E7-4643. Notice of Approval of Revisions to Delaware's National Pollutant Discharge Elimination System (NPDES) Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of approval.

SUMMARY:

Notice is hereby given of approval of the submittal by the State of Delaware of its new and revised NPDES regulations to maintain consistency with the requirements of the Clean Water Act and its implementing regulations at 40 CFR 122, 123 and 124, as amended.

DATES:

EPA's approval is effective on March 14, 2007.

FOR FURTHER INFORMATION CONTACT:

Evelyn MacKnight, U.S. EPA, Region 3, 1650 Arch Street, Philadelphia, PA 19103, or telephone her at [phone]. Copies of materials considered by EPA in its decision are available for review by appointment at U.S. EPA, Region 3, 1650 Arch Street, Philadelphia, PA 19103. Appointments may be made by calling Ms. MacKnight.

SUPPLEMENTARY INFORMATION:

Section 402 of the Federal Clean Water Act (CWA) created the NPDES program under which the Administrator of EPA may issue permits for the discharge of pollutants into waters of the United States when consistent with the CWA. Section 402(b) allows States to assume NPDES program responsibilities upon approval by EPA. On April 1, 1974, Delaware was authorized by EPA to administer the NPDES program; the State also received the authority to administer the General Permits program on October 23, 1992.

EPA has established a regulation at 40 CFR Part 123 that establishes the requirements for NPDES State Programs. Section 123.62 establishes procedures for the revision of authorized NPDES State Programs. Pursuant to § 123.62(a), a State may initiate a program revision and must keep EPA informed of any proposed modifications to its regulatory authority. On July 28, 2003, the State of Delaware submitted to EPA for review and approval revisions to the regulations implementing the State's NPDES program. The State made significant revisions to sections 1 through 8 and sections 10 through 14 of its Department of Natural Resources and Environmental Control's (DNREC) March 15, 1974 Regulations Governing the Control of Water Pollution, which EPA has determined constituted a substantial revision to Delaware's authorized NPDES program. EPA determined that the State's submittal was complete on November 19, 2003, with the submittal of a statement from the State's Attorney General's office which certified that the regulations were duly adopted pursuant to State law. EPA solicited public comments as to whether it should approve or disapprove the revisions on February 10, 2004 (69 FR 6289) pursuant to Federal regulations at 40 CFR 123.62(b)(2) . EPA received no comments in response to the public notice.

As part of EPA's obligation under the Endangered Species Act, EPA prepared a biological evaluation to determine if approval of the revised Regulations Governing the Control of Water Pollution will adversely affect threatened and endangered species and their critical habitat in Delaware. The biological evaluation found that EPA's approval would not adversely affect threatened or endangered species. EPA shared this evaluation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Services and they concurred with EPA's finding on October 9, 2003 and November 7, 2003, respectively.

Regulatory Flexibility Act Based on General Counsel Opinion 78-7 (April 18, 1978)

EPA has long considered a determination to approve or deny a State NPDES program submittal to constitute an adjudication because an “approval,” within the meaning of the APA, constitutes a “license,” which, in turn, is the product of an “adjudication.” For this reason, the statutes and Executive Orders that apply to rulemaking action are not applicable here. Among these are provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a Federal agency proposes or promulgates a rule under Section 553 of the Administrative Procedure Act (APA), after being required by that section or any other law to publish a general notice of proposed rulemaking, the Agency must prepare a regulatory flexibility analysis for the rule, unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. If the Agency does not certify the rule, the regulatory flexibility analysis must describe and assess the impact of a rule on small entities affected by the rule. Even if this approval of revisions to Delaware's NPDES program were a rule subject to the RFA, the Agency would certify that approval of the State's revised NPDES program would not have a significant economic impact on a substantial number of small entities. EPA's action to approve an NPDES program merely recognizes that the necessary elements of an NPDES program have already been enacted as a matter of State law; it would, therefore, impose no additional obligations upon those subject to the State's program. Accordingly, the Regional Administrator would certify that this approval, even if a rule, would not have a significant economic impact on a substantial number of small entities.

Notice of Decision: I hereby provide public notice of the Agency's approval, pursuant to 40 CFR 123.62, of the State of Delaware's revisions to its Regulations Governing the Control of Water Pollution, as consistent with the requirements of the Clean Water Act NPDES Program.

Dated: February 15, 2007.

William T. Wisniewski,

Acting Regional Administrator, Region 3.