58
FR 64584) a proposed list of waterbodies, subsequent to its
disapproval, on August 9, 1993, of portions of the list prepared by the
State of Minnesota. A total of 72 waterbodies have been identified as
appropriate waterbodies for the development of total maximum daily
loads (TMDLs), pursuant to section 303(d), 40 CFR part 130, and USEPA
guidance, as resources permit. An additional number of waterbodies have
been identified, for which implementation of a TMDL will be dependent
on a variety of events or actions outside the control of the State of
Minnesota. Copies of the lists may be obtained at the address provided
in the addresses section.
ADDRESSES: Persons wishing to obtain a copy of the lists may do so by
contacting Mr. Robert F. Pepin, U.S. Environmental Protection Agency,
Region 5, Water Division, 77 West Jackson Boulevard, Chicago, Illinois
60604, telephone (312) 886-1505; or Mr. Greg Gross, Division of Water
Quality, Minnesota Pollution Control Agency, 520 Lafayette Road, St.
Paul, Minnesota 55155, telephone (612) 296-7213.
FOR FURTHER INFORMATION CONTACT: Mr. Robert F. Pepin or Mr. Greg Gross
at the above addresses or telephone numbers.
SUPPLEMENTARY INFORMATION: Section 303(d) of the CWA requires that the
States identify lists of waterbodies for which TMDL development is
appropriate. Further, section 303(d) requires that the lists developed
by the States be submitted to the USEPA for review and approval or
disapproval. To the extent that the USEPA disapproves a State
submittal, section 303(d) of the CWA requires that the USEPA develop
and publish the list. The USEPA must also assure that public
participation in the formulation of a list of waterbodies is consistent
with 40 CFR part 25, and may publicly notice a State submittal for that
purpose as well.
The State of Minnesota had prepared several lists for the USEPA
review, and had submitted and subsequently withdrawn several of these.
On July 6, 1993, the USEPA received from Minnesota, a proposed list,
which contained some, but not all of the waterbodies which the USEPA
believed should be included on the list applicable to the State of
Minnesota. As a result, the USEPA issued, on August 9, 1993, a partial
approval of the list submitted by the State, approving the list to the
extent that it did include waterbodies which were appropriately
included on the list, but disapproving the submission in that it did
not include all waterbodies which would be subject to the requirements
of section 303(d).
Subsequently, USEPA developed a list of additional waterbodies
which it believed were subject to the requirements of section 303(d),
and published a notice to that effect on December 8, 1993 (58 FR
64584). The USEPA received written comments from four commenters,
including the Minnesota Pollution Control Agency (MPCA). These comments
are available for public inspection at the address listed above.
(A) Responses to Comments
In making its final determination, the USEPA has carefully
considered all comments received, and has revised its lists
accordingly. In particular, changes have been made based upon the
following.
(1) The MPCA commented that 23 stream segments were not identified
on the proposed list, and should be included.
In alternate years, the State of Minnesota, pursuant to section
305(b) of the CWA, provides a report to Congress, on the health of
waters within the State. In its 1992 report, Minnesota had identified
the 23 stream segments in question, as impaired, however, the USEPA had
not included these segments on its proposed list, believing the data to
be old and somewhat unreliable. Upon further review, however, it is
apparent that these segments are contiguous with other waterbodies
included upon the USEPA's proposed list, and that these other
waterbodies are scheduled for TMDL development within the next few
years. As MPCA intends to develop these TMDLs for the whole waterbody,
the MPCA believes that the 23 segments the USEPA had originally
proposed to exclude should also be listed. The USEPA agrees.
(2) The MPCA commented that 65 segments that were identified by the
USEPA in the proposed list should not be included because the data used
to support listing does not reflect current conditions.
The information provided by the commenter indicates that of the 65
segments, remedial actions have been taken on 51 segments. In addition,
exceedences of water quality standards were infrequent for five of the
65 segments, and did not support a conclusion that the waterbodies were
impaired. Finally, the impairment determination for nine segments was
based on data that were typically five to 10 years of age, and was not
thought to be indicative of current conditions. The USEPA agrees that
these waterbodies should not be listed pursuant to section 303(d).
(3) The MPCA commented that nine waterbodies that were identified
in the proposed list should not be listed because the stated impairment
is due to ubiquitous metals, for which there is no evidence, based upon
biological sampling, that designated uses are impaired.
For each of these waterbodies, the MPCA provided documentation that
the impairments described were based upon one or more of the following:
Rare excursions of the water quality standards; ambient levels of the
various constituents higher than expected for the ecoregion, but no
water quality standards exceedences measured; or misinterpretation by
the USEPA of the data provided in the 305(b) report. The USEPA agrees
with the MPCA that cause does not exist for listing these waterbodies.
(4) The MPCA commented that approximately 245 segments of
waterbodies which were included on the proposed USEPA list, should be
excluded for a variety of reasons.
All of the identified segments are segments which were listed
because of the presence of a fish consumption advisory for mercury or
polychlorinated biphenyls (PCBs). The MPCA commented that the sole, or
primary source of mercury or PCBs to these waterbodies is airborne
deposition, and that where control of these sources is outside the
State, the State is unable to develop a TMDL. These segments,
therefore, are not appropriate candidates for TMDL development at this
time. The USEPA agrees that technology based standards imposed under
the Clean Air Act which affect sources external to the State of
Minnesota may obviate the future need for TMDL development in these
waterbodies. A separate list of these waterbody segments can be
obtained by contacting the USEPA at the address provided above.
It is important to note that not all waterbodies for which fish
consumption advisories exist fall into the category discussed above.
There are certain waterbodies with fish consumption advisories, and for
which TMDLs have been, or can be successfully developed at this time.
These are not included in the 245 waterbodies on which the MPCA
provided comments.
(5) Two other commenters believed that the proposed list is
inadequate because it fails to identify all water quality limited
segments within the State of Minnesota. Where the State has failed to
do so, one of the commenters stated there is a mandatory duty to
identify all water quality-limited segments, and include them on the
list of waterbodies for which TMDL development is appropriate.
The USEPA interprets section 303(d) to require the identification
of water quality-limited waterbodies for which TMDLs are appropriate.
Such identification is to be based on existing and readily available
data (40 CFR 130.7(b)(5)); consequently, there are no requirements
within the Statute for additional monitoring or analysis. Since 40 CFR
130.7(d)(1) requires the biennial submission of revised section 303(d)
lists to the USEPA for approval, this provision recognizes, that
information will become available in the future, which can be used to
revise and update the decisions made under section 303(d). This
provision supports the USEPA's position that current listings should be
based on currently available information. The submission every 2 years
of a section 303(d) list addresses this issue by allowing changes to
the lists to reflect additional identification of impaired waterbodies,
and allows for removal of waterbodies once standards are attained or
TMDLs developed.
Pursuant to section 305(b) of the CWA, States must prepare, on a
biennial basis, a report to Congress which assesses the status of State
waters. 40 CFR 130.7(b)(5) explicitly states that the section 305(b)
report should be considered when developing the section 303(d) list. In
preparation of the December 8, 1993, proposed list, Minnesota's 1992
305(b) report was extensively used. All waterbodies listed as impaired
in Appendix 1 of that report were considered for listing. For reasons
provided in the December 8, 1992, FR notice, specific comments received
in response to that notice, and elsewhere in this notice some
waterbodies that were listed as impaired in the Fiscal Year 1992
section 305(b) report were not included in today's list.
(6) One commenter stated that even if the only available data are
older than five years, if those data indicate water quality
impairments, then the subject waterbodies should be listed on the
section 303(d) list.
Throughout its regulations and guidance the USEPA has consistently
stated that all information should be used to develop a section 303(d)
list. In using available information, however, it is imperative to
consider its accuracy in order to assure that technically defensible
determinations can be developed. The USEPA believes that data that are
older than five years, or impairment assessments based on a subjective
analysis, carry a large degree of uncertainty as to whether the
impairment is still valid. As such information of this kind must be
considered in light of all available information and cannot represent a
prima facie basis for listing.
(7) One commenter stated that the USEPA must actively solicit all
interested parties for information on which to develop a section 303(d)
list.
Regulations governing the solicitation of public comment may be
found at 40 CFR part 25. The USEPA believes that the publication of the
proposed list in the December 8, 1993, FR notice fulfilled those
requirements, and served as adequate solicitation of comment of all
interested parties. In response to that publication the USEPA received
four comment letters, one by a State agency and three by public
interest groups. These comments have been thoroughly considered in the
development of the final list.
(8) One commenter stated that the proposed list does not meet the
requirements of section 303(d) because it does not contain specific,
calculated TMDLs for each waterbody listed.
Section 303(d)(1)(A) requires the development of a list of
waterbodies for which technology-based effluent limits are not
stringent enough to achieve water quality standards. Section
303(d)(1)(C) requires the development of TMDLs for the waters listed
pursuant to section 303(d)(1)(A). The USEPA has interpreted the Act to
require the development of the section 303(d) list prior to actually
establishing TMDLs. The USEPA believes that to delay listing until the
TMDLs are all completed would either lead to deceptively short lists of
waterbodies, or would delay the process indefinitely. Because TMDL
development can be a complex activity, involving many years of effort
particularly in cases where specific stream conditions must be
analyzed, or model development and calibration must be achieved, only a
few TMDLs can be developed at any particular time. Even so, it is also
recognized that remedial actions can take place before a TMDL is
developed, therefore the Agency believes that the listing process
should go forward as the initial step in order to encourage action even
though actual TMDL development may take place later. It is reasonable,
therefore, to conclude that development of individual TMDLs must follow
list development.
(9) One commenter stated that the proposed list does not contain
any schedule for TMDL development for the next two years, and that the
criteria by which the USEPA prioritized waters on the proposed list
should focus on the protection human health.
The December 8, 1993, Federal Register notice announced as being
available for public review and comment a proposed section 303(d) list
for Minnesota consisting of 447 water quality-limited segments. The
notice further provided that the priority for TMDL development reflects
that contained in the September 16, 1993, section 303(d) list submitted
by the Minnesota Pollution Control Agency. In that submittal, the TMDLs
identified for development through April 1994 were the Minnesota River
and the Redwood River. These waterbodies continue to be listed as high
priority for TMDL development. Because the prioritization of TMDLs as
well as the resources and personnel to develop them are largely under
the control of the State, the USEPA believes it is appropriate to defer
to this State prioritization. It should be noted that these priorities
are subject to annual review by the USEPA and the State in the annual
program planning process under 40 CFR part 130 and as a result of the
biennial updates of the 305(b) lists required under 40 CFR part 131 and
section 305(b) of the CWA.
(10) One commenter stated that the Mississippi River from the
Minneapolis/St. Paul metropolitan area downstream to the Iowa border
should be listed as high priority.
The USEPA agrees that this waterbody is an important resource. In
compliance with requirements of an National Pollutant Discharge
Elimination System permit issued to the Metropolitan Waste Control
Commission (MWCC), studies of phosphorus, the identified pollutant of
concern, are being conducted by both the MWCC and the Minnesota
Pollution Control Agency on the waterbody to define better the sources
of the impairments and to ascertain needed remedial actions. Current
information suggests that much of the loading of phosphorus is
originating in the Minnesota River basin, which is high priority for
TMDL development. It is anticipated that remedial actions in the
Minnesota River basin will have significant positive impact on
magnitude of impairments in the Mississippi River. It is anticipated
that upon the completion of the studies and implementation of
additional controls required through the NPDES permit and the results
of the TMDL being developed for the Minnesota River, downstream impacts
on the Mississippi River will be reduced such that this portion of the
River does not meet the requirements for listing under section 303(d).
Therefore, this waterbody continues to be listed as low priority on the
section 303(d) list.
(11) One commenter questioned why only two waterbodies were listed
on the section 303(d) list.
In the December 8, 1993, FR notice, USEPA proposed a list of 447
waterbody segments. This was in addition to the two waterbodies which
the State of Minnesota has identified as appropriate for TMDL
development. While the USEPA agrees with the State of Minnesota, that
those two waterbodies warrant listing pursuant to 303(d), the USEPA
also believes, that additional waterbodies should be listed, and for
that reason has proceeded with today's notice.
(12) One commenter recommended that the following waterbodies be
listed on the section 303(d) list as high priority for TMDL
development.
--All Minnesota Outstanding Resource Value Waters
--All Minnesota designated trout streams and trout lakes
--All Minnesota designated canoe trails
--All Federal or Minnesota designated wild, scenic, and recreational
rivers
--All waterbodies within any National Wildlife Refuge
--The entire length of the Mississippi River (presumed to include
sections both upstream and downstream of the Minneapolis/St. Paul
metropolitan area
--Lake Superior
As stated above, the resources and personnel necessary to develop
TMDLs are largely under the control of the State. In addition, the
State's proximity to its public allows it to evaluate priorities in
light of the public need more readily than USEPA. Consequently the
USEPA believes it is appropriate to defer to the State in the matter of
prioritization of waterbodies for TMDL development.
(B) Revisions to the Proposed Notice
As a result of the public comments received and continuing review
of the proposed notice by the USEPA, the following changes have been
made to the final identification of the section 303(d) water quality-
limited segments for the State of Minnesota:
(1) The final list of waterbodies for which TMDL development would
be appropriate has been revised to include the 23 additional steam
segments which the State has requested be included on the list, due to
proximity to, and influence upon, other waterbodies for which TMDLs are
being developed.
(2) Waterbodies for which fish consumption advisories exist, and
for which remedial measures lie outside the control of the State of
Minnesota have been separately identified.
(3) The final list of waterbodies for which TMDL development is
appropriate excludes 65 stream segments included in the proposed list,
for which the State has provided documentation that the information
leading to the USEPA's decision to include these segments on the
proposed list was not based on the most current information, and the
more current information reveals that TMDLs are no longer appropriate.
(4) The final list excludes nine stream segments identified in the
State's comments which were described as meeting the designated uses,
since the exceedences of numeric water quality criteria noted by the
USEPA as the basis for our proposal to include these segments on the
303(d) list were due to naturally occurring background concentrations.
(C) Final Notice
This notice is being issued pursuant to section 303(d)(2) of the
CWA. Under this section, the USEPA is required to publish an
identification of water quality-limited segments if a state submission
is disapproved. The disapproval of the Minnesota submission occurred on
August 9, 1993.
This notice identifies 72 water quality limited waterbodies for
which TMDL development is appropriate and further identifies three
waterbodies for which TMDL development is scheduled to be initiated
over the next two years. This notice further identifies 245 waterbodies
for which TMDL development is not feasible at this time. This
constitutes USEPA's final determination.
Dated: June 2, 1994.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 94-14536 Filed 6-15-94; 8:45 am]
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