[Federal Register Volume 60, Number 244 (Wednesday, December 20, 1995)] [Proposed Rules] [Pages 65614-65616] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-30985] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [FRL-5399-8] Proposed Removal of Federal Water Quality Standards for Surface Waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: In December 1994, under the authority of the Clean Water Act (CWA), the Environmental Protection Agency (EPA) promulgated a rule establishing four sets of water quality criteria to protect the designated uses for the surface waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California (Bay/Delta). Subsequent to this promulgation, the State of California adopted water quality standards for the Bay/Delta and submitted them to EPA for approval. On September 26, 1995, the Regional Administrator for EPA Region IX approved the state water quality standards as protective of the designated uses for the relevant waterbodies. Currently, the State of California is in the process of implementing these state-adopted and EPA-approved water quality standards through a state water rights hearing [[Page 65615]] process. Accordingly, EPA's promulgated water quality standards are no longer needed to meet the requirements of the Clean Water Act. Therefore, EPA proposes to remove the rule. DATES: Comments on this proposal will be accepted until March 19, 1996. ADDRESSES: Comments should be addressed to Palma Risler, Water Management Division, Environmental Protection Agency, 75 Hawthorne Street, San Francisco, California 94105. FOR FURTHER INFORMATION CONTACT: Palma Risler, Water Management Division, Environmental Protection Agency, 75 Hawthorne Street, San Francisco, California 94105, 415-744-2017. The public record for this rulemaking is available through this contact at this same address. SUPPLEMENTARY INFORMATION: Background In December 1994, under the authority of section 303 of the CWA, EPA promulgated a rule establishing four sets of water quality criteria to protect the designated uses for the surface waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California (Bay/Delta)(60 FR 4664, January 24, 1995). These criteria consisted of estuarine habitat criteria (consisting of a salinity requirement measured at three different locations in Suisun Bay for a specified number of days during the critical spring months), fish migration criteria (consisting of an indexed value representing successful fish migration on the Sacramento River and the San Joaquin River), fish spawning criteria on the lower San Joaquin River (consisting of a salinity requirement measured at various points in April and May), and narrative criteria protecting the brackish tidal marshes in Suisun Marsh. A description of these criteria are provided in the preamble to the final rule and in the rulemaking record. Prior to federal promulgation of the water quality standards for the Bay/Delta, EPA, the Bureau of Reclamation and Fish and Wildlife Service of the U.S. Department of Interior, and the National Marine Fisheries Service of the U.S. Department of Commerce worked with the State of California to attempt to resolve the water quality issues in the Bay/Delta underlying EPA's rulemaking. This effort led to an agreement, informally called the ``Bay Delta Accords'' signed by the federal agencies, California state agencies, and interested stakeholders. These Bay Delta Accords, signed by all the parties in December 1994, articulate both substantive measures and processes to protect the Bay/Delta estuary, and laid out the framework for the adoption, review, and approval of the new State standards. On May 22, 1995, the California State Water Resources Control Board adopted water quality standards for the Bay/Delta in its water quality control plan (1995 WQCP). After these revised standards were approved by the California Office of Administrative Law in accordance with California law, the revised standards were submitted to EPA for its review under section 303(c) of the CWA on July 27, 1995. On September 26, 1995, the EPA Regional Administrator for Region IX approved these standards as protective of the designated uses for the Bay/Delta. The reasons for this approval are set forth in the approval letter and are supplemented by additional information in the rulemaking record. Both the approval letter and this supporting information are included in the public record for this rulemaking. The CWA gives the states primary responsibility for adopting water quality standards. Throughout the rulemaking process to promulgate federal water quality standards for the Bay/Delta, EPA has maintained that it would withdraw the federal standards if the State adopts and submits standards to the Agency that meet the requirements of the Act. EPA also indicated this intent in the Bay Delta Accords. EPA recognizes that with the exception of the Suisun Bay narrative criteria,1 the State's 1995 WQCP provisions are not precisely identical to the federal promulgation. Nevertheless, for the reasons set forth in EPA's approval, the Technical Support Memorandum dated September 21, 1995, underlying the approval, and this rulemaking record, EPA found that the provisions in the 1995 WQCP protect the designated uses of the estuary and otherwise meet the requirements of the CWA. The state is currently implementing these standards. Accordingly, the EPA rule is no longer needed to meet the requirements of the CWA, and EPA proposes to remove the rule at 40 CFR 131.37. \1\ The State's 1995 WQCP includes a description of ``beneficial uses'' of the Bay/Delta waters and a set of ``objectives'' that protect those beneficial uses. In its review of the 1995 WQCP, and in keeping with past practice, EPA is treating the State's beneficial uses and objectives as the ``designated uses'' and ``criteria'' required under the federal Clean Water Act. To avoid confusion, this document will generally use the federal terms ``designated uses'' and ``criteria.'' --------------------------------------------------------------------------- EPA understands that the 1995 WQCP is the subject of state court litigation raising both procedural and substantive challenges to the plan. Although EPA believes that the State Board should ultimately prevail in this litigation, there is always a possibility in such litigation for adverse court actions affecting the 1995 WQCP. Should EPA proceed to final withdrawal of the federal water quality standards as proposed in this notice, and the 1995 WQCP is subsequently rejected or remanded, there would be no water quality standards in effect in California carrying out the Bay Delta Accords. EPA intends to work with the State so that if this situation were to arise, the requirements of the Clean Water Act and the purposes of the Bay Delta Accords are achieved. Regulatory Assessment Requirements A. Executive Order 12866 Under Executive Order 12866 (56 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is ``significant'' and therefore subject to all the requirements of the order (i.e, Regulatory Impact Analysis and review by the Office of Management and Budget). Under section 3(f), the order defines ``significant'' as those actions likely to lead to a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also known as ``economically significant''); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this order. Pursuant to the terms of this order, EPA has determined that the withdrawal of this rule would not be ``significant.'' B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is certifying that a withdrawal of this rule would not have significant impact on a substantial number of small businesses. C. Paperwork Reduction Act There are no information collection requirements associated with the withdrawal of this rule that are covered under the provisions of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. [[Page 65616]] D. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, 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. Today's proposal contains no Federal mandates under the regulatory provisions of Title II of the UMRA for State, local, or tribal governments or the private sector. In fact, removing the federal water quality standards for the Bay/Delta will facilitate the State of California's implementation of the state adopted and EPA-approved water quality standards for the Bay/Delta. List of Subjects in 40 CFR Part 131 Environmental protection, Indians--lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control, Water quality standards, Water quality criteria. Dated: December 14, 1995. Carol M. Browner, Administrator. Part 131 of title 40 of the Code of Federal Regulations is proposed to be amended as follows: PART 131--[AMENDED] 1. The authority citation for part 131 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. Sec. 131.37 [Removed and reserved] 2. Section 131.37 is removed and reserved. [FR Doc. 95-30985 Filed 12-19-95; 8:45 am] BILLING CODE 6560-50-P