02-32582. Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

Today's action proposes to withdraw the final rule entitled “Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation (“the July 2000 rule”) published in the Federal Register on July 13, 2000. The July 2000 rule amended and clarified existing regulations implementing a section of the Clean Water Act (CWA), which requires States to identify waters that are not meeting applicable water quality standards and to establish pollutant budgets, called Total Maximum Daily Loads (TMDLs), to restore the quality of those waters. The July 2000 rule also amended EPA's National Pollutant Discharge Elimination System (“NPDES”) regulations to include provisions addressing implementation of TMDLs through NPDES permits. The July 2000 rule has never become effective; it is currently scheduled to take effect on April 30, 2003. Regulations that EPA promulgated in 1985 and amended in 1992 remain the regulations in effect for implementing the TMDL Program. Today, EPA is proposing to withdraw the July 2000 rule, rather than allow it to go into effect or again propose to extend its effective date. EPA believes that significant changes would need to be made to the July 2000 rule before it could serve as the blueprint for an efficient and effective TMDL Program. Furthermore, EPA needs additional time beyond April 2003 to decide whether and how to revise the currently-effective regulations implementing the TMDL Program in a way that will best achieve the goals of the CWA.

DATES:

Written comments on this proposed rule should be submitted by January 27, 2003. Comments provided electronically will be considered timely if they are submitted by 11:59 p.m. January 27, 2003.

ADDRESSES:

Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in section C, regarding Additional Information for Commenters of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

For information about today's proposal, contact: Francoise M. Brasier, U.S. EPA Office of Wetlands, Oceans and Watersheds (4503T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone [phone].

SUPPLEMENTARY INFORMATION:

A. Authority

Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303, 305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g), 1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, and 1373.

B. Entities Potentially Regulated by the Proposed Rule

Table of Potentially Regulated Entities

Category	Examples of potentially regulated entities
Governments	States, Territories and Tribes with CWA responsibilities.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether you may be regulated by this action, you should carefully examine the applicability criteria in § 130.20 of title 40 of the Code of Federal Regulations. If you have any questions regarding the applicability of this action to you, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

C. Additional Information for Commenters

1. How Can I Get Copies of This Document and Other Related Information ?

a. Docket. EPA has established an official public docket for this action under Docket ID No. OW-2002-0037. 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 B-102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 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 [phone], and the telephone number for the Water Docket is [phone]. For access to docket materials, please call ahead to schedule an appointment. A reasonable fee may be charged for copying.

b. Electronic Access. 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.epa.gov/​edocket to submit or 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. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in the preceding section C.1.a.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

2. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comments. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. Commenters who want EPA to acknowledge receipt of their comments should include a self-addressed, stamped envelope.

a. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. 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.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/​edocket and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. OW-2002-0037. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to [e-mail]., Attention Docket ID No. OW-2002-0037. Electronic comments must be submitted as a WordPerfect 5.1, 6.1, or 8 file or as an ASCII file, avoiding the use of special characters. Electronic comments on this action may be filed on line at many Federal Depository Libraries. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in section C.2.b., which follows. These electronic submissions will be accepted in WordPerfect 5.1, 6.1 or 8 file or an ASCII file format. Avoid the use of special characters and any form of encryption.

b. By Mail. Send an original and three copies of your comments and enclosures (including references) to: Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No. OW-2002-0037.

c. By Hand Delivery or Courier. Deliver your comments to: the Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. OW-2002-0037. Such deliveries are only accepted during the Docket's normal hours of operation from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays as identified in section C.1.a.

d. By Facsimile. No facsimiles (faxes) will be accepted.

3. How Should I Submit CBI To the Agency?

Do not submit information through EPA's electronic public docket or by e-mail that you consider to be CBI. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI. (If you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

4. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

• Explain your views as clearly as possible.
• Describe any assumptions that you used.
• Provide any technical information and/or data you used that support your views.
• If you estimate potential burden or costs, explain how you arrived at your estimate.
• Provide specific examples to illustrate your concerns.
• Offer alternatives.
• Make sure to submit your comments by the comment period deadline identified.
• To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

I. Basis for Today's Action and Request for Comment

A. What Is the Statutory and Regulatory Background for Today's Action?

TMDLs are one of the many tools Congress authorized in the CWA to help achieve the Act's main objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” (CWA section 101(a)). Section 303(d) of the CWA requires States to identify and establish a priority ranking for waters for which technology-based effluent limitations required by section 301 are not stringent enough to implement applicable water quality standards, establish TMDLs for the pollutants causing impairment in those waters, and submit to EPA, from time to time, the list of impaired waters and TMDLs. EPA must review and approve or disapprove lists and TMDLs within 30 days of the time they are submitted. If EPA disapproves a list or a TMDL, EPA must establish the list or TMDL. In addition, some courts have interpreted the statute as requiring EPA to establish lists and TMDLs when a State fails to do so.

Listing impaired waters and establishing TMDLs for waters impaired by pollutants from point and nonpoint sources does not, by itself, create any new or additional implementation authorities to control point or nonpoint sources. Section 303(d) of the Act requires that TMDLs “be established at a level necessary to implement the applicable water quality standards,” and section 303(d)(2) requires a State to incorporate TMDLs into its “current plan” under section 303(e). Under the section 303(e) process, States develop and update state-wide water quality management (WQM) plans, produced in accordance with sections 208 and 303(e) of the Act, to direct implementation of the requirements of the Act.

Under CWA section 402, the NPDES Program regulates the “discharge of a pollutant,” other than dredged or fill materials from a “point source” into “waters of the United States.” The CWA and NPDES regulations define “discharge of a pollutant,” “point source,” and “waters of the United States.” The NPDES Program is administered at the Federal level by EPA unless a State, tribe or U.S. Territory assumes the program after receiving approval by the Federal government. Currently, 45 States have received approval to administer the NPDES Program in their States. Under section 402, discharges of pollutants to waters of the United States are authorized by an individual NPDES permit or a general permit applicable to multiple similar facilities or activities. NPDES permits commonly contain numerical limits on the amounts of specified pollutants that may be discharged and may specify best management practices (BMPs) designed to minimize water quality impacts. These numerical effluent limitations and BMPs or other non-numerical effluent limitations implement both technology-based and water quality-based requirements of the Act. Technology-based limitations represent the degree of control that can be achieved by point sources using various levels of pollution control technology. If necessary to achieve or maintain compliance with applicable water quality standards, NPDES permits must contain water quality-based limitations more stringent than the applicable technology-based requirements. One basis for water quality-based effluent limits in NPDES permits is a wasteload allocation from a TMDL. See 40 CFR 122.44(d)(1)(vii). The NPDES Program regulations appear at 40 CFR parts 122-125.

EPA issued regulations governing identification of impaired waters and establishment of TMDLs in 1985 and revised them in 1992 (§§ 130.2 and 130.7). Among other things, these currently effective regulations provide that:

• States must identify those waters still requiring TMDLs because technology-based effluent limitations required by the CWA or more stringent effluent limitations and other pollution controls (e.g., management measures) required by local, State, or Federal authority are not stringent enough to implement applicable water quality standards (WQS) (§ 130.7(b)(1));
• These lists of waters not meeting WQS must be submitted to EPA every two years (on April 1 of every even-numbered year) (§ 130.7(d)(1));
• The lists must include an identification of the pollutant or pollutants causing or expected to cause the impairment, and a priority ranking of the waters that identifies the waters targeted for TMDL development in the next two years (§ 130.7(b)(4));
• States, in developing lists, must assemble and evaluate all existing and readily available water quality-related data and information (§ 130.7(b)(5));
• States must submit with each list a description of the methodology used to develop the list and provide EPA with a rationale for any decision not to use any existing and readily available water quality-related data and information (§ 130.7(b)(6));
• A TMDL is the sum of individual wasteload allocations for point sources (WLA), load allocations for nonpoint sources and natural background (LA). Wasteload allocations are defined as the portion of a receiving water's loading capacity that is allocated to one of its point sources of pollution. (§ 130.2 (h) and (i));
• Load allocations are defined as the portion of a receiving water's loading capacity that is attributed to nonpoint sources of pollution or natural background. They are best estimates of the loading, which can range from reasonably accurate estimates to gross allotments. Where possible, natural, background and nonpoint source loads should be distinguished (§ 130.2(g));
• TMDLs must be established at levels necessary to attain and maintain the applicable narrative and numerical water quality standards with seasonal variations and a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality (§ 130.7(c)(1));
• If best management practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, the wasteload allocations can be made less stringent allowing for nonpoint source control tradeoffs (§ 130.2(i));
• EPA must approve or disapprove lists and TMDLs within 30 days of submission. If disapproved, EPA must establish a list or a TMDL within 30 days (§ 130.7(d)(2));
• The process for involving the public in the development of lists of impaired waters and TMDLs must be described in the State's Continuing Planning Process (CPP) (§ 130.7(a));
• Under proper technical conditions, TMDLs can be calculated for all pollutants (43 FR 60665).

The 1985 regulation also identifies specific elements that comprise the WQM plan, including the “identification of implementation measures necessary to carry out the plan, including financing, the time needed to carry out the plan, and the economic, social and environmental impact of carrying out the plan in accordance with section 208(b)(2)(E)” (§ 130.6(c)(6)). Once approved by EPA, TMDLs are incorporated into these State WQM plans (§ 130.7(d)(2)). Permitting authorities implement wasteload allocations included in a TMDL through enforceable water quality-based discharge limits in NPDES permits authorized under section 402 of the CWA. The primary mechanism for implementing nonpoint source load allocations within TMDLs is through the State section 319 nonpoint source management program, coupled with a wide variety of other State, local, tribal, and Federal programs (which may be regulatory, non-regulatory, or incentive-based, depending on the program), as well as voluntary action by committed citizens.

B. Why Did EPA Promulgate the July 2000 Rule?

On July 13, 2000, EPA published a final rule revising the TMDL regulations previously promulgated in 1985 and revised in 1992 (65 FR 43586). In 1996, the Agency determined that there was a need for a comprehensive evaluation of implementation of section 303(d) requirements. The reasons for this need were threefold. First, EPA was concerned with the lack of progress in the program despite the regulations issued by EPA in 1985 and 1992, and a series of policy memoranda including a 1997 request that States work to improve the rate of establishing TMDLs. Second, stakeholders had raised concerns with the lack of clarity and consistency in the program. Third, environmental and public interest organizations had started filing lawsuits alleging that EPA should be held accountable, under the CWA, for its failure to oversee and supplement inadequate State 303(d) listing and TMDL establishment efforts.

EPA convened a committee under the Federal Advisory Committee Act (TMDL FACA Committee) to undertake such an evaluation and make recommendations for improving implementation of the TMDL Program, including recommendations for revised regulations and guidance. In 1998, after careful deliberation, the Committee submitted to EPA its final report containing more than 100 recommendations, a subset of which required regulatory changes (Report of the Federal Advisory Committee on the Total Maximum Daily Load (TMDL) Program. EPA 100-R-98-006, July 1998). The committee reached consensus on most recommendations although minority reports were filed on some issues. These recommendations guided EPA in the development of the proposed rule of August 23, 1999, (64 FR 46012) and the final rule of July 13, 2000 (65 FR 43586). EPA proposed changes intended to resolve issues concerning the identification of impaired waterbodies by promoting more comprehensive inventories of impaired waters. The rule was also intended to improve implementation of TMDLs by requiring, as part of the TMDL, implementation plans containing lists of actions and expeditious schedules to reduce pollutant loadings. Finally, EPA proposed changes to the NPDES permitting regulations to assist in implementing TMDLs and to better address point source discharges to waters not meeting water quality standards prior to establishment of a TMDL.

C. Why Did EPA Undertake a Further Review of the TMDL Regulations and Delay the Effective Date of the July 2000 Rule?

The July 2000 rule was controversial from the outset. The August 1999 proposal attracted approximately 34,000 comments, a significant number of which criticized various aspects of the proposed rule. Before and after promulgation, the rule generated considerable controversy, as expressed in Congressional action, letters, testimony, public meetings, and litigation. Even before it was published in the Federal Register, Congress prohibited EPA from implementing the final rule through a spending prohibition included in the Military Construction Appropriations Act: FY 2000 Supplemental Appropriations (Pub. L. 106-426). This provision prohibited EPA from using funds made available for fiscal years 2000 and 2001 “to make a final determination on or implement” the July 2000 TMDL rule. Anticipating that this amendment would go into effect, the July 2000 rule provided that the effective date of the regulations would be 30 days after the date that Congress allowed EPA to implement the regulations. The spending prohibition was scheduled to expire on September 30, 2001, and, barring further action by Congress or EPA, the rule would have gone into effect 30 days later on October 30, 2001. Additionally, in the FY 2001 Appropriations Bill, Congress directed EPA to contract with the National Academy of Sciences' National Research Council (NRC) to evaluate the adequacy of scientific methods and approaches currently available to support development and implementation of TMDLs. In the Conference Report #106-988 describing the VA/HUD and Independent Agencies FY 2001 Appropriations Act, Congress also requested that the Agency prepare a comprehensive assessment of the development and implementation costs of the TMDL Program.

States, business and industry groups, agriculture and forestry organizations, and local governments questioned the scope, complexity, and cost of, and the legal authority for, many of the new provisions of the rule. Environmental groups expressed concern that the rule did not do enough to address water quality impairments from nonpoint sources, and argued that the new schedules in the rule unlawfully extend CWA deadlines. Stakeholder concerns were reflected in legal challenges to the July 2000 rule by a broad array of litigants. Ten petitions for review were filed by States, industrial and agricultural groups, and environmental organizations asserting that many of EPA's revisions to the TMDL regulations were either unlawful under the Administrative Procedure Act or exceeded the Agency's authority under the CWA. These petitions, which identified more than fifty alleged legal defects in the July 2000 rule, were ultimately consolidated in the American Farm Bureau Federation et al v. Whitman (No. 00-1320) for the District of Columbia Circuit United States Court of Appeals. In addition, several other stakeholders have intervened in these lawsuits. Some of the issues raised by the petitioners include the scope and content of the section 303(d) list, the elements of an approvable TMDL, scheduling and EPA backstopping of TMDLs, and the change to the NPDES regulations addressing EPA's authority to object to expired State permits. The litigation over the July 2000 rule is currently stayed pending EPA's determination regarding whether, and to what extent, that rule should be revised.

Because of these significant concerns, EPA, on August 9, 2001, proposed to delay the effective date of the July 2000 rule by 18 months (66 FR 41817) until April 30, 2003, to allow time for reconsideration of specific aspects of the rule. EPA stated that it intended to use the time to analyze the findings and recommendations of the NRC report; to discuss ideas for improving the TMDL Program with a broad array of interested parties; and, if deemed appropriate, to revise the regulations through a notice and comment process. The Agency believed that an 18-month delay of the July 2000 rule's effective date was the minimum time necessary to conduct a meaningful consultation process, analyze and reconcile the recommendations of the various stakeholders and promulgate desired program changes. In the same notice EPA proposed to revise from April 1, 2002, until October 1, 2002, the date by which States are required to submit their 303(d) lists of impaired waters for 2002. Following receipt and evaluation of comments, on October 18, 2001, EPA published in the Federal Register a final rule delaying for 18 months, until April 30, 2003, the effective date of the July 2000 rule and delaying until October 1, 2002, the due date for the States' 2002 submission of section 303(d) lists of impaired waters (66 FR 53044).

As part of the effort to solicit additional input on the TMDL Program, EPA published a notice in the Federal Register announcing the dates, locations and discussion themes for five “public listening sessions” addressing the Agency's TMDL Program and possible revisions to the TMDL rule (66 FR 51429). EPA announced that it would use the information received at these public listening sessions as it considered changes to the regulations that implement the TMDL Program and related provisions in the NPDES Program. These listening sessions were held in the following cities, each with a primary focus on a specific theme:

• Chicago, Illinois (Oct. 22-23, 2001): “Implementation of TMDLs Addressing Nonpoint Sources.”
• Sacramento, California (Nov. 1-2, 2001): “Scope and Content of TMDLs.”
• Atlanta, Georgia (Nov. 7-8, 2001): “EPA's Role, the Pace/Schedule for Development of TMDLs, and NPDES Permitting Pre and Post TMDL.”
• Oklahoma City, Oklahoma (Nov. 15-16, 2001): “Listing Impaired Waters.”
• Washington DC (Dec. 11, 2001): “Comprehensive Discussion of All Listing and TMDL Issues.”

Nearly 1,000 people attended the five meetings. At each meeting attendees, representing a broad cross-section of stakeholder interests, heard presentations from EPA representatives and other members of the meeting's “listening panel,” and participated in facilitated small-group discussions focused on the meeting's overall theme and the specific discussion questions. The meetings provided participants an opportunity to exchange ideas with various stakeholder groups, including representatives from petitioners and interveners in litigation, and members of the public. EPA has published detailed summaries on its website of all the listening sessions, including oral and written comments from each meeting as well as letters received afterwards. (http://www.epa.gov/​owow/​tmdl/​meetings). These meetings demonstrated that there continued to be a wide divergence of opinion regarding whether and how the Agency should revise the implementing regulations for the TMDL and NPDES Programs.

Subsequent to the public listening sessions, EPA met individually with numerous public and private stakeholder groups to solicit additional input on how best to modify the TMDL and NPDES regulations. These stakeholder groups represented a broad array of interested parties, and included the following: The Association of State and Interstate Water Pollution Control Administrators; Environmental Council of States; Western Governors' Association; Clean Water Coalition; Clean Water Network; Advisory Council on Water Information; Interstate Commission on Water Policy; Association of Metropolitan Sewerage Agencies; Water Environment Federation; American Chemical Council; American Farm Bureau; Earthjustice Legal Defense Fund; Ocean Conservancy; Natural Resources Defense Council; and TMDL rule petitioners. Between August 2001 and April 2002, EPA also attended periodic meetings with the United States Department of Agriculture (USDA) to solicit input on ways to improve the TMDL Program and to discuss approaches to taking advantage of USDA and State planning processes to support watershed-based TMDLs. EPA formed an internal EPA workgroup in October 2001 to begin evaluating the future direction and scope of the TMDL Program. Draft concepts developed by the workgroup have been shared with stakeholder groups, and the workgroup has developed a draft proposal that would amend the regulations at 40 CFR part 130 as well as some NPDES Program provisions.

D. Why Is EPA Proposing To Withdraw the July 2000 TMDL Rule?

Despite the efforts described above, the Agency needs more time to evaluate whether and how to revise the currently-effective regulations. At this point, EPA is not sure how long that effort will take. However, EPA believes that continuing to examine the regulatory needs of the TMDL and NPDES Programs when faced with the impending April 30, 2003, effective date for the July 2000 rule sends confusing signals to the States and other interested parties about which set of rules they should be prepared to implement. Due to the significant controversy, pending litigation and lack of stakeholder consensus on key aspects of the July 2000 rule, it has become apparent to EPA that, as promulgated, the July 2000 rule cannot function as the blueprint for an efficient and effective TMDL Program without significant revisions. Moreover, the existence of the approaching April 30, 2003, effective date for the July 2000 rule—a mere four months away—is beginning to act as an unnecessary and artificial distraction from an orderly completion of the Agency's efforts now underway to chart the future direction and scope of the TMDL Program. Consequently, EPA is proposing to withdraw the July 2000 TMDL rule so that the Agency can consider whether and how to revise the TMDL rules without concern that those efforts will be adversely affected by the July 2000 rule's effective date.

Withdrawal of the July 2000 rule will not adversely affect the increasing momentum of State TMDL Programs across the country. Should EPA ultimately decide to withdraw the July 2000 rule, the effect of such a withdrawal would be that the TMDL Program would continue to operate under the rules promulgated in 1985, as amended in 1992, at 40 CFR part 130. Thus, there would be no gap in regulatory coverage. Indeed, States would continue to establish lists of impaired waters and TMDLs according to the currently-effective regulations. Pursuant to these rules, States were required to submit new lists of impaired waters by October 1, 2002, and as described in section A above, these currently effective rules provide a comprehensive set of requirements for the identification of impaired waters, establishment of TMDLs and incorporation of TMDLs into State water quality management plans.

One impetus for the July 2000 rule was concern that States were not making enough progress in listing impaired waters, and scheduling, developing and implementing TMDLs. However, since 1996, when EPA established a Federal Advisory Committee to provide recommendations for revisions to the TMDL regulations, there have been many non-regulatory improvements to the TMDL Program that have resulted in States increasing the quality of their section 303(d) lists and greatly accelerating the pace of their TMDL development. States and EPA are continuing to establish TMDLs in accordance with schedules agreed upon between the States and EPA as well as in accordance with court orders and consent decrees (this is discussed in greater detail, below). The Agency has also increased outreach to States and issued TMDL technical guidance, monitoring guidance, and CWA section 319 nonpoint source guidance to help States develop better methods to more accurately and consistently monitor and list impaired waters, establish TMDLs, and identify the most appropriate and cost-effective methods and approaches to implement the TMDL Program. This outreach and guidance has taken the form of detailed policy memoranda, national guidance documents, technical protocol documents for developing pollutant-specific TMDLs, and information on best management practices for controlling nonpoint sources. A complete list of these documents can be found at EPA's website: http://oaspub.epa.gov/​waters/​national_​rept.control. Key policy documents include: “New Policies for Establishing and Implementing Total Maximum Daily Loads (TMDLs)”, August 8, 1997; “Guidance: Use of Fish and Shellfish Advisories and Classifications in 303(d) and 305(b) Listing Decisions”—Oct. 24, 2000; “Supplemental Guidelines for the Award of Section 319 Nonpoint Source Grants to States and Territories in FY 2002 and Subsequent Years”—September 5, 2001; “2002 Integrated Water Quality Monitoring and Assessment Report Guidance”—November 19, 2001; “ Proposed Water Quality Trading Policy”—May 15, 2002; (http://www.epa.gov/​owow/​watershed/​trading/​tradingpolicy.html); and “EPA Review of 2002 Section 303(d) Lists and Guidelines for Reviewing TMDLs under Existing Regulations issued in 1992”—May 20, 2002.

States are the primary entities responsible for developing and implementing TMDLs under the CWA and EPA recognizes the financial burden faced by States in this effort. From FY 1999 to 2002, EPA has provided the States almost $30 million for TMDL-specific activities, including section 303(d) list development, water quality assessments/screening, and pollutant modeling support. States have used this funding to secure technical support through contracts and through grants to universities and not-for-profit organizations and institutions. The Agency also allowed the use of a portion of State grants for water program administration (CWA section 106 grants) and nonpoint source programs (CWA section 319 grants) for developing and implementing TMDLs. The guidelines for use of the section 319 funds recommend focusing incremental 319 grant dollars ($100 million) on implementing on-the-ground measures and practices that would reduce pollutant loads in accordance with approved TMDLs for waters that are impaired in whole or in part by nonpoint sources. In addition, since 1998 the Agency has spent more than $11 million to support development of technical guidance for developing TMDLs and identifying the most appropriate and efficient best management practices for nonpoint sources.

Helped by these programmatic initiatives, States have made considerable progress in developing TMDLs. Moreover, mechanisms are in place to ensure that those efforts do not diminish. Currently, there are 22 States in which EPA is under court order, generally resulting from entry of a consent decree, to establish TMDLs if States do not do so. Twelve consent decrees have been entered since 1999, the year the July 2000 TMDL rule revisions were proposed. Between 1996 and 1999, EPA and the States established approximately 800 TMDLs. Since then, and despite the fact that the July 2000 rule never became effective, EPA and the States have established more than an additional 7,000 TMDLs; and they continue to improve the pace at which TMDLs are established. Given this progress and the States' adoption since 1998 of schedules for TMDL development, EPA anticipates no reduction in the pace of TMDLs being developed even if the July 2000 rule does not take effect.

Another aim of the July 2000 rule was to promote more comprehensive State inventories of impaired waters. Under authority of the rules promulgated in 1985 and 1992, EPA issued the 2002 Integrated Water Quality Monitoring and Assessment Report Guidance (November 19, 2001) to promote a more integrated and comprehensive system of accounting for the nation's water quality attainment status. The guidance recommends that States submit an “Integrated Report” that will satisfy CWA requirements for both section 305(b) water quality reports and section 303(d) lists. The objectives of this guidance are to strengthen State monitoring programs, encourage timely monitoring to support decision making, increase numbers of waters monitored, and provide a full accounting of all waters and uses. The guidance encourages a rotating basin approach, and strengthened State assessment methodologies, and is intended to improve public confidence in water quality assessments and 303(d) lists. EPA extended the date for submission of 2002 lists by six months (66 FR 53044) to allow States and Territories time to incorporate some or all of the recommendations suggested by EPA in this 2002 Integrated Water Quality Monitoring and Assessment Report Guidance. At this time, most States and Territories have submitted a 2002 report which incorporates some or all of the elements of the guidance. In addition to releasing the Integrated Reporting Guidance, EPA also held five stakeholder meetings in 2001 and 2002 to review and comment on a best practices guide that EPA was developing for States on consolidated assessment and listing methodologies. This guidance “Consolidated Listing and Assessment Methodology-Toward a Compendium of Best Practices'' was released in July 2002.

For all the above reasons, the Agency believes that it is reasonable to withdraw the July 2000 rule. Continuing to evaluate whether and how to revise the current regulations under the April 30, 2003, effective date deadline is confusing to the States and other interested parties, and counterproductive to EPA's own continuing efforts to assess the future direction and scope of the TMDL Program. Moreover, in light of the significant progress States have made in the past three years in establishing TMDLs under the currently effective rules, EPA does not foresee any harm to States' efforts to implement section 303(d) from withdrawal of the July 2000 rule pending completion of EPA's effort. Consequently, the Agency is proposing to withdraw the July 2000 rule.

E. Request for Comment

EPA invites and will consider comments received during the 30-day comment period that address the question of whether the Agency should withdraw the July 2000 rule. EPA is not requesting comments on the currently effective rule at 40 CFR part 130 or what, if any, changes the Agency should propose to the TMDL rules in effect at 40 CFR part 130. EPA's consideration of that issue is continuing and when or if EPA proposes changes to the currently-effective TMDL regulations, EPA will provide for public comment in a separate Federal Register notice. Should EPA ultimately decide to withdraw the July 2000 rule, the effect of such a withdrawal would be that the TMDL Program would continue to operate under the rules promulgated in 1985, as amended in 1992, at 40 CFR part 130. Similarly, the revisions to the NPDES regulations at 40 CFR parts 122-124 would not go into effect, but under section 301(b)(1)(C), NPDES permits would still be required to include limits as stringent as necessary to meet water quality standards, and under 40 CFR 122.44(d) permit limits would continue to be required to derive from and comply with water quality standards and be consistent with the assumptions and requirements of wasteload allocations in an approved TMDL.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a “significant regulatory action.” As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

B. Paperwork Reduction Act (PRA)

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 means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The 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 a 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 today's rule on small entities, small entity is defined as: (1) A small business based on SBA size standards; (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. After considering the economic impacts of today's proposed rule on small entities, I certify that this action, which would withdraw the July 2000 rule that has not taken effect, will not have a significant economic impact on a substantial number of small entities. Like the July 2000 rule, this proposed rule will not impose any requirements on small entities. This action would withdraw the July 2000 rule, which has never taken effect.

D. Unfunded Mandates Reform Act (UMRA) of 1995

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, tribal and local 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 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.

Like the July 2000 rule, today's proposed rule, which would withdraw the July 2000 rule that has not taken effect, contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, or tribal governments or the private sector. The proposed rule imposes no enforceable duty on any State, local or tribal government or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of UMRA. For the same reason, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This action does not impose any requirement on any entity. There are no costs associated with this action. Therefore, today's rule is not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

This proposal 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. It proposes to withdraw the July 2000 rule, which has never taken effect. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. It proposes to withdraw the July 2000 rule, which has never taken effect. Thus, Executive Order 13175 does not apply to this rule.

In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866.

H. Executive Order 13211: Energy Effects

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use”, (66 FR 28355; May 22, 2001) because it is not a likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule simply proposes to withdraw the July 2000 rule which has never taken effect. We have concluded that this rule is not likely to have any adverse energy effects.

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, section 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. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not impose any technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

List of Subjects

40 CFR Part 9

• Reporting and recordkeeping requirements

40 CFR Part 122

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous substances
• Reporting and recordkeeping requirements
• Water pollution control

40 CFR Part 123

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Air pollution control
• Hazardous waste
• Indians-lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements
• Water pollution control

40 CFR Part 124

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Hazardous waste
• Indians-lands
• Reporting and recordkeeping requirements
• Water pollution control
• Water supply

40 CFR Part 130

• Environmental protection
• Grant programs—environmental protection
• Indians—lands
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Water pollution control
• Water supply

Dated: December 20, 2002.

Christine T. Whitman,

Administrator.

Parts 9, 122, 123, 124 and 130—Withdrawal of July 2000 Amendments

For the reasons stated in the preamble, EPA proposes:

1. To withdraw the amendments to 40 CFR part 9, 122, 123, 124 and 130 published July 13, 2000 (65 FR 43586).

a. The authority citation for part 130 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

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