[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
[Proposed Rules]
[Pages 37072-37081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17343]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-6373-7]
RIN 2040-AD33
EPA Review and Approval of State and Tribal Water Quality
Standards
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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[[Page 37073]]
SUMMARY: EPA is proposing to change the regulation that specifies when
new and revised State and Tribal water quality standards become
effective for Clean Water Act purposes. Under the proposal, new and
revised standards adopted after the effective date of the final rule
will not be used for Clean Water Act purposes until approved by EPA,
unless such new and revised standards are more stringent than the
standards previously in effect. The proposal also provides that
standards already in effect at the effective date of the new rule may
be used for Clean Water Act purposes, whether or not approved by EPA,
unless EPA subsequently disapproves them and replaces them with Federal
water quality standards.
DATES: EPA must receive comments on this proposed rule on or before
August 23, 1999.
ADDRESSES: Send written comments to W-99-05, WQS-Approvals Comment
Clerk, Water Docket, MC 4101, U.S. EPA, 401 M Street, SW, Washington,
DC 20460. Written comments should include an original and three copies.
Electronic comments are encouraged and should be submitted to OW-
Docket@epa.gov. Electronic comments must be submitted as an ASCII file
or a WordPerfect file, and must be identified by the docket number, W-
99-05. The record for this rulemaking is available for inspection from
9:00 to 4:00 p.m., Monday through Friday, excluding legal holidays, at
the Water Docket, East Tower Basement, Room EB57, U.S. EPA, 401 M
Street, SW, Washington, DC. For access to docket materials, please call
(202) 260-3027 to schedule an appointment.
The draft Clean Water Act Water Quality Standards dockets discussed
in section III.E. of the SUPPLEMENTARY INFORMATION below are available
for viewing in the Regional Offices. Regional contacts, addresses, and
phone numbers are included in the supplementary section of this
preamble.
FOR FURTHER INFORMATION CONTACT:
William Morrow, Office of Science and Technology, Standards and Applied
Sciences Division, (202) 260-3657.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
II. Background
A. Statutory
1. The Role of Water Quality Standards Under the CWA
2. Adoption, Revision, and Review and Approval of State and
Tribal Water Quality Standards
3. CWA Section 510
B. Regulations
C. The Alaska Litigation
III. What is EPA proposing and how will it work?
A. Summary
B. Rationale for changing Sec. 131.21(c)
C. Options EPA Considered
1. Prospective effect of the rule
2. Disapproved water quality standards
D. Integration with CWA section 510
E. Tracking CWA Standards
1. EPA's CWA WQS Docket
2. Approving Standards Promptly
IV. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act
V. Unfunded Mandates Reform Act
VI. Regulatory Planning and Review, Executive Order 12866
VII. Enhancing the Intergovernmental Partnership, Executive Order
12875
VIII. Consultation and Coordination With Indian Tribal Governments,
Executive Order 13084
IX. Paperwork Reduction Act
X. Protection of Children from Environmental Health Risks and Safety
Risks, Executive Order 13045
XI. National Technology Transfer and Advancement Act
I. Potentially Regulated Entities
Citizens concerned with water quality may be interested in this
rulemaking. Entities discharging pollutants to waters of the United
States could be indirectly affected by this rulemaking since water
quality standards are used in determining National Pollutant Discharge
Elimination System (NPDES) permit limits. Potentially regulated
entities include:
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Category Examples of potentially affected entities
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States, Tribes, and Territories... States, Territories, and Tribes authorized to administer water quality standards.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to regulated by this action
once finalized. This table lists the types of entities that EPA is now
aware could potentially be regulated by this action. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the proceeding FOR FURTHER
INFORMATION CONTACT section.
II. Background
A. Statutory
1. The Role of Water Quality Standards Under the CWA
When the Clean Water Act (CWA or Act) was enacted in 1972, its
focus was on the establishment of a system for controlling pollution at
the source through imposition of categorical technology-based permit
effluent limitations on point sources. However, Congress recognized
that such controls would not always be sufficient to meet the goals of
the Act, and therefore complemented that technology-based program with
the water quality standards program under section 303 of the Act. Under
the CWA, water quality standards consist of designated uses for
waterbodies, water quality criteria to protect those uses, an
antidegradation policy to maintain water quality, and any policies
affecting the application and implementation of such standards. Such
standards serve both as a description of the desired water quality for
particular waterbodies and as a means of ensuring that such quality is
attained and maintained.
The CWA prescribes various uses for water quality standards. For
example, they are used as benchmarks for evaluating proposals such as
basin grants under section 102(c), plans for the Chesapeake Bay under
section 117(b)(2), water quality management planning under section
205(j), and contained disposal facilities for dredged spoil under 33
U.S.C. 1293(a). Water quality standards are also the basis for
identifying impaired waters under sections 303(d)(1)(A) and 304(1) and
developing total maximum daily loads (TMDLs) and waste load allocations
under section 303(d)(1)(C). Water quality standards are the foundation
for water quality-based effluent limitations for NPDES permits under
section 301(b)(1)C), serve to limit variances under section 301(h) and
(m), and are a floor when permit limitations are relaxed under section
402(o)(3). Under section 401, they also serve as a basis for granting
or denying State or Tribal certifications for federal licenses or
permits for activities that may result in a discharge.
2. Adoption, Revision, and Review and Approval of State and Tribal
Water Quality Standards
CWA section 303 describes the requirements for adoption, revision,
review and approval of water quality standards. Sections 303(a) and (b)
provided a transition from the predecessor statute and were designed to
ensure that States have water quality
[[Page 37074]]
standards for both interstate and intrastate waters of the United
States. Section 303(c) establishes procedures for the periodic review
of, and as needed, revisions to States and Tribes' initial standards.
Section 303(c) requires States (and hence Tribes which have authorized
to be treated in the same manner as States) from time to time but at
least once every three years to hold public hearings for the purpose of
reviewing applicable water quality standards and, as appropriate,
modifying and adopting new or revised standards. The results of such
reviews are to be made available to EPA.
Under section 303(c)(2)(A), whenever a State or authorized Tribe
adopts a new or revised standard, the State or Tribe must submit it to
EPA. Section 303(c)(3) requires EPA to review such submissions. If the
Administrator, within 60 days of such submission, determines that a
standard meets the requirements of the Act, ``such standard shall
thereafter be the water quality standard for the applicable waters of
that State.'' Today's proposed rule addresses the meaning and
implementation of the phrase: ``such standard shall thereafter be the
water quality standard for the applicable waters of that State.''
If the Administrator determines that a new or revised standard is
not consistent with the requirements of the Act, she shall notify the
State or authorized Tribe no later than 90 days after the date of the
submission and shall specify the changes needed to meet such
requirements. If the State or authorized Tribe does not adopt the
necessary changes within 90 days of notification, the Administrator is
to promptly propose a federal replacement water quality standard
pursuant to section 303(c)(4)(A). In addition, section 303(c)(4)(B)
authorizes the Administrator to propose a water quality standard
whenever she determines one is necessary, for example, if a State or
authorized Tribe fails to update an existing standard or adopt a
standard where necessary. Whether proceeding under section 303(c)(4)(A)
or (B), the Administrator is to promulgate a final water quality
standard not later than 90 days after proposal, unless the State or
authorized Tribe has in the meantime taken action that addresses EPA's
concern.
3. CWA Section 510
As discussed above, the CWA sets out a detailed process to ensure
that there will be a complete set of applicable water quality standards
available for CWA purposes which meet the minimum requirements of the
Act. However, section 510 of the Act also makes it clear that this
process was not intended to preempt the right of States to adopt and
enforce more stringent standards if they so choose. Thus, if a new or
revised standard is more stringent than the otherwise applicable water
quality standard, the proposed rule would continue to allow the
promulgating State or Tribe to enforce within its boundaries such
standards without prior EPA review and approval. Accordingly, the
practical consequences of the proposed rule requiring EPA approval
before a state water quality standard is considered the ``applicable
water quality standard'' are largely confined to new or revised
standards which are less stringent than the preceding standards. The
interplay between CWA sections 510 and 303 is discussed in more detail
in section III.D. below.
B. Regulations
EPA first promulgated a water quality standard regulation in 1975.
That regulation specified the minimum requirements for State review and
revision of water quality standards, but did not identify the
procedures for submitting standards to EPA for review or address
whether such standards were effective under the CWA prior to EPA's
approval (promulgated Nov. 28, 1975, as 40 CFR 130.17(c), recodified as
40 CFR 35.1550).
In 1983, EPA substantially revised and expanded the water quality
standards regulation. This regulation, codified at 40 CFR part 131,
specified in more detail the requirements for water quality standards.
These revisions included the specific elements that must be in a
State's water quality standards, procedures for triennial reviews, and
procedures for submitting new or revised standards to EPA. The
regulation also for the first time addressed the question of when State
standards were effective for purposes of the CWA. Specifically, it
provided that ``A State water quality standard remains in effect, even
though disapproved by EPA, until the State revises it or EPA
promulgates a rule that supersedes the State water quality standard.''
See 40 CFR 131.21(c). As explained in the preamble to the 1983 rule,
this provision was based on the view that State water quality standards
should be effective under the CWA as soon as they were adopted and
effective under State law. In 1991, EPA amended the water quality
standards regulation to add procedures by which an Indian Tribe may
qualify for the water quality standards and CWA section 401
certification programs.
C. The Alaska Litigation
In 1996, a coalition of environmental groups sued EPA, alleging
that EPA was violating the CWA by applying new and revised standards
adopted by Alaska before EPA had approved the standards (Alaska Clean
Water Alliance v. Clark, No. C96-1762R (W.D.Wash.)). On July 8, 1997,
the United States District Court for the District of Washington (the
Court) issued an opinion in this case holding that, notwithstanding
Sec. 131.21(c) of EPA's regulation, the plain meaning of CWA section
303(c)(3) was that new or revised State water quality standards did not
become effective for CWA purposes until approved by EPA. The parties to
the lawsuit have entered into a settlement agreement under with EPA
agreed to propose revisions to 40 CFR 131.21(c) consistent with the
Court's opinion no later than July 1, 1999, EPA also agreed to take
final action within nine months of this proposal. If EPA promulgates a
final regulation that substantially conforms to the proposal,
plaintiffs have agreed to dismiss their litigation. If the final rule
does not substantially conform to the proposal, the plaintiffs retain
the right to reactivate the litigation and seek a remedy from the
court. Today's proposed rule is issued in accordance with this
settlement agreement. EPA seeks comment on both the basic approach and
the specific provisions in today's proposal.
III. What Is EPA Proposing and How Will it Work?
A. Summary
This proposed rule makes three principal points. First, today's
proposed regulation at Sec. 131.21(c) addresses the issue of when a new
or revised State or Tribal water quality standard becomes the
``applicable water quality standard for purposes of the CWA'' in
accordance with section 303(c)(3) of the CWA. The proposed rule does
not affect the process by which State or Tribal water quality standards
are adopted under State or Tribal law, but simply specifies when State
or Tribal standards will be recognized as the ``applicable water
quality standard'' under the CWA. In accordance with the language of
CWA section 303(c)(3) as interpreted by the District Court in the
Alaska case, proposed Sec. 131.21(c) provides that new and revised
water quality standards adopted after the effective date of the final
rule will not become the ``applicable water quality standards for CWA
purposes'' until approved by EPA. See proposed Sec. 131.21(c). As
discussed above, such ``CWA purposes'' include, but or not limited to,
section 303(d)
[[Page 37075]]
listings of impaired waters, development of TMDLs, and establishment of
water quality-based effluent limitation in NPDES permits.
As discussed in more detail below, today's proposed regulation
would affect standards adopted after the effective date of EPA's final
rule. (In the context of this proposal, the word ``adopted'' refers to
completion of the process under which standards are developed and made
effective under State and Tribal law.) EPA is proposing the State and
Tribal standards adopted prior to that date, which are considered
applicable standards under the current federal water quality standards
regulation, will remain the applicable standards. This will include
those standards that EPA has approved and continue in effect under
State and Tribal law as well as those standards in effect under State
and Tribal law that EPA has not yet approved or that EPA has
disapproved. This ``grandfathering'' of State and Tribal standards
adopted and in effect before EPA's new rule becomes affective merely
allows such standards to continue in effect; it does not alter EPA's
responsibility to complete its review of any standards it has not yet
approved or disapproved or to promulgate replacement standards for any
disapproved standards.
Second, today's proposed regulation at Sec. 131.21(c) and (3) state
that, after the effect date of the final rule, any changes (i.e,
repeals, amendments or additions) to the applicable Sate and Tribal
standards must be approved by EPA to be effective for CWA purposes.
(This requirement will apply to future changes to ``grandfathered''
standards which automatically become applicable standards under the
current rule as well as to changes to future standards which, under the
new rule, become applicable standards when approved by EPA.)
Third, the proposed rule makes it clear that, in accordance with
CWA section 510, it does not preempt the right of State or Tribes to
adopt and enforce within their boundaries water quality standards which
are ``not less stringent'' than the applicable water quality standards.
What this means, in practical terms, is that if a State or authorized
Tribe adopts a standard which is at least stringent as the applicable
standard (either a grandfathered standard or a standard adopted and
approved after the effective date of the rule), the State or Tribe may
immediately use such a standard for CWA purposes, pursuant to Sec. 510,
without waiting for EPA to complete its section 303(c)(3) review. The
State may also use standards adopted pursuant to Sec. 510 as a basis
for conditions in section 401 certifications for federal permits such
as EPA-issued NPDES permits.
While EPA review of standards adopted pursuant to Sec. 510 is
underway, the State or Tribe can repeal or modify them and such changes
would go into effect immediately. However, when EPA completes its
review and approves such standards, they become the new applicable CWA
water quality standards, and subsequent revisions to them will not be
applicable for CWA purposes until approved by EPA (subject again to the
State's and Tribe's preserved right under section 510 to adopt and
enforce an even more stringent standard).
B. Rationale for Changing Sec. 131.21(c)
As mentioned in the background section above, EPA's current
regulations at 40 CFR part 131 provide that new and revised State and
Tribal standards are effective for CWA purposes as soon as they are
effective under State or Tribal law and that they remain in effect,
even if subsequently disapproved by EPA, until superseded by a federal
promulgation or changed or withdrawn by the State or Tribe. EPA
believed such an approach was necessary to avoid an absence of
standards prior to EPA approval. See response to comments for 1983
regulation, 48 FR 51400, 51412 (Nov. 8, 1983): ``This interpretation is
necessary because otherwise there would be no standard at all until
federal action was completed.'' Over time, however, it became apparent
that this approach did not always serve the purposes of the Act,
particularly if a revised standard did not meet the requirements of the
Act. The Alaska litigation in which EPA's reliance on existing
Sec. 131.21(c) was challenged (see II.C. above) caused EPA to re-
examine its position.
EPA believes that the approach set forth in today's proposal not
only is consistent with the language of section 303(c)(3) but also
addresses the practical concern driving the approach in the 1983
regulation. As the Court held, the import of the phrase in section
303(c)(3) ``shall thereafter be the water quality standards'' (emphasis
added) is that, until the new or revised standards are approved, they
are not considered the applicable standards as a matter of federal law.
In addition, EPA has re-examined its earlier concern that the 1983
approach was necessary to avoid a gap in standards until federal review
was complete, because states would repeal their old standard when
adopting new or revised one. The fact of the matter is that the repeal
of the earlier water quality standard would itself be considered a
revision to standards. If, as the words of section 303(c)(3) indicate,
revisions need to be approved to be effective for CWA purposes, the
repeal of the old standard could not be effective until approved by
EPA, and hence there would in fact be no gap in standards.
Another concern underlying the 1983 regulation was that requiring
EPA approval might delay the use of improved water quality standards.
However, as a practical matter, only the implementation of less
stringent standards would be delayed under today's proposal, since
section 510 provides that nothing in the CWA affects the right of
States or Tribes to enforce standards within their boundaries that are
equally or more stringent than the federally approved water quality
standards. Of course, the mere fact that a standard is less stringent
than the previous standard does not mean that it is not justified
(e.g., new scientific information may show that a less stringent
criterion is in fact protective of the designated uses or the previous
criterion may have been based on incomplete or inaccurate information).
Having EPA review a new or revised standard before it replaces a more
stringent standard simply allows EPA to confirm that the new standard
is justified and that it meets the requirements of the CWA.
EPA recognizes that the approach of the proposed rule may change in
some respects the relationship between EPA and the States and
authorized Tribes. For example, States and authorized Tribes will not
be able to base CWA permits on new or revised standards which are less
stringent than the predecessor applicable standards unless EPA approves
the less stringent standard. On the other hand, there may be less need
for federal promulgations to correct deficiencies in State and Tribal
standards under the new approach.
C. Options EPA Considered
1. Prospective Effect of the Rule
Because the Court concluded that the CWA on its face required that
new and revised State or Tribal water quality standards be approved by
EPA before being used for CWA purposes, EPA considered whether the new
rule should govern all standards adopted since 1972, or whether it
should apply only to standards adopted after this rulemaking takes
effect. For the reasons below, EPA proposes that only new and revised
State or Tribal water quality standards adopted after the effective
date of this rule must be approved to be the applicable water quality
standards for purposes of the CWA. Previously
[[Page 37076]]
adopted standards that are in effect under State and Tribal law on the
effective date of this rule will remain applicable standards. If the
State or authorized Tribe repeals or revises such standards after the
effective date of the rule, any such revisions or repeal would be
subject to the new rule, that is, they would need EPA approval to be
effective for CWA purposes.
If EPA were to apply the new interpretation to standards adopted
before EPA's final rule, EPA would need to do so consistently. EPA's
experience indicates in some cases this would be exceedingly difficult,
if not impossible, to do. There are a number of reasons for this. Under
the current rule, the approval status of a standard did not affect
whether it was the applicable standard for CWA purposes; standards
changes have not always been promptly submitted to EPA; and some EPA
reviews of standards have not resulted in timely and clear-cut
approvals or disapprovals. Confirming in every case that standards
currently in effect under State law have been approved by EPA, or, it
not, tracking down in each case the last approved predecessor standard,
could by a very burdensome task with minimal environmental benefits.
For example, if a State or authorized Tribe had reorganized and
recodified its water quality standards after approval, it might be
difficult today to reconcile the current citations with the citations
of the provisions in question when approved. In addition, in the case
of standards approved in the 1970's and still in effect, the record of
approval could in some instances be difficult to locate, especially in
EPA Regional offices where there have been organizational changes and
physical relocations of office records over the years. Furthermore, if
the last standard which could be clearly demonstrated as approved had
later been superseded by other standards a long time ago, it might no
longer mesh with the structure of other, approved parts of the State or
Tribe's current standards or reflect current science or improved stream
conditions. To resurrect such a standard as the applicable standard CWA
purposes could in many cases be very artificial, and have uncertain
environmental benefits. Finally, the time and effort involved in
confirming the status of standards adopted since 1972 would also
significantly detract from EPA's ability to make future approval/
disapproval decisions in a timely manner. For these reasons, EPA
believes that there would be extreme practical problems to applying
today's proposed approach to all standards adopted since 1972.
Additionally, changing the status of standards currently on the
books could result in confusion, for example, in situations where
States or authorized Tribes had in the past relied on the current
federal water quality standards regulation to take actions using State
or Tribal standards that were not yet approved by EPA. Questions would
arise about the need to revisit such State or Tribal actions. While the
use of a grandfathering provision excepting such actions from the rule
might partially address this problem, EPA believes that it would be
difficult to craft, and would not fully eliminate confusion. EPA
solicits comment on the approach outlined in today's proposed rule.
2. Disapproved Water Quality Standards
As described above, the proposed rule provides that standards
adopted by a State or authorized Tribe before the effective date of the
rule (and still in effect under State or Tribal law) will remain the
applicable water quality standards for CWA purposes regardless of
whether they have been approved, disapproved, or simply not yet acted
on by EPA. One option EPA considered was to propose that where such a
standard was disapproved by EPA, it would cease to be the applicable
standard for CWA purposes as of the effective date of the rule or
disapproval date, whichever was later. An advantage of such an option
would be to limit circumstances under which inadequate standards could
be used. A disadvantage is that there would be no standard to replace
the disapproved standard until EPA promulgated a superseding federal
standard or the State or authorized Tribe revised the disapproved
standard and obtain EPA's approval. This gap could theoretically be
filled if the proposed rule also provided that the last previously
approved standard could be ``resurrected'' until a new standard was
approved or promulgated. However, for the reasons given above, tracking
down the predecessor standard in each case would be problematic in
these instances as well.
EPA seeks comments on whether the final rule should provide that
standards disapproved by EPA prior to the effective date of the final
rule should cease to be applicable water quality standards under the
CWA. EPA also seeks comments on whether, if it adopts such a provision,
the provision should specify that previously approved standards be
resurrected and serve as the applicable CWA standard until a
replacement for the disapproved standard is adopted by the State or
authorized Tribe and approved by EPA, or until EPA promulgates a
federal standard.
D. Integration With CWA Section 510
Section 510 of the Act provides that nothing in the Act restricts
the right of any State or authorized Tribe (or political subdivision
thereof, or interstate agency) to adopt or enforce any standard, as
long as it is not less stringent than a standard in effect under the
Act. The proposed rule acknowledges this reserved State and Tribal
authority by stating explicitly that a State or authorized Tribe may
adopt and enforce a water quality standard which is not less stringent
than the ``applicable water quality standard'' under the rule. (As
explained above, the ``applicable standard'' would be either the
standard in effect as of the effective date of the rule, or a
superseding approved standard, or a federally promulgated standard.)
Section 510 is self-implementing. This means that a standard
adopted under authority preserved by section 510 may be used
immediately to control pollution originating in the State or Tribe
adopting the standard, without first obtaining EPA approval or EPA
concurrence that the standard is ``not less stringent.'' (Of course, it
would be prudent for a State or authorized Tribe to consult with EPA if
there is any question about the comparative stringency of a new or
revised standard.) Before it is approved by EPA and becomes the
``applicable standard'', such a standard can be changed by the State or
authorized Tribe. However, until federally approved, the standard does
not have any extra territorial effect. Once such a standard is
federally approved, it becomes the new ``applicable standard'' and may
serve as the basis for NPDES permit limitations on out-of-state (as
well as in-state) sources which could affect the waters covered by the
standard. (See CWA sections 402(a)(2), 402(b)(5) and (d)(2); Arkansas
v. Oklahoma, 503 U.S. 91 (1992).)
While the use of standards adopted pursuant to Sec. 510 that have
not yet been federally approved and thereby transformed into
``applicable standards for purpose of the Act'' is generally within the
State or Tribe's discretion, there is an exception. CWA section
301(b)(1)(C), in conjunction with section 402(a), requires that NPDES
permits contain limits as needed to meet water quality standards
established under authority preserved by section 510, as well as
applicable standards established under section 303. Therefore,
permitting
[[Page 37077]]
authorities must include effluent limitations in NPDES permits as
stringent as necessary to meet all water quality standards of the State
or authorized Tribe within which the permittee is discharging,
including standards adopted pursuant to 510 that have not yet been
approved by EPA.
E. Tracking CWA Standards
1. EPA's CWA WOS Docket
In today's proposed rule, EPA, is proposing to rely on the adoption
date (for existing standards) and the approval status (for future
adoptions) to determine whether or not a State or Tribal standard is an
``applicable standard'' under the CWA. To facilitate identifying
whether a given State or Tribal standard is an applicable CWA standard,
EPA believes it is important to develop a comprehensive tracking
system. Under the current regulation, EPA primarily relies on the
standards compilations prepared by States and authorized Tribes to
determine the applicable CWA standard. For example, where EPA is the
NPDES permitting authority, EPA looks to the State's or authorized
Tribe's standards, plus any superseding federal standard that may have
been promulgated by EPA, as the basis for developing water quality-
based conditions in a permit. Under today's proposed rule, before using
a State or tribal standard, EPA would also need to know whether the
standard had been in effect under State and Tribal law on the effective
date of the final rule, and, if it had not been, whether EPA had
approved the State or Tribal standard (see table at Sec. 131.2 (c) in
today's proposed regulation). To simplify the process for determining
what the CWA standard is at any given time, EPA is proposing to
establish a CWA Water Quality Standards (WQS) docket which would
contain the applicable CWA standards for every State, authorized Tribe,
and Territory. This CWA WQS docket will contain (1) State and Tribal
standards adopted prior to, and still in effect under State or Tribal
law on, the effective date of the final rule, (2) State or Tribal
standards adopted after the effective date of the final rule and
approved by EPA, (3) any applicable federal standards promulgated under
subpart D to 40 CFR part 131. This CWA WQS docket will be updated
regularly by EPA to reflect future EPA approvals and promulgations.
This CWA WQS docket will be available to the public to facilitate the
public's ability to determine what the applicable CWA standard is for a
particular waterbody.
In conjunction with today's proposed rule, EPA has established a
draft CWA WQS docket for each State, authorized Tribe, and Territory.
The draft CWA WQS docket for each State, authorized Tribe, and
Territory is located in the corresponding EPA Regional Office. EPA
believes the draft CWA WQS docket contains all the current CWA
standards in effect as of July 9, 1999. EPA assembled the draft CWA WQS
docket with assistance from State, authorized Tribes, and Territories.
While we collectively believe it contains all of the elements of each
State's or Tribe's program that is subject to review and approval under
section 303(c) of the CWA, we will be checking its accuracy before
finalizing the rule. Although the docket is not itself a rule but
rather an administrative aid, comments from the public pointing out any
omissions or erroneous inclusions are welcome. EPA will continue to
work with States, authorized Tribes, and Territories to ensure that the
CWA WQS docket is current and complete by the time this rule goes into
effect.
EPA believes that, in order for the CWA WQS docket to be useful, it
should be in a form that is readily accessible to anyone interested in
water quality standards. Establishing hardcopy CWA WQS subdockets in
each EPA Regional office EPA's first step in assuring such
accessibility. EPA is evaluating long term plans for maintaining the
CWA WQS docket, including the possibility of having the CWA WQS docket
accessible over the Internet. For example, EPA could establish and
maintain a web site where the applicable CWA standard for any State,
authorized Tribe, or Territory could be accessed quickly. If this
approach is taken, having States and authorized Tribes submit their
standards revisions electronically would allow EPA to enter the
revisions into an electronic database in a more timely manner. EPA
solicits comments on the most effective ways (short term and long term)
to make the CWA WQS docket accessible to the public.
Under the existing regulations at 40 CFR 131.21(d), EPA annually
publishes in the Federal Register a notice of State and Tribal
standards that have been approved by EPA since the most previous
notice. EPA publishes this notice of approvals to keep the public
informed of changes in State and Tribal water quality standards
program, and to inform the public that EPA has determined such changes
are consistent with the CWA. In today's proposed rule, EPA is proposing
to delete this annual reporting requirement in light of our plan to
establish a CWA WQS docket. See Sec. 131.21(g) in today's proposed
rule. EPA does not see the need to maintain this annual notice of
approvals, since the CWA WQS docket will allow anyone to review the
applicable CWA standard at anytime. EPA believes the establishment of a
CWA WQS docket is an improvement over the existing annual reporting
requirement because the full text of the standards themselves will be
included, not just a listing of the relevant sections, and because it
will be updated whenever there is a change to the applicable standards.
EPA solicits comment on replacing the exiting annual reporting
requirement of State and Tribal approvals with the establishment of a
CWA WQS docket.
As stated above, these draft standards contained in the CWA WQS
docket can be viewed in the Regional Offices. Regional contacts,
addresses, and phone numbers are listed in the table below.
----------------------------------------------------------------------------------------------------------------
State EPA regional office EPA contact
----------------------------------------------------------------------------------------------------------------
Connecticut, Maine, Massachusetts, EPA Region 1, 1 Congress Bill Beckwith, 617-918-1544.
New Hampshire, Rhode Island, and Street, Suite 1100, CWQ,
Vermont. Boston, MA 02114-2023.
New Jersey, New York, Puerto Rico, EPA Region 2, 290 Broadway, Wayne Jackson, 212-637-3807.
Virgin Islands. New York, NY 10007.
Delaware, District of Columbia, EPA Region 3, 1650 Arch Ify Davis, 215-814-5453.
Maryland, Pennsylvania, Virginia, Street, Philadelphia, PA
West Virginia. 19103-2029.
Alabama, Florida, Georgia, EPA Region 4, Water Fritz Wagener, 404-562-9267.
Kentucky, Mississippi, North Division--15th Floor,
Carolina, South Carolina, Atlanta Federal Center, 61
Tennessee. Forsyth Street SW,
Atlanta, GA 30303.
Illinois, Indiana, Michigan, EPA Region 5, Water David Pfeifer, 312-353-9024.
Minnesota, Ohio, Wisconsin. Division, 77 West Jackson
Boulevard, Chicago, IL
60604-3507.
Arkansas, Louisiana, New Mexico, EPA Region 6, Water Russell Nelson, 214-665-6646.
Oklahoma, Texas. Division, 1445 Ross
Avenue, First Interstate
Bank Tower, Dallas, TX
75202.
Iowa, Kansas, Missouri, Nebraska... EPA Region 7, 726 Minnesota Larry Shepard, 913-551-7441.
Avenue, Kansas City KS
66101.
[[Page 37078]]
Colorado, Montana, North Dakota, EPA Region 8, 999 18th Bill Wuerthele, 303-312-6943.
South Dakota, Utah, Wyoming. Street, Suite 500, Denver
CO 80202-2466.
Arizona, California, Hawaii, EPA Region 9, Water Phil Woods, 415-744-1997.
Nevada, American Samoa, Guam. Division, 75 Hawthorne
Street, San Francisco, CA
94105.
Alaska, Idaho, Oregon, Washington.. EPA Region 10, Water Lisa Macchio, 206-553-1834.
Division, 1200 Sixth
Avenue, Seattle, WA 98101.
----------------------------------------------------------------------------------------------------------------
2. Approving Standards Promptly
Section 303(c)(3) of the CWA provides EPA with 60 days to approve,
and 90 days to disapprove, water quality standards submitted by States
and Tribes. For a variety of reasons, EPA has not always been able to
meet these deadlines. Under the current federal water quality standards
regulation, delay on the part of EPA in approving State and Tribal
revisions to standards has no immediate practical effect, except for
the State of Alaska where EPA is already implementing today's proposed
changes as a result of the Court's opinion. While the structure of
EPA's proposed rule ensures that States and authorized Tribes will not
be penalized by past delays, EPA still views the elimination of this
backlog as a high priority. EPA headquarters staff are working with EPA
Regional Offices, and with States and Tribes, to streamline our
approval process and eliminate the backlog.
EPA is taking several steps to improve the timeliness of its
approval/disapproval decisions. For example, EPA is improving
coordination among the many EPA offices involved in water quality
standards approvals. Although, EPA Regional offices have been delegated
the authority to make approval/disapproval decisions, the approval/
disapproval process involves substantial coordination among several EPA
offices. EPA is taking steps to ensure that these offices are providing
timely feedback in a coordinated fashion. In addition, EPA is making
every effort to communicate to States and Tribes early in the standards
revisions process EPA's position with respect to the approvability of
specific potential revisions a State or Tribe may be considering. As
part of this effort, EPA recently published an updated list of
recommended ambient water quality criteria for the protection of human
health and aquatic life (see 63 FR 68353) to ensure that States and
Tribes have EPA's most current recommendations. In discussions with
several States during the development of today's proposal, the States
emphasized that in addition to EPA's most current guidance and
recommendations, it is necessary to know early in the State regulatory
development process whether or not a revision they are considering is
inconsistent with the CWA, preferably before the State proposes it for
public comment. EPA will continue to discuss with States and Tribes
ways to coordinate efforts to improve the standards development
process, including ways for EPA to provide input that is both valuable
and timely, and for States and Tribes to seek such input.
Under the Endangered Species Act (ESA), EPA's approval of State and
Tribal water quality standards revisions is considered a federal action
subject to consultation with the U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries Service (NMFS) if the standards may
affect a federally listed species. Such consultations can in certain
cases be time-consuming and delay approval decisions. In recent years,
EPA and Services have increased their efforts to achieve greater
integration of ESA and CWA Programs. In an effort to coordinate its
consultation efforts more efficiently, EPA, the FWS, and NMFS are
working at the national level to develop a Memorandum of Agreement
(MOA). A draft of the MOA was published in the Federal Register for
public comment in January 15, 1999 (see 64 FR 2741). The draft MOA
contains procedures for enhancing coordination regarding the protection
of endangered and threatened species under section 7 of the Endangered
Species Act and the Clean Water Act's Water Quality Standards and
National Pollution Discharge Elimination System programs. Among a
number of objectives, the draft MOA seeks to make ESA consultations
more timely and efficient. Approving/disapproving State and Tribal WQS
submissions in the CWA time frames is a priority for EPA. EPA, at both
Headquarters and its Regional Offices, is working with a number of
States and FWS and NMFS to improve the approval/disapproval process and
eliminate frequently encountered delays. Based on the feedback from
these discussions, EPA will develop more detailed guidance to achieve
the goals discussed above.
IV. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), federal agencies generally are required to conduct an initial
regulatory flexibility analysis (IRFA) describing the impact of the
regulatory action on small entities as part of a proposed rulemaking.
However, under section 605(b) of the RFA, if the Administrator for the
agency certifies that the proposed rule will not have a significant
economic impact on a substantial number of small entities, the agency
is not required to prepare an IRFA. The Administrator certifies,
pursuant to section 605(b) of the RFA, that this proposed rule will not
have a significant economic impact on a substantial number of small
entities. Therefore, the Agency did not prepare an initial regulatory
flexibility analysis.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Todays' proposed rule establishes no requirements applicable to small
entities, and so is not susceptible to regulatory flexibility analysis
as prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is
necessary when an agency determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule,'' United Distribution
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985) (emphasis added by United Distribution court).) Today's
proposed rule, once finalized, will only have a direct effect on States
and authorized Tribes, which by definition are not small entities under
the RFA. The Agency is thus certifying that today's proposed rule will
not have a significant economic impact on substantial number of small
entities, within the meaning of the RFA.
[[Page 37079]]
V. Unfunded Mandates Reform Act
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 the private sector, $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 they
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.
Today's proposed rule 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 does not
affect the process by which State or Tribal water quality standards are
adopted under State or Tribal law, but simply specifies when a State or
Tribal adoption will be recognized as the applicable water quality
standard for general CWA purposes. The rule imposes no enforceable duty
on any State, local or Tribal governments or the private sector. This,
today's rule is not subject to the requirements of section 202 and 205
of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA's proposed rule will only address a single
administrative aspect of the water quality standards approval process
(i.e. the timing of the ``effectiveness'' of State or Tribal standards
under the CWA.) There will be no revisions to existing submission
requirements and no revisions to EPA's standard for review. Thus, this
proposed rule is not subject to the requirements of section 203 of
UMRA.
VI. Regulatory Planning and Review, Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to 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 government 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.''
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
VII. Enhancing the Intergovernmental Partnership, Executive Order
12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's proposed rule does not create a mandate on State, local or
trial governments. The proposed rule does not impose any enforceable
duties on these entities. Today's proposed rule, once finalized, will
only address a single administrative aspect of the water quality
standards approval process (i.e., the timing of the ``effectiveness''
of State or Tribal standards under the CWA). There will be no revisions
to existing submission requirements and no revisions to EPA's standards
for review. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
VIII. Consultation and Coordination With Indian Tribal Governments,
Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments, nor does it impose
substantial direct compliance costs on them. Today's proposed rule,
once finalized, will only address a single administrative aspect of the
WQS
[[Page 37080]]
approval process (i.e., the timing of the ``effectiveness'' of Tribal
WQS under the CWA). There will be no revisions to existing submission
requirements and no revisions to EPA's standards for review.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
IX. Paperwork Reduction Act
This action requires no new information collection activities
subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Therefore, no Information Collection Request will be submitted to the
Office of Management and Budget for review in compliance with the
Paperwork Reduction Act.
X. Protection of Children From Environmental Health Risks and
Safety Risks, Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 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, the Agency 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 the Agency. EPA
interprets E.O. 13045 as applying only to those regulatory actions that
are based on health or safety risks, such that the analysis required
under section 5-501 of the Order has the potential to influence the
regulation. This proposed rule is not subject to E.O. 13045 because it
is not economically significant as defined under E.O. 12866 and,
further, it does not establish an environmental standard intended to
mitigate health or safety risks.
XI. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d)( (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in it
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 involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed
rulemaking, and specifically invites the public to identify potentially
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians-lands, Intergovernmental
relations, Water pollution control, Water quality standards.
Dated: June 30, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth 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 C--[Amended]
2. Section 131.21 is amended by revising paragraphs (c) and (d) and
by adding paragraphs (e), (f), and (g) to read as follows:
Sec. 131.21 EPA review and approval of water quality standards.
* * * * *
(c) How do I determine which water quality standards are applicable
for purposes of the Act?
You may determine which water quality standards are applicable
water quality standards for purposes of the Act for the following
table:
----------------------------------------------------------------------------------------------------------------
If Then Unless In which case
----------------------------------------------------------------------------------------------------------------
(1) A State or authorized Tribe has * * * The State or * * * EPA has * * * The EPA-
adopted a water quality standard Tribe's water quality promulgated a more promulgated water
that is effective under State or standard is the stringent water quality standard is
Tribal law before [effective date of applicable water quality standard for the applicable water
the final rule]. quality standard for the State or Tribe, quality standard for
purposes of the Act. that is in effect. purposes of the Act.
(2) A State or authorized Tribe * * * Once EPA approves * * * EPA has * * * The EPA
adopts a water quality standard that that water quality promulgated a more promulgated water
goes into effect under State or standard, it becomes stringent water quality standard is
Tribal law on or after [effective the applicable water quality standard for the applicable water
date of the final rule]. quality standard for the State or Tribe, quality standard for
purposes of the Act. that is in effect. purposes of the Act.
----------------------------------------------------------------------------------------------------------------
(d) When do I use the applicable water quality standards identified
in paragraph (c) of this section?
Applicable water quality standards for purposes of the Clean Water
Act (CWA) are the minimum standards which must be used when the CWA and
regulations implementing the CWA refer to water quality standards, for
example, in identifying impaired waters and calculating TMDLs under
section 303(d), developing NPDES permit limitations under section
301(b)(1)(C), evaluating proposed discharges or dredged or fill
material under section 404, and in issuing certifications under section
401 of the Act.
(e) For how long does the applicable water quality standard for
purposes of the Act remain the applicable water quality standards for
purposes of the Act?
A State or Tribe's applicable water quality standards for purposes
of the Act remains in effect until EPA approves a change, deletion, or
addition to that water quality standard, or until EPA promulgates a
more stringent water quality standard.
(f) Can standards other than those identified in paragraph (c) of
this section be used for purposes of the Act?
State or Tribal water quality standards which are not less
stringent than the applicable water quality standards may be adopted
and enforced within the boundaries of the adopting State or authorized
Tribe.
(g) How can I find out what the applicable standards are for
purposes of the Act?
[[Page 37081]]
EPA will maintain a docket system, available to the public,
identifying the applicable water quality standards for purposes of the
Act.
[FR Doc. 99-17343 Filed 7-8-99; 8:45 am]
BILLING CODE 6560-50-M
