[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Rules and Regulations]
[Pages 41162-41188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19797]
[[Page 41161]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Water Quality Standards for Idaho; Final Rule
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules
and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-5864-2]
Water Quality Standards for Idaho
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: EPA is promulgating water quality standards applicable to the
waters of the United States in the State of Idaho. These standards
supersede certain aspects of Idaho's water quality standards that EPA
disapproved in 1996. EPA disapproved those standards after concluding
they were inconsistent with the Clean Water Act and EPA's implementing
regulations. The proposal to this rulemaking was published in the
Federal Register on April 28, 1997. EPA is promulgating new use
designations for 5 specified waterbodies in the state of Idaho, as well
as a variance procedure that may be used to obtain relief from those
use designations. Today's rule also establishes temperature criteria
applicable to bull trout spawning and rearing in specified waterbodies.
Finally, EPA is promulgating a federal rule to supersede the state's
excluded waters provision. EPA is not promulgating certain other
aspects of the proposed rule, due either to further analysis by EPA or
to state action which addressed these issues. These and other changes
from the proposal are addressed in detail in the body of this preamble
and in the response to comments document included in the administrative
record for this rulemaking.
EFFECTIVE DATE: September 2, 1997.
ADDRESSES: The administrative record for today's final rule is
available for public inspection at EPA Region 10, Office of Water, 1200
Sixth Avenue, Seattle, Washington, 98101, between 8:00 a.m. to 4:30
p.m. For access to the docket materials, call Lisa Macchio at 206-553-
1834 for an appointment. A reasonable fee may be charged for copies.
FOR FURTHER INFORMATION CONTACT: Lisa Macchio at U.S. EPA Region 10,
Office of Water, 1200 Sixth Avenue, Seattle, Washington, 98101
(telephone: 206-553-1834), or William Morrow in U.S. EPA Headquarters
at 202-260-3657.
SUPPLEMENTARY INFORMATION:
Preamble Outline
A. Potentially Affected Entities
B. Background
1. Statutory and Regulatory Authority
2. Factual Background
3. Responses to Comments on Procedural Issues
4. Indian Country Issues
C. Unclassified Waters
1. Proposal
2. Recent Idaho Actions
D. Stream Segments With Specific Beneficial Use Designations
1. Primary Contact Recreation
i. Proposal
ii. Comments
iii. Final Rule
2. Cold Water Biota
i. Proposal
ii. Recent Idaho Actions
iii. Comments
iv. Final Rule
3. Salmonid Spawning
i. Proposal
ii. Recent Idaho Actions
iii. Comments
4. Waters Located in Indian Country
E. Temperature Criteria for Threatened and Endangered Species
1. Bull Trout
i. Temperature Criteria
a. Proposal
b. Recent Idaho Actions
c. Comments
d. Final Rule
I. Spawning
II. Egg Incubation
III. Juvenile Rearing
ii. Distribution
a. Proposal
b. Recent Idaho Actions
c. Response to Comments
d. Final Rule
iii. Modifications to Bull Trout Criteria and Distribution
2. Sturgeon
i. Proposal
ii. Recent Idaho Actions
3. Snails
i. Proposal
ii. Comments
iii. Final Rule
F. Antidegradation Policy
G. Mixing Zone Policy
1. Proposal
2. Recent Idaho Actions
H. Excluded Waters Provision
1. Proposal
2. Comments
3. Final Rule
I. Federal Variances
1. Proposal
2. Comments
3. Final Rule
J. Executive Order 12866
1. Use Attainability
2. Overview of Methodology to Estimate Potential Costs Related
to New Use Designations
3. Results for Stream Segments With Specific Use Designation
4. Overview of Approach to Estimate Potential Costs Related to
New Temperature Criteria
5. Results for Stream Segments With New Temperature Criteria
K. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
L. Submission to Congress and the General Accounting Office
M. Unfunded Mandates Reform Act
N. Paperwork Reduction Act
A. Potentially Affected Entities
Citizens concerned with water quality in Idaho may be interested in
this rule. Entities discharging pollutants to waters of the United
States in Idaho could be indirectly affected by this rule since water
quality standards are used in determining National Pollutant Discharge
Elimination System (NPDES) permit limits. Categories and entities which
may ultimately be affected include:
------------------------------------------------------------------------
Examples of potentially affected
Category entities
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Industry.............................. Industries discharging
pollutants to surface waters in
Idaho.
Municipalities........................ Publicly-owned treatment works
discharging pollutants to
surface waters in Idaho.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also potentially be affected by this
action. To determine whether your facility is affected by this action,
you should carefully examine the applicability criteria in Sec. 131.36
of Title 40 of the Code of Federal Regulations (CFR). If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in FOR FURTHER INFORMATION CONTACT
section.
B. Background
1. Statutory and Regulatory Authority
The preamble to the April 28, 1997 proposal provided a general
discussion of EPA's statutory and regulatory authority to promulgate
water quality standards. See 62 FR 23004-23005. EPA incorporates that
discussion by reference here. Commenters questioned EPA's authority to
promulgate certain aspects of the proposal. EPA is responding to those
comments in the appropriate sections of this preamble, and in the
response to comments document included in the administrative record for
this rulemaking. Where appropriate, EPA's responses expand upon the
discussion of statutory and regulatory authority found in the proposal.
2. Factual Background
EPA also incorporates by reference the factual background provided
in the
[[Page 41163]]
preamble to the proposal, which covered Idaho's 1994 submittal of its
water quality standards package, EPA's disapproval of certain aspects
of this package, and the District Court's decision in ICL v. Browner
ordering EPA to promulgate standards to supersede those that had been
disapproved. See 62 FR 23005.
Shortly before the April 28, 1997 proposal, Idaho submitted the
results of temporary rulemaking actions to address certain aspects of
EPA's June 25, 1996 disapproval. This March 23, 1997, submittal
includes permanent rules that had been adopted by the State Board of
Health and Welfare in November of 1996 (addressing, among other things,
antidegradation) and temporary rules adopted February of 1997
(addressing use designations for Lindsay Creek and West Fork Blackbird
Creek). Because of the proximity of this submittal to EPA's court-
ordered deadline for proposing federal water quality standards, EPA was
not able to act on this submission prior to proposal. On May 27, 1997,
EPA approved the State's new antidegradation policy and conditionally
approved the use designations for Lindsay and West Fork Blackbird
Creeks subject to completion of consultation required under section 7
of the Endangered Species Act (ESA). For the Lindsay and West Fork
Blackbird Creek designations, final approval is also contingent upon
completion of steps necessary to convert the state rulemaking from
temporary to permanent status.
On June 19, 1997, Idaho adopted another temporary rule addressing
unclassified waters, mixing zones, temperature criteria for bull trout,
and use designations for 29 specific waterbodies that had been the
subject of EPA's June 25, 1996 disapproval. On June 25, 1997, Idaho
submitted a package for EPA's approval that included these temporary
rulemakings, as well as use attainability analyses for certain other
waterbodies addressed in the June 25, 1996 disapproval. On July 15,
1997, EPA issued a letter conditionally approving the unclassified
waters, mixing zone, and use designation aspects of the state's
submittal subject to both the completion of ESA section 7 consultation
and the state taking the steps necessary to convert the rule from
temporary to permanent status. Both the May 27, 1997, and the July 15,
1997, approval letters are included in the docket for today's
rulemaking. The rationales for these approval actions are discussed in
detail below.
3. Responses to Comments on Procedural Issues
EPA received comments on a number of issues related to the
procedural aspects of this rulemaking. Because these comments relate to
all aspects of the rule, they will be addressed first.
Comment: Many commenters complained about the brevity of the
comment period. Commenters requested extensions of varying length,
asserting that the short public comment period means that the proposed
rule will not receive the public review it deserves. Some commenters
objected to the form of notice used by EPA, claiming that publication
in the Federal Register is not adequate.
Response: None of the comments included a showing that the 30 days
comment period provided was inadequate as a matter of law. While EPA
strives to accommodate requests for reasonable extensions to the extent
practicable, a 30 day extension was not feasible here, given both the
statutory deadline for final promulgation and the Court's order
requiring a final rule by July 21, 1997. The inflexible deadline for
promulgation meant that any extension of time for the comment period
would necessarily shorten the time available for EPA to review comments
received. Since comments received from the public are only meaningful
to the extent the Agency has time to review them, EPA decided that a
30-day comment period was optimal in this case. EPA believes that the
significant turnout at the public hearing, the volume of written
comments, and the diverse interests represented by the commenters
demonstrate that meaningful public review was available on the
proposal.
To maximize the utility of the 30 days which EPA was able to
provide, the agency issued an advance notice in the Federal Register
that it planned to propose water quality standards to address the Idaho
standards it had disapproved in June 1996, issued press statements at
the time of the advance notice and the proposal, and put a copy of the
proposal on the Internet. At the hearing, EPA also made available a
fact sheet which explained how to find the proposal on the Internet.
EPA acknowledges that this rulemaking raised complicated technical
issues, and that it is likely that information relevant to today's rule
will continue to surface. EPA has attempted to provide streamlined
mechanisms, such as the provisions for modification of the bull trout
temperature criterion and variance provisions for use designations,
that facilitate EPA's ability to address new information.
As to the assertion that a Federal Register notice does not provide
adequate notice, EPA notes that under the Administrative Procedure Act,
the Federal Register is the required mechanism for providing notices of
proposed rulemaking, and as a matter of law the public is deemed to be
on notice of matters which have been so published. However, to enhance
public awareness, EPA issued press statements at critical times, and is
aware of at least one newspaper article publicizing the hearing.
Comment: The Idaho Department of Environmental Quality (IDEQ)
commented that despite numerous requests by DEQ to EPA over the past
year for EPA to identify which state waters required more stringent
temperature criteria to protect bull trout, DEQ did not learn of the
breadth of EPA's proposal to designate thousands of waters in Idaho for
bull trout until publication in the Federal Register notice in late
April. This, IDEQ claimed, did not allow sufficient time to respond.
Response: One of the two sources EPA used for identifying bull
trout streams was a list compiled by a state agency, Idaho Department
of Fish and Game (IDFG). The waters in the other source, the data base
complied by the interagency Interior Columbia Ecosystem Management
Project, overlapped substantially with the waters on the list.
Accordingly, although the state may not have known the exact list to be
proposed by EPA until it appeared in the Federal Register, the state
should have been generally aware of the potential magnitude of bull
trout distribution in Idaho.
Comment: Commenters argued that there was inadequate opportunity
for oral comment because EPA held only one hearing a mere two weeks
after publication of notice in the Federal Register.
Response: EPA held two sessions, one during the day, and one during
the evening, to accommodate people with different work and travel
schedules. While the formal 2 week notice of the hearing was dictated
by the extremely short schedule imposed by the District Court (a
schedule which EPA sought unsuccessfully to have modified), EPA did
take the extra steps described above to alert the public to the
rulemaking. EPA scheduled the hearing at the middle, rather than the
end, of the public comment period in order to provide an opportunity
for the public to ask questions about the rule to facilitate their
final, written comments. The vast
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majority of commenters at the public hearing later submitted more
detailed written comments.
Comment: Commenters stated that the administrative record should
have been made available in Boise, as well as Seattle. Commenters
recounted that, at one of the public hearings, an EPA employee
represented that a copy of the record would be made available in Boise,
and that an index of the record would be available to those who
requested it, but that no notice was given to the public of such
availability. This, the commenters claimed, violated the spirit, if not
the letter, of the Administrative Procedure Act. The commenters
requested that EPA extend the comment period to allow the public to
review the record in Boise.
Response: The administrative record upon which the proposal was
based was assembled and available to the public in EPA's Region X
office in Seattle at the time of publication of the proposed rule in
the Federal Register. Region X is the EPA region which is responsible
for matters involving the state of Idaho. There is nothing in the APA
which specifies where an administrative record must be made available.
Indeed, in many EPA rulemakings, the administrative record is
maintained at EPA Headquarters in Washington, DC; where an EPA
rulemaking concerns a particular state or single location, the record
is typically maintained in the offices of the regional office with
responsibility for that state.
In the present case, an EPA employee stated at the hearing that EPA
would also make a copy of the administrative record available in Boise
shortly after. In accordance with that offer, a copy with an index was
made available to the public in EPA's Boise Operations Office
approximately a week after the hearing. While EPA had indicated at the
hearing a willingness to mail a copy of the index in the meanwhile, it
turned out that the administrative record itself (including an index)
could be made available as quickly as an index could be mailed out, so
there was no need to mail out the index alone as an interim measure.
Comment: Commenters argued broadly that the proposed rulemaking
violates due process. A commenter also argued specifically that the
proposed rulemaking does not comply with EPA's public participation
rules (40 CFR part 25).
Response: For the reasons stated above, EPA believes that its
rulemaking in this case provided ample notice, formal and informal, to
the public of what EPA was proposing, why it was proposing, and the
basis for the proposal, and that it provided adequate time for public
comment.
EPA was required to shorten the time periods for public notice and
comment from those cited by the commenter because of the Court's order.
As the proposal explained, EPA's regulations allow exceptions to the
otherwise applicable time periods in such circumstances. See 40 CFR
25.2(d): ``Specific provisions of court orders which conflict with this
part, such as court-established timetables, shall take precedence over
the provisions of this part.'' While the commenter is correct that the
Court's order did not itself specifically direct EPA to limit the
public comment period, the order did establish a specific timetable for
proposal and promulgation which indirectly required such a result. EPA
notes that the Court's original February 20, 1997, order directed EPA
to issue a final rule by April 21 and thus did not allow time for any
comment period. In response to EPA's motion for reconsideration which
sought an extension to allow development of a proposed rule and cited
40 CFR Part 25, the Court directed the agency to propose a rule by
April 21, and to promulgate a final rule by July 21, 1997. Within the
constraints of the schedule imposed by the Court, EPA did take what
steps it could to enhance the public's ability to comment, through its
advance notice and the like. See responses to previous comments.
4. Indian Country Issues
Today's promulgation does not apply to waters in Indian country.
Although the proposal did not address the applicability of designated
uses or the bull trout temperature criteria to waters in Indian
country, it was never EPA's intent to establish such uses or criteria
for waters in Indian country by this rule. As explained in the
discussion below, today's rule clarifies that the temperature criteria
do not apply to waters located in Indian country. Regarding the use
designations for specific water bodies, EPA found after the proposal
that certain proposed use designations would affect waters in Indian
country. For the reasons set forth below, EPA has excluded these from
the final rule.
C. Unclassified Waters
1. Proposal
On April 28, 1997, EPA proposed to promulgate a default use
designation for unclassified waters for the state of Idaho which
provided for the protection and propagation of fish, shellfish, and
wildlife, and recreation in and on the water. Specifically, EPA
proposed cold water biota and primary contact recreation beneficial
uses for unclassified waters. EPA proposed such standards because EPA
had determined that Idaho's designated beneficial use for unclassified
waters was incomplete and therefore inconsistent with the CWA and EPA's
implementing regulations at 40 CFR part 131 (see 62 FR 23005).
2. Recent Idaho Actions
On June 19, 1997, Idaho revised its unclassified waters designated
beneficial use to provide for the protection of cold water biota and
primary or secondary contact recreation. (The revised provision also
changes the terminology from ``unclassified'' to ``undesignated'' for
clarity.) On July 15, 1997, EPA approved Idaho's revised beneficial use
for unclassified waters as being consistent with the CWA and EPA's
implementing regulations.
Idaho's revised designated beneficial use for unclassified waters
provides the same level of protection for aquatic life that EPA had
proposed, cold water biota. This is consistent with EPA's findings that
the majority of native Idaho fish are classified as cold water species
and the presence of these species occurs throughout the entire State
(62 FR 23006).
With respect to recreation, Idaho's revised designated beneficial
use for unclassified waters affords the state some discretion as to
whether to which recreational use--primary or secondary contact
recreation--to apply to any specific unclassified water. EPA determined
this flexibility was acceptable because Idaho's bacteria criteria for
secondary contact recreation is equivalent to EPA's bacteria criteria
for primary contact recreation. EPA believes that maintaining water
quality sufficient for primary contact recreation meets the minimum
requirements of the CWA regardless of whether or not a water body is
actually designated for primary contact recreation. For example, there
may be situations where primary contact recreation is undesirable
(e.g., streams used as a source for public drinking water) or unsafe
(e.g., streams with high velocity and large rocks), yet the state may
want to maintain water quality sufficient for primary contact (e.g.,
because incidental swimming does occur or because a downstream segment
is designated for primary contact recreation.
In addition, Idaho established in its unclassified waters
beneficial use designation a process by which the state can designate
undesignated waters. Idaho's process at IDAPA
[[Page 41165]]
16.01.02.101.01. b. and c. specifies that the state may reexamine
relevant data to substantiate a specific use designation for a specific
water body when reviewing activities for consistency with water quality
standards. This provision essentially codifies the existing state
process for moving a water body from the undesignated waters category
(16.01.02.101.) to the waters with specific use designations
(16.01.02.110-160) category. Idaho's process for establishing
beneficial use designations for specific water bodies includes, among
other things, public participation, and a change to the state's water
quality standard. Whenever a state revises its water quality standards,
those revisions are subject to EPA review and approval. On July 15,
1997, EPA approved this aspect of Idaho's unclassified waters
beneficial use designation as being consistent with the CWA and EPA's
implementing regulations at 40 CFR part 131.
Because Idaho has adopted a revised unclassified waters beneficial
use designation which EPA has determined to be in accordance with the
Act, a federal designated beneficial use for unclassified waters is no
longer required under section 303(c)(4).
D. Stream Segments With Specific Beneficial Use Designations
EPA had proposed to promulgate use designations for specific water
body segments which lacked the ``fishable/swimmable'' goal uses
established in the CWA. Specifically, EPA proposed coldwater biota for
35 segments, salmonid spawning for 5 segments, and primary contact
recreation for 44 segments. EPA proposed such uses because EPA had
determined that Idaho's designated beneficial uses for these water body
segments were incomplete and therefore inconsistent with the CWA and
EPA's implementing regulations at 40 CFR part 131. See 62 FR 23007 for
a more detailed discussion of EPA's proposal.
1. Primary Contact Recreation
i. Proposal
In EPA's Proposed Rule (62 FR 23003), primary contact recreation
was a proposed designated beneficial use for 44 waterbody segments
which were lacking a use designation of primary contact recreation. The
State had already designated secondary contact recreation for those 44
water body segments. Although EPA had determined that Idaho's water
quality criteria for the protection of secondary contact recreation are
as stringent as EPA's recommended criteria for the protection of
primary contact recreation (see EPA's May 27, 1997, approval letter),
EPA proposed primary contact recreation as it believed it was required
to by the terms of the District Court's order. The proposal solicited
comment on the option of accepting Idaho's secondary contact recreation
use as protective of swimming.
ii. Comments
Several commenters supported promulgating primary contact
recreation as the ``swimmable'' use in Idaho. Other commenters objected
to primary contact recreation as a designation but supported secondary
as the ``swimmable'' use. EPA believes that where a state's secondary
contact recreation criteria are stringent enough to protect primary
contact recreation, the choice between secondary and primary contact
recreation use designations should be left to the State's discretion.
Although section 510 of the CWA does not preclude states from adopting
standards which are more stringent than required by the Act, EPA's
implementing regulations do not require states to do so. EPA has
determined that in light of the state's bacteriological criteria,
Idaho's secondary contact recreation use is sufficient and is
consistent with the CWA.
iii. Final Rule
EPA's water quality standards regulation at 40 CFR 131.11 requires,
in part, that in establishing criteria, States must adopt criteria with
sufficient coverage of parameters and of adequate stringency to protect
the designated use. States may adopt criteria published by EPA under
section 304(a) of the CWA, criteria modified to reflect site specific
conditions, or criteria based on other scientifically defensible
methods. States are not required to have criteria more stringent than
section 304(a) criteria unless it is determined that such criteria do
not protect the designated uses. Except for fecal coliform bacteria,
the same criteria are applicable to primary contact recreation and to
secondary contact recreation. EPA has determined that Idaho's secondary
contact recreation bacteriological criteria are as stringent as the
recommended section 304(a) Guidance for the protection of swimming,
i.e., primary contact recreation, and are consistent with the CWA and
the requirements at 40 CFR 131.11. Therefore, a federal designated
beneficial use of primary contact recreation for those waters already
designated for secondary contact recreation is no longer required under
CWA section 303(c)(4). For these reasons, EPA is not designating
primary contact recreation for those 44 water body segments identified
in the proposed rule.
2. Cold Water Biota
i. Proposal
In June of 1996, EPA determined that Idaho had not assigned an
aquatic life use for 35 waterbody segments (62 FR 23008-23009). In
EPA's proposed rule, EPA proposed designating cold water biota as the
appropriate beneficial use. EPA determined that a cold water biota use
designation, as defined in the State's water quality standards, is an
aquatic life use category appropriate for those streams. See 62 FR
23008 for a more detailed discussion of EPA's proposal. EPA solicited
comment on whether this held true for the 35 specific waterbodies.
ii. Recent Idaho Actions
To date, Idaho has revised the designated beneficial uses for the
majority of the 35 waterbody segments lacking cold water biota
designations. On February 11, 1997, the state adopted a temporary rule
designating cold water biota for West Fork Blackbird Creek (SB-4211).
By letter dated June 25, 1997, the State submitted to EPA additional
revised water quality standards which were adopted as a temporary rule
by the Idaho Board of Health and Welfare and became effective on June
20, 1997. As part of this revised rule, the State designated 29 of the
35 waterbody segments for cold water biota. By letter dated May 27,
1997, EPA conditionally approved the cold water biota uses for West
Fork Blackbird Creek as being in accordance with the CWA and EPA's
implementing regulations at 40 CFR 131.10. On July 15, 1997, EPA
likewise conditionally approved the June 20, 1997 temporary rule
addressing 29 segments. Therefore EPA is not promulgating cold water
biota for these segments.
Although these revisions meet the substantive requirements of 40
CFR part 131, the State has not completed certain administrative
requirements (e.g., public notice and comment). In addition, the
State's Legislature must also review the revised water quality
standards before the standards become final. If these designated
beneficial uses are adopted as final without modification by the Board
or Legislature, EPA's approval will become unconditional. If they are
modified, EPA's approval will no longer be applicable, and Idaho will
have to resubmit the revised standard to EPA for review and approval.
Because EPA's approval is not yet unconditional, the
[[Page 41166]]
Agency is not withdrawing the proposal for these segments.
Idaho's June 25, 1997, submission included a Use Attainability
Analysis (UAA) for Soda Creek (BB 310) to support its decision not to
designate an aquatic life use (cold water biota) for Soda Creek.
Because of the expedited schedule dictated by the court order, and
because the UAA did not fully explain its conclusions EPA was unable to
conclude its review of the State's UAA. Therefore EPA is maintaining
the cold water biota use designation in today's final rule. If after
such review, EPA is able to conclude that the State's UAA supports the
unattainability of aquatic life for this segment, EPA will initiate
rulemaking to withdraw the federal use designation for Soda Creek.
iii. Comments
While EPA received some general comments that cold water biota was
not uniformly appropriate across the State, we received no data
specific to Shields Gulch, Canyon Creek, or Blackfoot River for which a
cold water biota beneficial use is being designated. In addition the
State commented that they had no water quality data for Shields Gulch
or Blackfoot River.
One commenter stated that cold water biota was not an ``existing''
use for the South Fork Coeur d'Alene River. EPA defines existing uses
at 40 CFR 131.3(g) as ``those uses actually attained in the waterbody
on or after November 28, 1975.'' Information and data obtained from the
Idaho Division of Environmental Quality supports cold water biota as an
existing use for the South Fork Coeur d'Alene River. EPA received no
data to refute this. As for Canyon Creek, although EPA did not receive
information from any commenters which would indicate that cold water
biota is unattainable is this water body segment, information EPA had
on water chemistry in Canyon Creek showed that some parameters are
exceeded. However, based on this information EPA was unable to conclude
that cold water biota use is unattainable. An appropriate evaluation of
use attainability considers physical and biological as well as chemical
indicators.
In addition, none of the commenters specifically contended that a
cold water biota use was unattainable on any of the five streams at
issue on account of compliance costs. To the extent that commenters did
raise cost concerns, EPA's cost methodology indicates that the costs
(which are not direct costs in any event) would be less than predicted
by the commenters. See Section K of the preamble.
iv. Final Rule
Because the State has designated cold water biota for 29 of the
waters in the proposed rule, EPA's final rule addresses only 5 of the
original segments proposed. As stated in the proposed rule, in
designating beneficial uses, EPA is relying on the rebuttable
presumption implicit in the CWA and EPA's regulations at 40 CFR part
131, that in the absence of data to the contrary, ``fishable'' uses are
attainable. As discussed above, the record supports the reasonableness
of this presumption, and none of the comments rebutted it with respect
to any of the water bodies for which EPA is promulgating designated
uses. In the future, if additional data indicate that the promulgated
uses are not appropriate, EPA's final rule can be revised and/or
withdrawn.
For the reasons described above, EPA is promulgating cold water
biota as a designated beneficial use for the following 5 segments:
Canyon Creek (below mining impact)--PB 121S, South Fork Coeur d'Alene
River (Daisy Gulch to mouth)--PB 140S, Shields Gulch (below mining
impact)--PB 148S, Blackfoot River--USB 360, and Soda Creek--BB 310.
3. Salmonid Spawning
i. Proposal
In conferring with National Marine Fisheries Service prior to EPA's
April 28, 1997, proposed rule, EPA obtained preliminary data indicating
that for West Fork Blackbird Creek, Grasshopper Creek, Little Bear
Creek, Blackbird Creek and Panther Creek, salmonid spawning was an
appropriate designated beneficial use to ensure ``fishable'' water
quality for these five water body segments. The data indicated the
presence of salmonids and therefore EPA concluded salmonid spawning was
an existing use. Based on this information EPA proposed salmonid
spawning as a designated beneficial use for these segments.
ii. Recent Idaho Actions
On February 11, 1997, Idaho designated salmonid spawning biota for
West Fork Blackbird Creek (SB-4211). By letter dated May 27, 1997, EPA
conditionally approved this use designation. As part of Idaho's June 20
temporary rule (by letter dated June 25, 1997) salmonid spawning was
also designated a beneficial use for Little Bear Creek, Blackbird Creek
and Panther Creek. The State did not designate Grasshopper Creek for
salmonid spawning as data it had for this creek indicated that salmonid
spawning was not an appropriate use.
With regard to Panther Creek, EPA understands that the State
intended to designate this creek for salmonid spawning but that,
because of a typographical error, the chart in the temporary rule did
not reflect salmonid spawning for this segment. By letter dated July
10, 1997, Idaho explained that on July 22, 1997 the Idaho Board of
Health and Welfare will be requested to amend the temporary rule to
correct this error. This error is expected to be corrected shortly.
On July 15, 1997, EPA conditionally approved salmonid spawning use
designation for Little Bear Creek and Blackbird Creek. Because EPA's
approval is not yet unconditional, the Agency is not withdrawing the
proposal for these segments.
iii. Comments
EPA received additional information since the proposed rule which
indicates that salmonid spawning is not an appropriate use for
Grasshopper Creek. EPA determined that although Grasshopper Creek may
have the potential to support salmonid spawning as a future designated
beneficial use, insufficient data exist to justify this use designation
at this time. Therefore neither the State's revisions nor EPA's final
rule designates salmonid spawning for Grasshopper Creek.
4. Waters Located in Indian Country
After the proposal was published, EPA ascertained that certain
streams that EPA disapproved on June 25, 1997, were located in Indian
country. EPA's National Indian Policy recognizes Tribal governments as
the primary parties for setting standards and for making environmental
policy decisions affecting their reservation environments, consistent
with Agency standards and regulations. In a memorandum by President
Clinton dated April 29, 1994, each executive agency is instructed to
operate within a government-to-government relationship with federally
recognized tribal governments. EPA is to consult, to the greatest
extent practicable and to the extent permitted by law, with tribal
governments prior to taking actions that affect federally recognized
tribal governments. The President's memorandum also states that
executive departments and agencies shall assure that tribal government
rights and concerns are considered during the development of plans,
programs, and activities affecting tribal trust resources. EPA
determined that promulgation of these designated uses could be viewed
as such an action, and
[[Page 41167]]
so sought consultation before proceeding. After consultation with the
relevant tribal governments, EPA determined that it would not be
appropriate to proceed with the designation of uses for these streams
at this time.
In this case, the proposal to designate uses on streams wholly or
partially in Indian country was unintentional and inadvertent, done
without forethought towards either the desires of the tribal
authorities or how these designated uses would have functioned in the
absence of a complete set of water quality standards (e.g.,
accompanying criteria, an antidegradation policy). The tribal
authorities were unanimous in their wish that EPA not proceed with
designating these beneficial uses, preferring instead to approach the
water quality standards in a holistic manner and within a time frame
that accommodates other tribal priorities.
As a result of this consultation process, portions of Hangman Creek
(PB 450S), Three Mile Creek (CB 1321), Cottonwood Creek (CB 1322),
Blackfoot River (USB 360) and Bannock Creek (USB 430), which are
partially located in Indian country are being excluded from this rule,
as well as the entirety of Plummer Creek (PB 340S), Cottonwood Creek
(CB 152) and Rock Creek (PB 451S). If not in Indian country, Plummer
Creek and Cottonwood Creek (CB 152) would have been excluded because
the state has adopted acceptable uses for them.
E. Temperature Criteria for Threatened and Endangered Species
1. Bull Trout
i. Temperature Criteria
a. Proposal. The temperature criteria in Idaho's 1994 submittal
applicable to the cold water biota use classification (22 deg.C or less
with a maximum daily average of 19 deg.C) and salmonid spawning use
classification (13 deg.C or less with a maximum daily average of
9 deg.C) does not provide an adequate level of protection for bull
trout. Therefore, on June 25, 1996, EPA disapproved Idaho's temperature
criteria applicable within geographic ranges where bull trout occur.
EPA derived the proposed temperature criteria for Idaho streams
designated as bull trout habitat using EPA's temperature criteria
guidance (Temperature Criteria for Freshwater Fish: Protocol and
Procedures; U.S. EPA, 1977). The EPA protocol recommends expression of
temperature criteria in two forms: (1) a short-term maxima (protection
against lethal conditions, usually for a duration of 24 hours), and (2)
a mean temperature value (expressed as the maximum weekly average
temperature) that is designed to protect critical life stage functions
such as spawning, embryogenesis, growth, maturation and development.
Sufficient data were available to derive temperature criteria as
maximum weekly average temperatures (MWAT) that EPA determined would be
protective of various bull trout life stages, including spawning, egg
incubation, juvenile rearing and adult migration. Because of the
complex life history of bull trout, EPA proposed temperature criteria
which would span a calendar year, but that would vary depending on the
presence and thermal tolerances of various bull trout life stages. See
62 FR 23012 for a more detailed discussion of EPA's proposal.
b. Recent Idaho Actions. On June 20, 1997, Idaho adopted a
temporary rule with revised temperature criteria for bull trout. The
State's rule established a seven-day moving average of 12 deg.C based
on daily average water temperatures, or shall not exceed a seven-day
moving average of 15 deg.C based on daily maximum water temperatures
during July, August and September.
Although Idaho has revised the temperature criteria applicable to
bull trout, the State did not provide information explaining the
scientific basis for the criteria. The Water Quality Standards
Regulations at 40 CFR 131.11(a) state, in part, that states must adopt
criteria to protect designated uses and that such criteria must be
based on ``sound scientific rationale.'' EPA was unable to determine,
based on the State's submission or other information available to EPA,
what the scientific rationale was for Idaho's 1997 temperature.
Therefore, EPA was unable to determine that Idaho's 1997 temperature
criteria are protective of bull trout spawning and rearing.
Because EPA was unable to determine that Idaho's criteria are
protective of bull trout spawning and rearing, EPA disapproved Idaho's
1997 temperature criteria for bull trout on July 15, 1997. Therefore,
EPA is proceeding with a federal promulgation of temperature criteria
for bull trout as required by Sec. 303(c) of the CWA. If at a later
date, Idaho submits a scientific rationale in support of the 1997
criteria, and EPA is able to determine that the technical basis is
consistent with 40 CFR 131.11, then EPA will initiate rulemaking to
withdraw the federal criteria in today's rule.
c. Comments. Comment: Commenters asserted that EPA lacks authority
to disapprove Idaho's temperature criteria as they relate to bull
trout, and hence lacks authority to promulgate federal temperature
criteria for bull trout. According to these commenters, under 40 CFR
131.5, EPA's limited role in overseeing state WQS is to ensure that
states designate uses and establish criteria to protect the designated
uses. Because Idaho had designated a use of ``cold water biota,'' and
had criteria protective of that use, EPA lacks authority to disapprove
Idaho's temperature criteria as they relate to bull trout. One
commenter cited language in the preamble to the 1983 revisions to part
131 which the commenter claimed evidenced that EPA did not intend to
second guess states on their choices of designated uses. Commenters
argued that, in setting temperature criteria for bull trout, EPA was
essentially creating a new beneficial use, which would be a subcategory
of cold water biota, and that it is beyond EPA's authority to designate
subcategories of uses. Commenters also asserted that it has been EPA's
longstanding position that protection of specific species within the
fishable use designation is left solely to the discretion of the state.
Response: EPA agrees that its role in reviewing state water quality
criteria is to ensure the criteria are protective of designated uses.
However, EPA must also ensure that the state has designated uses
consistent with the goals of the CWA, including the ``fishable/
swimmable'' goals. EPA therefore does not agree with the commenters''
implication that a state has unfettered discretion in how it designates
uses. Section 131.10(a) provides that ``[e]ach State must specify
appropriate water uses to be achieved and protected,'' taking into
account the various goals of the CWA (emphasis added). It follows that
EPA must disapprove a state's use designations if they are not
appropriate in light of those goals.
The commenters' argument that a state has absolute discretion
concerning when to designate subcategories of uses misconstrues the
intent of EPA's regulations. These commenters point to Sec. 131.10(c),
which provides that ``[s]tates may adopt sub-categories of a use.'' It
is true that a state need not adopt subcategories. However, the
regulations require a state to designate appropriate uses given the
goals of the CWA, and to adopt criteria protective of those uses. So,
for instance, if the weight of evidence shows that salmonid spawning is
an appropriate use, a state must adopt criteria protective of that use.
In such a situation, a state may choose whether to designate
subcategories of uses applicable to
[[Page 41168]]
particular waters, so that criteria protective of salmonid spawning can
be narrowly targeted to those areas where they are needed, or in the
alternative to designate only one ``fishable'' use and apply it
throughout the state. However, if it is the latter, the criteria
accompanying that use would have to be protective of salmonid spawning,
because a state could not designate a single ``fishable'' use and then
adopt criteria protective of some fish but not others. For this reason,
most states in such a situation would be likely to designate
subcategories of uses even though not required to by EPA's regulation.
See also EPA's response to the next comment below.
As explained in EPA's June 25, 1996 disapproval letter, the state
failed to do either of these fully. While Idaho had a salmonid spawning
subcategory with criteria intended to be protective of bull trout, it
did not apply this subcategory to all bull trout waters. At the same
time, cold water biota temperature criteria, which do apply to, among
other things, all bull trout waters, were not stringent enough to
protect bull trout. EPA is promulgating more stringent temperature
criteria to protect bull trout in those waters where they are present.
It is clearly within EPA's authority to promulgate standards meeting
the requirements of the Act that support this use.
Regarding the assertion that it is EPA's longstanding policy to
defer to state's designation of uses, EPA believes this is incorrect to
the extent it implies that EPA will defer to use designations that do
not meet the requirements of the CWA. EPA notes that these commenters
did not offer any specifics to support their claim. In the preamble to
the 1983 revisions to 40 CFR Part 131 EPA stated that, ``for EPA to
mandate certain levels of aquatic life protection within a use would
override the primary authority of the state to adopt use
classifications and supporting criteria through public hearings.'' 48
FR 51410. This and other statements were made in response to comments
urging EPA to adopt national minimum levels of protection for water
quality. EPA's 1983 preamble response is generally reflective of the
structure and purpose of section 303, which contemplates that the duty
to establish water quality standards lies with the state in the first
instance. However, it is just as apparent from the structure of the Act
and EPA's regulations that EPA's oversight role carries with it an
obligation to act so that the requirements of the Act are met. The
commenters' argument that EPA must always defer to a state's choices
regarding designation of uses and levels of protection is clearly
contrary to this oversight responsibility.
Comment: A number of commenters questioned EPA's authority to
promulgate temperature criteria for bull trout. Several commenters
pointed out that, since bull trout have not yet been listed as
endangered or threatened, EPA could not rely on the authority of the
ESA to support its action. Commenters also argued that, in setting
temperature criteria for bull trout, EPA is attempting to designate
``critical habitat'' under the ESA without following proper ESA
procedures. Commenters noted a number of alleged failures to follow
proper ESA procedure for bull trout. Commenters also argued that, the
ESA aside, EPA lacks authority under the CWA to promulgate temperature
criteria for bull trout. These commenters asserted that the CWA does
not require states to protect the most sensitive species under the
``fishable'' use, and that likewise, the CWA does not authorize EPA to
promulgate criteria protective of the most sensitive species of fish.
Response: EPA acknowledges that the proposal's explanation of
statutory authority to promulgate temperature criteria focused on the
ESA rather than the CWA, when it should have given equal standing to
both statutes. This confusion occurred because two of the species being
addressed, snails and sturgeon, have been listed pursuant to the ESA.
For bull trout, EPA is relying on its CWA authority to promulgate
criteria protective of appropriate uses. Some commenters apparently
inferred this anyway, as several commented extensively on the authority
under the CWA to promulgate criteria protective of bull trout. Because
EPA is relying on CWA authority for bull trout criteria, it follows
that adherence to ESA procedures for bull trout are not at issue here.
In developing criteria for bull trout, EPA has used the best
available information to determine the location of bull trout spawning
and rearing, and has developed temperature criteria protective of
spawning and rearing based upon its review of the literature and the
comments received. EPA believes this analysis, described in detail
above, follows the mandate of section 131.11(a)(1) that water quality
standards criteria ``be based on sound scientific rationale and [ ]
contain sufficient parameters or constituents to protect the designated
uses.''
EPA believes the CWA and EPA's regulations require that criteria be
protective of the most sensitive species within the ``fishable'' use.
Protecting a use category such as ``fishable,'' or a subcategory such
as ``cold water biota,'' plainly must mean protecting all of the
species-specific activities that occur within that category, including
the most sensitive. The position advocated by commenters--that not all
species or activities within a use category need to be protected--would
lead to results that are obviously contrary to the goals of the Act.
These commenters do not explain how they would resolve the question of
which species within a use category would have to be protected and
which not. Presumably, the commenters's approach would allow states to
pick and choose which species within a use category are deserving of
protection. It would therefore allow a state to establish criteria
protective of only the least sensitive aquatic species, while ignoring
the rest. EPA believes, to the contrary, that the only reasonable
reading of the Act and EPA's regulations requires that water quality
standards protect for all aquatic life that are present or normally
expected to be present, to the extent supported by the factual record.
Today's promulgation helps to fulfill this requirement by establishing
criteria protective of bull trout to the extent supported by sound
scientific rationale.
Comment: One commenter suggested that EPA's criteria should be
consistent with the four-state region in which bull trout are found,
with specific reference to Oregon's recently adopted criteria. Other
commenters also referenced Oregon's criteria as an acceptable option.
Response: As EPA works with each state during the triennial review
process, information on the approaches utilized by adjacent states is
shared and considered. EPA reviewed Oregon's temperature criteria and
technical support documents during the development of this rule.
Following further review of the literature, EPA is adopting a criteria
equivalent to that recently adopted by the State of Oregon.
Comment: Several commenters challenged EPA's use of the maximum
weekly average temperature (MWAT). These commenters asserted that the
criteria, measured as average daily temperatures, was not adequately
protective. They indicated that by allowing a weekly mean it is
feasible that the daily temperature regime could be 10 deg.C +/
-5 deg.C. One suggested that it would be more biologically defensible
for EPA to find a means to limit maximum temperatures or diel
fluctuations at the same time as ensuring that MWAT does not exceed
fixed limits. Several of the commenters suggested using a 7-day average
of daily maximum temperatures, some
[[Page 41169]]
commenters favoring this approach because it would provide greater
protection, others for the relative ease and practicality of
implementation.
Response: EPA has revised its proposal to account for potential
impacts from diurnal fluctuations and is promulgating a maximum weekly
maximum temperature (MWMT) criterion, based on an average of the daily
maximum for a moving consecutive 7-day period. EPA's criteria guidance
documents, which were followed in the development of the proposed
criteria, recommend that an instantaneous maxima be adopted in
association with the MWAT to provide, in part, protection from diurnal
fluctuations. EPA was unable to determine from the literature and field
data a fixed instantaneous maxima and therefore did not include a
maxima criterion in the proposed rule. Following consideration of
comments and the literature, it was determined that protection from
maximum temperatures was needed to protect the species. Therefore, EPA
modified the proposed rule and is changing from the proposed MWAT
approach to the MWMT adopted in this rule. The MWMT is believed to
provide greater protection over temperature maxima compared to the MWAT
and is consistent with other temperature criteria recommended for bull
trout.
Comment: Several commenters suggested that EPA needed to modify the
bull trout criteria to account for natural conditions and the natural
variability.
Response: In reviewing data on temperature and bull trout presence/
absence, EPA found streams supporting bull trout populations where
summer maxima temperatures exceeded 10 deg.C and where summer maxima
were somewhat cooler. However, most commenters only provided data on
presence and absence of bull trout and did not provide data on the
health of these populations. EPA was therefore unable to conclude based
on this data that bull trout are fully supported at temperatures above
10 deg.C. Presence and absence data may be best suited for establishing
the limits of bull trout distribution. However, data on presence and
absence, without supporting information on abundance or population
health, does not enable definitive determinations of criteria that will
be protective. Protection of optimal conditions is essential if a
species is to be protected with an adequate margin of safety, and is
also desirable because bull trout have been proposed to be listed as a
``threatened species'' under the Endangered Species Act. Maintenance of
optimal conditions is considered important in the restoration of the
population.
Nevertheless, EPA acknowledges the difficulties and uncertainty
that exists in defining absolute, numeric temperature criteria that
account for all types of natural and site-specific variability in
stream temperatures (both spatially and temporally) found among Idaho
streams. For example, availability of cold water refugia may ameliorate
the impacts of suboptimal temperatures under some circumstances and
might result in supporting bull trout populations. However, sufficient
data was not available to determine exactly how much cold water refugia
must be available (and when and how long it must be available) to
support bull trout populations experiencing otherwise suboptimal
conditions. The promulgation of a single criterion necessarily rests on
assumptions about the consistency of conditions among Idaho streams.
EPA believes the assumptions made here are reasonable, and are in any
case unavoidable in this instance, due to the lack of site-specific
data. In addition, to address concerns about the site-specific nature
of temperature criteria for bull trout, EPA has included a provision in
today's rule providing a streamlined mechanism for modifying the
promulgated criterion on a site-specific basis.
Comment: Several commenters requested that EPA modify the criteria
and suggested summer criteria values of 15 deg.C, 12 deg.C and
10 deg.C, expressed as a seven-day average of daily maximum
temperatures (or in some cases seven-day average of daily average
temperatures), as a more appropriate criteria. Several of these
commenters cited literature to support their case that the proposed
criteria was either over-or under-protective and that EPA should either
raise or lower the proposed criteria.
Response: EPA has reviewed the literature and available field data
to support its derivation of appropriate temperature criteria for bull
trout. Based on this review, EPA decided to modify its proposed
temperature criteria to reflect criteria for the protection of spawning
and juvenile rearing, bull trout life stages considered most critical
and most at risk from thermal impacts. Based on temperatures judged to
be required for maintaining optimal juvenile growth and rearing, and
the initiation of adult spawning, EPA established a criterion of
10 deg.C expressed as a consecutive seven-day average of daily maximum
temperatures for June, July, August and September. EPA acknowledges
that juvenile bull trout can be found in streams with temperatures
reported to be higher than 10 deg.C, but that available information
suggests that temperatures approaching 15 deg.C reflect suboptimal
conditions for juvenile rearing and growth and that optimal conditions
are closer to 10 deg.C. Furthermore, available data indicates that
temperatures at or below 9-10 deg.C are required to initiate spawning,
which can begin in mid-to late-August.
Comment: Several commenters suggested that EPA's criterion should
only apply to those periods where temperature conditions are critical
to bull trout; late summer and fall. Several of these commenters
suggested that, due to the predictable pattern of stream temperatures
over a year in a given channel, that a standard which addresses stream
temperatures at the most critical time of the year would also
adequately address stream temperature throughout the rest of the year.
One commenter suggested that such a change was necessary to account for
the natural variations which are present from year to year.
Response: EPA agrees with the commenters and is promulgating a
criterion which is to be applied during June, July, August and
September, as these times are defined in the literature as critical
period for spawning and juvenile rearing of bull trout. Such criteria
enable greater flexibility due to natural variability and focus on the
life stages considered most critical and vulnerable to high
temperatures.
Comment: Several commenters suggested that EPA should, to various
degrees, rely on the Governor's Bull Trout Conservation Plan for the
protection and recovery of bull trout. Other commenters supported EPA
in not relying on the Governor's Bull Trout Conservation Plan.
Response: EPA has reviewed the Governor's Bull Trout Conservation
Plan and has determined that although this plan sets forth a strategy
towards the maintenance and restoration of the complex interacting
groups of native bull trout populations throughout Idaho it falls short
of meeting the requirements of section 303(c) of the Clean Water Act.
Specifically, the plan does not adopt a temperature criterion
protective of bull trout nor does it specifically identify waters in
which bull trout are present.
Comment: One commenter suggested that the proposal was
oversimplified and did not account for the migratory characteristics of
bull trout or the need for healthy riparian habitat. Several other
commenters also mentioned that EPA should expand the scope of the rule
to also address the habitat requirements of the bull trout.
[[Page 41170]]
Response: The only portion of Idaho's criterion, relative to the
protection of bull trout, which was disapproved in EPA's June 25, 1996
disapproval letter was the temperature criteria in place to protect
bull trout. Since EPA's authority to promulgate is limited to those
items which are submitted to EPA for review and approval/disapproval
and which EPA disapproves, EPA does not have the authority to
promulgate habitat criteria under this rule.
Comment: Two commenters suggested that the current cold water biota
criteria are not protective of the adult life stages of bull trout and
thus a temperature criteria applicable to adult life stages should also
be promulgated. One commenter suggested that this criteria be
established at 12 deg. C and another suggested an annual maximum
temperature criteria of 15 deg. C.
Response: Available information indicates that juvenile rearing and
adult spawning are the life stages that most limit bull trout (and
other salmonid) production. Available data also suggests that bull
trout distribution is best defined by maximum summer temperatures and
that these life stages are currently most vulnerable to increased
temperatures in the summer and early fall. In general, less information
is known about the temperature requirements and locations of adult bull
trout and migratory corridors compared to other life stages. EPA
concluded that the information available was not sufficient to support
going forward with temperature criteria for adult bull trout at this
time. Therefore, given the importance of juvenile and spawning life
stages to bull trout production and EPA is promulgating temperature
criteria designed specifically for the protection of natal juvenile
rearing and spawning areas. EPA believes that if these criteria are
met, natural variability in stream temperatures will result in
attainment of appropriate temperatures during other times of the year.
Comment: Several commenters noted that the proposed criteria were
unrealistic and were not achievable.
Response: The bull trout temperature criteria adopted under this
rule were determined based on EPA's evaluation of the literature and
available field data. EPA recognizes that there are streams where bull
trout are present at higher temperatures than those adopted under this
rule but in most cases, information was not available to determine the
relative health of these populations. However, because several factors
can act to alter temperature impacts on bull trout which can vary on a
site-specific basis (e.g., availability of cold water refugia), EPA has
provided a streamlined mechanism through which criteria for specific
streams may be modified. This mechanism should provide relief in
streams which do support bull trout populations yet the criteria
adopted under this rule are unachieveable.
d. Final Rule. In order to provide the level of protection required
under the Clean Water Act, EPA is promulgating a site-specific
temperature criterion for those waterbody segments where bull trout
spawn and juvenile bull trout rear. EPA's action supersedes the State's
temperature criterion only for the specific waterbodies listed in
Sec. 131.33(a)(2) of the final rule.
As indicated in the rule language itself, the bull trout
temperature criterion does not apply to waters located in Indian
country, to the extent any may be implicated in the waters listed in
Sec. 131.33(a)(2). Although the proposal did not address this
possibility, it was never EPA's intent to promulgate temperature
criteria for waters in Indian country. The purpose of this rulemaking
is to promulgate standards for waters that are outside of Indian
country and for which certain State standards were found to be
inadequate. EPA has consulted with the appropriate tribal authorities.
All affected tribal governments requested that EPA allow the Tribes to
develop their own standards for their reservations and thus not include
tribal waters in today's promulgation. See section D.4 above.
Because the data indicate there may be aberrational segments where
bull trout have slightly different temperature ranges, and because
future information may make it possible to refine the list of
waterbodies where bull trout spawn and juvenile bull trout rear, the
final rule provides a mechanism for adjusting the bull trout
temperature criterion on a site-specific basis. This provision is
discussed in more detail below.
This Rule establishes a maximum weekly maximum temperature (MWMT)
criterion of 10 deg.C for the months of June, July, August and
September for the protection of bull trout spawning and juvenile
rearing in natal streams, expressed as an average of daily maximum
temperatures over a consecutive 7-day period. This criterion are
focussed on reproduction (adult spawning) and juvenile rearing life
stages because these have been cited as critical life stages or
``ecological bottlenecks'' limiting the production of salmonids,
including bull trout (Goetz, 1989; McPhail and Murray, 1979).
Furthermore, high temperatures during summer have most often been
reported as a factor limiting the distribution and abundance of bull
trout, with juvenile rearing and adult spawning being considered as the
life stages most at risk from high summer and fall temperatures
(Buchanan and Gregory, 1997; ORDEQ, 1995; Shepard et al., 1984; Fraley
and Shepard, 1989; Goetz, 1989; Riehle, 1993). EPA believes that these
criteria are adequately protective of bull trout in that they provide
explicit protection for the most critical and vulnerable life stages.
Further, EPA believes that during other times of the year, natural
seasonal variability in stream temperatures and temperature controls
established to meet summer maximum criteria, if operated, will likely
result in attainment of adequate temperatures during the remainder of
the year. These criteria are also consistent with other temperature
criteria that have been established or recommended to protect bull
trout (Buchanan and Gregory, 1997; ORDEQ, 1995; and the U.S. Forest
Service's Inland Native Fish Strategy).
For several reasons, EPA decided to express the final temperature
criteria for bull trout as a consecutive seven-day average of daily
maximums (MWMT) rather than a consecutive seven-day average of daily
averages (MWAT) as originally proposed. Greater diurnal fluctuations
around the mean daily temperature can be one effect of intensive
watershed management (e.g., loss of riparian vegetative cover). For
this and other reasons, EPA's Guidelines for deriving temperature
criteria recommend both longer-term average criteria (MWAT) and short-
term maximum criteria. However, after reviewing the literature on bull
trout temperature requirements and considering comments on EPA's
proposed bull trout temperature criteria, EPA concludes that the
available data were insufficient to derive temperature criteria to be
protective of short-term temperature extremes (e.g., daily maxima). As
asserted by several commenters, use of a MWAT without some control on
the daily maxima might not adequately reflect such increases in diurnal
variability where the mean temperatures do not change substantially.
Therefore, EPA agrees that greater control over thermal maxima is
desired and that while use of the two-number criterion is most
desirable (i.e., weekly average and daily maximum), in the face of
insufficient data, use of a MWMT is appropriate. In addition, use of
the MWMT is consistent with other temperature criteria that have been
established or recommended to protect bull trout (Buchanan and Gregory,
1997; ORDEQ, 1995; and the U.S. Forest
[[Page 41171]]
Service's Inland Native Fish Strategy). EPA's expression of the
criterion in terms of a consecutive seven-day average of daily
maximums, however, will provide for a mean daily temperature that are
somewhat below (possibly several degrees) the maximum, depending upon
stream hydrology and watershed characteristics.
Maintenance of this criterion for spawning and juvenile bull trout
rearing in their natal streams in the summer months (June, July, August
and September) should result in attainment of appropriate thermal
conditions for other life stages (i.e., adult holding and migration)
during the remainder of the year. The restrictions on lowering water
quality provided for in the Tier 2 provisions of Antidegradation will
serve as further insurance.
EPA has considered the comments and data submitted, evaluated the
literature, and conferred with fisheries scientists from the Idaho
Department of Fish and Game, U.S. Fish and Wildlife Service, U.S.
Forest Service (USFS), U.S. Bureau of Land Management (BLM) and the
Interior Columbia River Basin Ecosystem Management Project (USFS, BLM)
in revising the proposed criterion to be protective of bull trout
spawning and juvenile rearing and meet the goals of the Clean Water
Act.
This revised criterion is within the range of maximum summer
temperatures associated with optimal juvenile bull trout rearing
(higher densities when known) in watersheds in Idaho, Oregon, Montana,
British Columbia and Alberta. Protection of optimal conditions is
desirable because Columbia River Basin bull trout populations have
recently been proposed by the U.S. Fish and Wildlife Service for
listing as a ``threatened species'' under the Endangered Species Act.
It is recognized that some authors have found sites with juvenile bull
trout present, which have warmer summer maxima (Fraley and Shepard,
1989; Saffel and Scarnecchia, 1995; Adams, 1994; Thurow and Schill,
1996), while others have noted sites with cooler summer maxima (McPhail
and Murray, 1979; Ratliff, 1992; Riehle, 1993). In many such studies,
information on thermal conditions supporting optimal densities is
lacking.
The literature indicates that bull trout may be one of the most
intolerant species of salmonids to warm temperatures. Buchanan and
Gregory (1997) summarized that, to provide adequate protection for cold
water species like bull trout, water temperature criteria must be
substantially lower than traditional criteria, and must accommodate
seasonal requirements of specific life history stages. Also, they
suggested that slight increases in water temperature can tip the
balance of competitive interactions to the detriment of coldwater
species, even though temperature criteria would be well within the
thermal requirements of the species. Rieman and McIntyre (1993)
suggested that water temperature is likely to be an important and
inflexible habitat requirement for bull trout.
Cavender (1977) noted that bull trout have an affinity for cold
waters fed by mountain glaciers and snowfields. Also, Rich (1996) found
that bull trout were more likely to occur in mountain streams with
northerly aspects. Rieman and McIntyre (1995) found juvenile bull trout
at elevations as low as 1520 m, but the frequency of juvenile bull
trout occurrence increased sharply at about 1600 m, from this
observation they assumed that 1600 m is the lower limit of spawning and
initial juvenile rearing of bull trout in the Boise River, and
suggested that this was influenced by stream temperature.
Pratt (1992) also noted that water temperature may be an important
feature of juvenile bull trout habitat. Bull trout spawn in late summer
through fall (late August-November) and have a long egg incubation
period (typically lasting from early fall to April). High temperatures,
therefore, are a concern for inhibiting spawning, as well as limiting
its success in the late summer and early fall. Saffel and Scarnecchia
(1995) indicated that high temperatures may be physiologically
constraining on juvenile bull trout. Shephard et al. (1984) found that
fish growth decreased during the warmer summer months despite increased
primary productivity.
EPA's establishment of this criterion for bull trout spawning and
juvenile rearing is consistent with other temperature management
objectives and criteria recently adopted by state and federal natural
resource management agencies, as noted in the following examples:
(1) The State of Idaho, through the Governor's 1996 Bull Trout
Conservation Plan, recently recognized the unique temperature
requirements for all life stages of bull trout. The Plan indicated that
bull trout require temperatures between 9 and 15 deg.C, with spawning
success increasing at temperatures less than 10 deg.C and optimum
spawning temperatures being 2 to 4 deg.C.
(2) The U.S. Forest Service's Inland Native Fish Strategy (1995)
for its Intermountain, Northern and Pacific Northwest Regions contains
Interim Riparian Management Objectives for desired conditions for fish
habitat of inland native fish, which includes bull trout. The interim
objective for water temperature is a maximum water temperatures below
59 deg.F (15 deg.C) within adult holding habitat and below 48 deg.F
(9 deg.C) within spawning and rearing habitats, measured as a 7-day
moving average of daily maximum temperatures. These temperatures were
recommended and supported by the U.S. Fish & Wildlife Service, a full
partner in the development of the Strategy and its Environmental
Assessment.
(3) The Oregon Department of Environmental Quality (ODEQ) recently
conducted an extensive evaluation of the effect of water temperature on
bull trout in its Final Issue Paper--Temperature, 1992-1994 Water
Quality Standards Review (ODEQ, 1995). The State of Oregon adopted the
following:
An absolute numeric criterion of 10 deg.C (50 deg.F) based on a
7-day average of the maximum daily temperature for waters of Oregon
determined by Department of Environmental Quality to support or to
be necessary to maintain the viability of native bull trout. If
temperature exceed 10 deg.C (50 deg.F), the stream and riparian
conditions would be required to be restored or allowed to return to
the most unaltered condition feasible for the purpose of attaining
the coldest streams temperature possible under natural background
conditions.
Buchanan and Gregory (1997), as members of the temperature
technical subcommittee for the above water quality standards revisions,
found that the literature supported an optimal temperature range for
both bull trout spawning and juvenile rearing of 4-10 deg.C. This was
presented in Figure 2-3, Bull Trout Temperature Requirements by Life
History Stage and Time Period as Reported in the General Literature,
for the Final Issue Paper--Temperature (ODEQ, 1995).
I. Spawning.
Based on EPA's review of the literature, a stream temperature range
of 4-10 deg.C appears to be necessary to maintain successful bull trout
spawning, although it appears that bull trout do seek out colder
temperatures. A number of authors have noted the temperature appears to
be a critical factor with the initiation of spawning migrations
occurring at 9-10 deg.C. A temperature range of 6-8 deg.C is believed
to approximate the optimum spawning temperatures of bull trout (Idaho
Department of Fish and Game).
Heimer (1965) noted that areas with cooler water temperatures (9-
10 deg.C) in the Clark Fork River, Idaho, attracted
[[Page 41172]]
bull trout during the spawning season, and that there was especially
high spawning use in these areas with groundwater upwelling. The
average daily maximum temperature during peak redd construction in the
Flathead River, Montana tributaries was 8-9 deg.C, although some
spawning activity was observed in water temperatures as high as
12 deg.C (Flathead River Basin Steering Committee, 1983). Fraley and
Shephard (1989) found in the Flathead River drainage that the
initiation of spawning appeared to be related largely to water
temperatures of 9-10 deg.C. This temperature was also described by
McPhail and Murray (1979) as the threshold temperature for the
initiation of spawning in Mackenzie Creek in British Columbia. Shepard
et al. (1984) found that bull trout spawning activity began when
maximum daily water temperatures dropped below 9 deg.C.
Swanberg (1996) suggested that bull trout begin their upriver
migrations in the fall in the Blackfoot River, Montana, as a result of
spikes in a fluctuating temperature regime, and that these migrations
are done in order to seek refuge in cooler tributaries. Other authors
have made similar observations in Rapid River, Idaho drainage where
bull trout initiated upriver migrations to spawn when water
temperatures reach 10 deg.C or above (Elle et al., 1994; Elle, 1995).
Schill et al. (1994) also noted in Rapid River that at the start of
spawning season pairing behavior began after the average water
temperature dropped sharply from 10 deg.C-6.5 deg.C.
II. Egg Incubation.
EPA has reviewed the literature and examined temperature data from
several bull trout streams in Idaho, Oregon, and Montana and has found
that, if summer temperatures, June to September, meet EPA's temperature
criterion, late fall and winter temperatures should provide for
successful bull trout egg incubation. Incubation of bull trout eggs
requires temperatures ranging from 1 to 6 deg.C and occurs at optimum
temperatures of approximately 4 deg.C (ODEQ, 1995; Weaver and White,
1985; McPhail and Murray, 1979; Carl, 1985).
Fraley and Shephard (1989) reported water temperatures of 1.2-
5.4 deg.C for the successful incubation of bull trout embryos. McPhail
and Murray (1979) noted that bull trout egg-to-fry survival varied with
different water temperatures of 0-20%, 60-90% and 80-95% of the eggs
survived to hatching in water temperatures of 8-10 deg.C, 6 deg.C and
2-4 deg.C, respectively. Weaver and White (1985) report 4-6 deg.C as
being needed for egg incubation of bull trout embryos in Montana
streams. Hatching of eggs generally occurs 100 to 145 days after
spawning, with bull trout alevins requiring at least 65 to 90 days
after hatching to absorb their yolk sacs (Pratt, 1992). As such,
incubation occurs from late fall to early spring, a period in which the
temperatures in the headwater streams in which bull trout spawn will be
low due to natural seasonal water temperature patterns. Weaver and
White (1985) observed stream temperatures of 1.2 to 5.4 deg.C during
the incubation period of October to March.
III. Juvenile Rearing.
Goetz (1989) noted that the maximum summer temperature is a
controller of juvenile bull trout distribution. Temperatures less than
12 deg.C appear to be most suitable for juvenile rearing, with optimal
conditions for rearing and growth occurring between 4 and 10 deg.C
(ODEQ, 1995). Based on field observations of the presence of juvenile
bull trout in Idaho streams, 12 deg.C also appears to be a maximum
temperature where juveniles are found (Idaho Department of Fish and
Game).
Pratt (1985) found juvenile bull trout predominately in the upper
and middle reaches of Lake Pend Oreille tributaries. Saffel and
Scarnecchia (1995) observed that the density of juvenile bull trout was
negatively related with the maximum summer temperature in six
tributaries of Lake Pend Oreille. They found the highest number of
juvenile bull trout in streams where the summer maxima ranged from 7.8
to 13.9 deg.C. Juveniles will reside in their natal streams for two to
five years (Carl, 1985).
Pratt (1984) observed only juvenile bull trout in habitats with
temperatures of 5-12 deg.C influenced by cold springs (5 deg.C).
Shepard et al. (1984) also observed the highest densities of juvenile
bull trout in stream reaches in the Flathead River basin which were
associated with cold perennial springs. Bonneau and Scarnecchia (1996)
found that juvenile bull trout predominately (94%) chose the coldest
water available (8-9 deg.C) in a plunge pool, which contained a strong
side-to-side thermal gradient (8-15 deg.C) at the confluence of
Sullivan Springs and Granite Creek, tributary to Lake Pend Oreille.
These juvenile bull trout were observed to avoid the remaining pool
habitat area (76%), which had temperatures of 9.1-15 deg.C. Similarly,
juvenile bull trout were observed only in the middle reach of Sun
Creek, Oregon, where heavy influxes of groundwater more than doubled
the stream flow (Dambacher et al., 1992). The middle reach of Sun Creek
reported August temperatures ranging from 5.6-10 deg.C.
Shepard et al. (1984) reported the highest densities of bull trout
in Montana streams at temperatures of 12 deg.C and below, some presence
of bull trout at 15-18 deg.C, and complete absence of bull trout in
streams with temperatures exceeding 19 deg.C. Adams (1994) observed
various life stages of bull trout in four streams in the Weiser River,
Idaho, drainage where the average daily temperatures were from 2-
12 deg.C, and summer maxima as high as 20 deg.C, although some
groundwater influxes did provide cool water sanctuaries, but the extent
was unknown. These high temperatures were suggested to limit downstream
distribution for bull trout.
Fraley and Shepard (1989) noted that juvenile bull trout were
rarely observed in streams with maximum water temperatures at or above
15 deg.C, and were found close to the substrate at those temperatures.
Also, they found that juvenile bull trout migrated upstream in their
natal stream to grow, and many of these upper stream reaches were not
utilized by adult spawners. Thurow (1987) also found higher densities
of juvenile bull trout in the headwater (colder) stream reaches of the
South Fork Salmon River, Idaho. Thurow and Schill (1996) did record
summer water temperatures of 9-13.5 deg.C in Profile Creek, tributary
to the South Fork Salmon River, while observing the diel behavior of
juvenile bull trout. Elle (1995) observed in Rapid River that the out
migration of juvenile bull trout occurred when the stream temperatures
dropped below 10 deg.C.
Based on the above, EPA has determined that its final criterion for
bull trout temperature is reasonable and reflects sound science.
ii. Distribution
a. Proposal. At the time of EPA's disapproval action, EPA had not
identified the exact geographic areas inhabited by bull trout. In
deriving a list of water bodies where revised temperature criteria are
needed in order to protect bull trout for the proposal, EPA relied upon
bull trout distribution data from the Interior Columbia Basin Ecosystem
Management Project (ICBEMP) as well as bull trout distribution data
from the Idaho Department of Fish and Game. See 62 FR 23013 for a more
detailed discussion of EPA's proposal.
b. Recent Idaho Actions. On June 19, 1997, Idaho adopted a
temperature criteria for bull trout but did not indicate which water
bodies the criteria apply. On July 15, 1997, EPA disapproved this new
criteria because EPA was unable to determine that the criteria was
protective of bull trout
[[Page 41173]]
spawning and rearing. In order to protect an aquatic life species, the
water quality criteria must have a point of application. Idaho's
temperature criteria specified only that the criteria would be applied
to known bull trout spawning and juvenile rearing stream segments as
identified by the Department based on best available data or as
specifically designated under the Idaho Water Quality Standards. The
implementation components of a criterion (e.g., point of application)
are considered along with the numeric values themselves to determine if
the criteria as a whole are sufficient to protect the use (40 CFR
131.11). To date, no stream segments have been specifically designated
as a bull trout spawning and juvenile rearing stream, nor has any
reference to a specific list of waters been provided to EPA. Therefore,
in order to ensure that bull trout spawning and rearing will be
protected, EPA has included a list of stream segments as part of the
bull trout criteria in today's rule (Sec. 131.33(a)(1)).
c. Response to Comments. Comment: Commenters objected to EPA's
approach to designating waterbodies where the temperature criteria for
bull trout spawning and rearing would apply. The strongest objectors
took the view that water quality standards should not be tied to
specific stream segments. Rather, the applicability of designated uses
should be left to another process, such as the Governor of Idaho's bull
trout plan. These commenters based their practical objection in part on
the fact that, under the proposal, a rulemaking would be required each
time the temperature criteria needs to be modified to reflect new
information. The more moderate objections pointed to the over
inclusiveness of the proposal, and asserted that EPA can not apply
temperature criteria to waterbodies where the presence of bull trout
has not been verified. These commenters pointed out that, by its own
terms, the list encompasses ``known, suspected and/or predicted''
spawning and rearing areas, and argued that EPA can not apply criteria
to waters beyond those that are ``known'' to host these activities.
Commenters objected to the fact that the rule included migratory
corridors merely because EPA could not determine how to exclude these.
Another commenter argued generally that inclusion of waterbodies other
than headwaters is inappropriate because waters at lower elevations
have higher natural temperatures to which bull trout have adapted.
Response: EPA disagrees with the commenters who argue that
waterbodies do not need to be specified for bull trout temperature
criteria. A water quality standard cannot be implemented unless it
applies to a specified location. Moreover, the mechanism for
determining where the criteria apply must have regulatory effect (e.g.,
cannot exist only in guidance), to be the basis for imposing
requirements through subsequent regulatory actions, such as issuance of
an NPDES permit. EPA has done that here by naming in the regulation the
specific waterbodies where the criteria apply, and providing a
streamlined mechanism for modifying the list.
As described above, EPA has substantially modified its approach to
designating waterbodies where bull trout temperature criteria will
apply from that found in the proposal. This has occurred, in part, as a
response to the comments received. The proposal acknowledged that its
approach to applying bull trout temperature criteria might be over
inclusive to some extent. EPA believes this modified approach
substantially reduces the likelihood that waters that do not contain
bull trout will be regulated by this rule. In addition, EPA has
modified the proposal by adding a streamlined procedure for removing
waterbodies where it can be shown that bull trout do not in fact exist.
This responds to those commenters who wish to avoid future rulemakings
in the event new information becomes available.
Regarding the comment that EPA may not designate waterbodies other
than those where bull trout have been confirmed as present, EPA
disagrees that this is the only reasonable way to designate applicable
waters. EPA agrees that it would be arbitrary and capricious to
designate waters merely on the basis of conjecture. However, the ICBEMP
data base relied upon by EPA in this rulemaking to predict the presence
of bull trout spawning and rearing is based on sound scientific
methodology that results in a high degree of predictive accuracy. The
ICBEMP data base focuses on a number of parameters known to correlate
to the presence of bull trout, and predicts the presence of bull trout
elsewhere only where those parameters are known to be present. EPA
combined the ICBEMP data base with that developed by the Idaho
Department of Fish and Game. The IDFG data base lists waters where bull
trout are known to be present, and also includes waters where bull
trout are suspected to be present based on the best professional
judgement of Department officials. EPA believes that since the Idaho
Fish and Game Department is the agency with the most expertise and the
most current information regarding the location of bull trout, it is
appropriate to defer to its judgement and to include waters where,
according to the Department, bull trout are either known or suspected
to be present.
If EPA were constrained to using a method of designating
waterbodies that relied only upon direct human observations of the
presence of bull trout spawning and rearing, the result would most
certainly be under inclusive, and therefore under protective of the
species. EPA believes the approach that is most reasonable and most
consistent with the goals of the CWA is to identify those waterbodies
where spawning and rearing have been observed to exist and then expand
upon this using accurate modeling techniques or the best professional
judgement of officials for an agency such as the Idaho Fish and Game
Department. When it can be shown this approach errs in the direction of
overprotection, the streamlined procedures for deleting waterbodies
from the list should provide an adequate corrective mechanism.
In the final rule, EPA believes it has succeeded in excluding
waterbodies that would be used only for migration and not for spawning
and rearing. Additionally, by excluding river main stems, EPA has
drastically reduced the number of low elevation waterbodies affected by
this rule. This is responsive to the comments suggesting that spawning
and rearing occur only in headwaters.
Comment: Several commenters requested that individual streams
either be removed from or added to the list of streams covered under
this rule. Very few of these commenters submitted factual data to
support their request, although several noted that they had data
available or referred to sources where the data may be available.
Response: Due to the short court-ordered time frame for development
of this rule, EPA was unable to pursue the acquisition of data not
provided directly to EPA during the comment period. However, EPA has
provided opportunity within the rule to modify the list of streams to
which the rule applies and encourages these commenters to pursue such
modification where they have the factual data to indicate presence/
absence of bull trout in specific waters. Additionally, several of the
streams which commenters requested be removed from the list were
removed during our review and modification of the proposed list. These
streams include the Boise River below Lucky Peak Reservoir and the
Snake River near Lewiston.
[[Page 41174]]
d. Final Rule. The final rule includes a list of waterbodies for
which site-specific temperature criterion are needed to protect bull
trout spawning and juvenile rearing. In deriving this list, EPA has
relied on bull trout distribution data from the 1994-5 Interior
Columbia Basin Ecosystems Management Project (ICBEMP) (Quigley and
Arbelbide, in press) ``Key Salmonid'' database for known and predicted
bull trout spawning and juvenile rearing, and the updated version
(April 1997) of the Idaho Department of Fish and Game (IDFG) Digital
Bull Trout Distribution database.
The merging of these two databases resulted in a list of streams
designated specifically for bull trout spawning and juvenile rearing,
as well as some streams utilized for all life stages, and other streams
used only as migratory corridors. In order to exclude those streams
used only for life stages other than spawning and juvenile rearing
(i.e., migratory corridors, adult rearing, etc.), the following steps
were taken to modify the list of streams:
(1) The entire IDFG data set, which addresses all life stages, was
overlaid with certain portions of the ICBEMP data set. The portions of
the ICBEMP database which were used included ``known'' bull trout
spawning and juvenile rearing, ``predicted'' spawning and juvenile
rearing, and ``predicted present'', i.e., migratory or seasonal
habitats that could include some spawning and juvenile rearing streams.
Known migratory corridors were not included.
(2) Based on statements made by IDFG staff, EPA concluded that the
IDFG data set on bull trout habitat contained recently updated
information that was not included in the ICBEMP data set. Therefore,
EPA determined that the majority of the IDFG data set, especially
tributaries, should be retained in the rule in order to utilize the
most recent information.
(3) Those areas denoted by ICBEMP as ``predicted present'' bull
trout habitat used by all life stages which do not overlap with areas
listed by IDFG for all life stages were assumed to have less of a
probability of being spawning and juvenile rearing streams. Therefore,
these waterbodies were deleted from the list of streams to which the
rule would apply.
(4) Based on the literature reviewed and comments received, EPA
assumed that bull trout do not use main stem river systems for spawning
and juvenile rearing habitat, because of elevated water temperatures
and the lack of appropriate spawning substrate. The main stem rivers
are utilized by bull trout principally as migratory corridors and adult
holding habitat. This is due to the naturally higher water temperatures
and greater food abundance. Bull trout are almost exclusively
piscivorous. Therefore, only the headwater portions of main stem rivers
were retained in the rule. All other segments of the main stem rivers
were deleted, regardless of whether they were denoted by either the
IDFG, ICBEMP, or both.
The list represents EPA's attempt to compile a comprehensive list
of streams in Idaho utilized for bull trout spawning and juvenile
rearing without including waters utilized only for adult migration and
rearing or streams in which bull trout are not likely to occur. The
resulting list for which site-specific temperature criteria are being
promulgated can be found in subsection (a)(2) of today's rule.
iii. Modifications to Bull Trout Criteria and Distribution
Although the promulgated list of waterbodies where bull trout
temperature criteria apply represents the best information now
available, EPA believes it is appropriate to have some measure of
flexibility to modify this list as new information on bull trout
distribution arises. This is important in light of ongoing monitoring
activities by the State of Idaho and several Federal agencies.
Therefore, EPA has modified the proposal by adding a procedure whereby
listed waterbodies can be removed or temperature criteria modified
through a determination of the Region 10 Regional Administrator (RA).
EPA believes this procedure can provide expeditious relief from the
requirements of these temperature criteria when such a change is
supported by an adequate factual record. Although the procedure for
making a determination under paragraph (a)(3) is not a rulemaking, each
determination would be a final agency action, and would therefore be
subject to consultation pursuant to section 7 of the ESA as
appropriate.
Section 131.33(a)(3) sets forth procedures for modifying, on a
site-specific basis, either the temperature criterion in paragraph
(a)(1) or the list of waterbodies in paragraph (a)(2). Paragraph
(a)(3)(i) allows the RA to remove a waterbody, or a portion of a
waterbody, from the list if a finding can be made that bull trout
spawning and rearing is not an existing use at a specified location.
Paragraph (a)(3)(ii) allows the RA to modify upwards the temperature
criterion of paragraph (a)(1) if a finding can be made that bull trout
would be fully supported at the higher temperature at a specific
waterbody or portion thereof. EPA wishes to emphasize that these
findings must be based on an adequate factual record. Since these
determinations essentially modify a site-specific criterion, the record
must be complete and compelling enough to support a site-specific
criterion in the first instance, and must also effectively rebut
whatever information was used to support today's promulgation for the
specific waterbody. It is also important to note that EPA expects any
requests for a modification under section (a)(3) to be accompanied by a
complete and adequate supporting record that is consistent with EPA's
existing policies and procedures for developing site-specific criteria.
This burden for a complete and adequate supporting record falls upon
the person requesting the modification. EPA does not intend to supply
information lacking from a request, and will not act on any request
that is missing critical information or otherwise deemed incomplete.
EPA expects that support for the removal of a waterbody pursuant to
paragraph (a)(3)(i) will normally consist of documentation that bull
trout are not currently present. While bull trout may constitute an
``existing use'' if it has been present since 1975, a requestor under
paragraph (a)(3)(i) will not normally carry the burden of demonstrating
that this is not the case. Unless there is information to the contrary,
EPA will assume that the current absence of bull trout also indicates a
historical absence. However, where there is information of a historical
presence that qualifies as an ``existing use,'' that information would
have to be rebutted.
The procedures of paragraph (a)(3) are designed to ensure that the
public will have adequate input on any determination. Paragraph
(a)(3)(iii) provides that the public will have notice of and an
opportunity to comment on any proposed determination. If this notice
can be combined with another concurrent and related process, such as
action on an NPDES permit, EPA will endeavor to do so. Paragraph
(a)(3)(iv) requires the RA to make publicly available any proposed
determination and the factual record supporting it, and to make
publicly available the record of past decisions.
EPA plans to develop a mailing list to facilitate public awareness
of final determinations to modify stream listing or temperature
criteria under these procedures. Persons wishing to be notified of such
determinations should send their names and addresses to Lisa Macchio at
U.S.EPA Region 10, Office of Water, 1200 Sixth Avenue, Seattle,
[[Page 41175]]
Washington, 98101 (telephone: 206-553-1834).
The procedures in paragraph (a)(3) provide a mechanism for removing
a waterbody from the list, or for modifying the temperature criterion
upwards. That is, paragraph (a)(3) can only be used to modify today's
rulemaking in a less stringent direction. EPA recognizes that new
information might also support, for instance, the addition of a
waterbody to the list. While it would have been desirable to provide a
similar streamlined mechanism for modifying the list in a more
stringent direction, EPA was concerned that a procedure that could
increase the scope of today's promulgation through a process less
rigorous than formal notice and comment rulemaking might not be
consistent with the Administrative Procedures Act. However, paragraph
(a)(3)(v) makes clear that EPA can promulgate additional site-specific
criteria for bull trout through rulemaking.
2. Sturgeon
i. Proposal
EPA proposed temperature criteria for the Kootenai River from
Bonners Ferry to Shorty's Island to protect for critical spawning and
egg incubation life stages for white sturgeon. EPA proposed a minimum
weekly average of 8 deg.C followed by an 8-week time period (which was
to begin no later than May 21) where the maximum weekly average does
not exceed the upper spawning temperature limit of 14 deg.C. Due to
the limited time available prior to the proposal, EPA was able to look
at only a small subset of the temperature data for the Kootenai River.
Based on this limited analysis, as well as preliminary discussions with
FWS and Army Corps of Engineers (COE), EPA had concluded that the 8
deg.C minimum could be attained by May 21 and that a 14 deg.C maximum
temperature was reasonable. See 62 FR 23010 for a more detailed
discussion of EPA's proposal.
ii. Recent Idaho Actions
Idaho adopted revised water quality standards which were issued as
a temporary rule by the Board of Health and Welfare and became
effective on June 20, 1997. This revised rule establishes a
14xC maximum seven day moving average water temperature
(based on daily average temperatures) within the Kootenai River from
Bonners Ferry to Shorty's Island from May 1 through July 1.
EPA reviewed the state's revised criteria, the scientific
literature, and additional temperature data for the Kootenai River
provided during the comment period. EPA again conferred with FWS in
evaluating temperature criteria which would provide adequate protection
of sturgeon spawning.
EPA received comments from COE which indicated water temperature at
Bonners Ferry is controlled by several factors other than outflows at
Libby Dam. These factors include tributary inflow volume and
temperature, water depth and local hydrometerological conditions.
Consequently, these factors and inputs may have a greater role in
controlling the onset of the timing of sturgeon spawning than EPA
originally believed. These factors along with the multi-agency efforts
for the recovery of Kootenai River white sturgeon, which includes
experimentation of flow releases at Libby Dam by the COE, may define
more precisely the optimal conditions needed for sturgeon spawning and
egg incubation. Although available information suggests that 14 deg.C
is a reasonable upper temperature limit, the current optimal conditions
for Kootenai River white sturgeon spawning and egg incubation, as well
as the temperature ranges and flow regimes which would provide for
these conditions, are not entirely certain.
The State's 1997 standard establishes a 14 deg.C maximum
temperature criteria for the two month spawning period. This time
period and upper temperature limit is consistent with the literature
EPA has reviewed. Partly because of the uncertainty in defining optimal
spawning conditions for Kootenai River white sturgeon, along with (1)
influences other than flow releases at Libby Dam and (2) COE and FWS
efforts in experimentation with operational guidelines at Libby Dam,
EPA determined that establishing a 14 deg.C maximum criteria from May 1
through July 1 without establishing a minimum temperature criteria,
would provide for the necessary temperature (thermal) protection for
spawning and egg incubation as well as temporal flexibility as over
times when such life stages can occur. EPA will continue to track this
issue as more information becomes available.
Therefore, by letter dated July 15, 1997, EPA conditionally
approved the State's temporary temperature criteria as being in
accordance with the CWA and EPA's implementing regulations at 40 CFR
131.11. EPA's approval eliminates the need for federal criteria to
protect sturgeon. Because EPA's approval is not yet unconditional, the
Agency is not withdrawing the proposal for these criteria at this time.
3. Snails
i. Proposal
EPA proposed a maximum daily average temperature of 18 deg.C in the
Middle Snake River from river mile 518 to river mile 709. Given the
limited time EPA had to develop the proposed rule and the limited data
available at the time, EPA's proposed temperature criteria appeared to
be reasonable. See 62 FR 23011 for a more detailed discussion of EPA's
proposal.
ii. Comments
Although no additional data on the temperature requirements for
these snails was obtained during the comment period, EPA did receive
several comments with regard to the proposed temperature criteria for
snails.
One commenter noted that the FWS recovery plan recommends an annual
average temperature of 18 deg.C, and that EPA was proposing a daily
average. This commenter questioned how EPA converted a suggested
18 deg.C annual average temperature to a maximum daily average. EPA
proposed this because it had determined that an annual average
temperature did not make sense for the protection of the species since
it would allow the low winter time temperatures to offset the high
summer temperatures. Without further information at the time of
proposal, EPA's sense of FWS's recommendation for temperature criteria
in the recovery plan, was they were targeting a temperature lower than
the current Idaho temperature criteria applicable to cold water biota.
Therefore a daily average of 18 deg.C was proposed. As discussed below,
EPA has since concluded that it could not be confirmed that Idaho's
existing temperature criteria are inadequate to provide the temperature
protection recommended in the recovery plan.
Another commenter questioned whether it was reasonable and
appropriate to establish an 18 deg.C temperature criteria throughout a
significant portion of the river (rivermile 518 to 709) because snails
are isolated in specific habitats within the river. Therefore the
criteria should only apply to those specific portions where snails are
known to exist, not all segments as EPA proposed. Based on the
information available, EPA is unable to determine the precise locations
of all snail habitat. In addition, EPA has determined that available
data do not confirm that Idaho's existing temperature criteria are
inadequate to protect snails.
Another commenter stated snail populations are more abundant than
[[Page 41176]]
first assumed in 1992 and good populations of certain listed snails
were found in river and reservoir habitats where the proposed standard
is exceeded during the summer. However, data was not provided to show
the correlation between presence, health of species and temperature
requirements. Presence of snails does not necessarily indicate
temperature threshold for optimal conditions of the species. Upon the
availability of relevant information on snail requirements, EPA will
further evaluate appropriate numeric criteria.
Several commenters stated that they believed the proposed 18 deg.C
standard is essential to the survival of the Snake River mollusks but
provided no additional data to justify this. EPA does not have the
information to determine whether or not this may be true.
One commenter believed that until further data are available, the
standard for the snails should be lowered to 14 deg.C to accommodate
the Banbury Springs lanx. EPA lacks the appropriate data to support
lowering the temperature criteria to 14 deg.C.
iii. Final Rule
After a more thorough evaluation of available data and information
on the temperature requirements of these snails, EPA has been unable to
confirm that Idaho's existing temperature criteria are inadequate to
protect the snails. Therefore EPA is withdrawing its disapproval of
Idaho's criteria and is not promulgating final temperature criteria for
aquatic snails in the Middle Snake River. EPA will continue to work
with FWS on this issue as more information becomes available and will
revisit this issue in future triennial reviews.
F. Antidegradation Policy
EPA's June 25, 1996 letter disapproved part of Idaho's
antidegradation policy because it did not protect Tier III waters
(Outstanding Resource Waters) from point sources. The State revised its
antidegradation policy to refer to point sources as well as nonpoint
sources, and submitted this revision to EPA. The commenters generally
expressed the view that under the circumstances a federal promulgation
was unnecessary. EPA approved this revision on May 27, 1997 as
satisfying our objection and meeting the requirements of the Clean
Water Act. Because section 303(c)(4) of the CWA does not require EPA to
promulgate a standard in these circumstances, today's final rule does
not include an antidegradation policy.
G. Mixing Zone Policy
1. Proposal
On April 28, 1997, EPA proposed to amend Idaho's mixing zone policy
for point source discharges. EPA had determined that Idaho's exemption
of certain narrative criteria from applying to water quality within a
mixing zone was inconsistent with the CWA and EPA's implementing
regulations at 40 CFR part 131 (see 62 FR 23014). EPA's proposed
amendment to Idaho's mixing zone policy would apply Idaho's existing
narrative surface water quality criteria at 16.01.02.200. to water
quality within a mixing zone.
2. Recent Idaho Actions
On June 19, 1997, Idaho revised its mixing zone policy to delete
the exemption from narrative surface water criteria at 16.01.02.200.
EPA approved Idaho's revised mixing zone policy on July 15, 1997,
because it addressed EPA's objection and meets the requirements of the
CWA and EPA's implementing regulations at 40 CFR Part 131. Therefore, a
federal promulgation for water quality within a mixing zone is no
longer necessary.
H. Excluded Waters Provision
1. Proposal
IDAPA 16.01.02.101.03. of Idaho's standards excludes from water
quality standards those unclassified waters which are ``outside public
lands but located wholly and entirely upon a person's land.'' EPA
disapproved this section and proposed a modification to ensure that any
waters of the United States which fell within this exclusion would be
covered by the standards applicable to unclassified waters. EPA
explained that this modification was necessary because all waters of
the United States must be protected by water quality standards. It is
possible that some waters ``located wholly and entirely upon a person's
land'' could be waters of the United States. In such instances, those
waters would be protected by the CWA.
2. Comments
Comment: A number of commenters objected to the scope of EPA's
definition of waters of the United States or asked for clarification of
the definition. Some suggested that the statutory phrase ``navigable
waters'' be used instead.
Response: The CWA uses the term ``navigable waters'' but defines
that term in section 502 to mean ``the waters of the United States,
including the territorial seas.'' Because the phrase ``navigable
waters,'' taken out of context, can be confusing and erroneously imply
that navigability is the key to CWA jurisdiction, EPA chose to use the
term ``waters of the United States'' for this rulemaking.
EPA's regulations define waters of the United States to include
isolated waters:
The use, degradation or destructive of could affect interstate or
foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign
travelers for recreational or other purposes: or
(ii) From which fish or shellfish are or could be taken and sold
in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by
industries in interstate commerce * * *
The definition also provides that waste treatment systems are
generally not waters of the United States.
Because of questions about isolated waters, EPA published in the
preamble to its section 404 state program regulations a fuller
explanation of this part of the definition {53 FR 20765 (June 6,
1988)}. The discussion provides some additional examples of the ways in
which the interstate commerce requirement could be satisfied, i.e., if
waters are or would be used as habitat by certain migratory birds, are
or would be used as habitat by endangered species, or are used to
irrigate crops sold in interstate commerce. (With respect to the
latter, as explained below, if such irrigation waters are man-made
waterways, they are outside the scope of today's rulemaking, even if
waters of the United States, because they are not addressed by the
state's excluded waters provision but rather protected under a
different state provision.)
EPA's definition of waters of the United States has been in place
in substantially its current form for approximately 20 years, and has
been upheld and applied by numerous courts. Accordingly, EPA does not
understand the commenters to be asking EPA to revise that definition
but rather to be seeking a better understanding of the overlap between
waters of the United States and the waters which are excluded under
Idaho's provision, that is, a better understanding of the waters
actually affected by EPA's proposed rule.
An important starting place is the scope of the state's ``private
waters'' exclusion. First, that section does not apply to man-made
waterways, which are instead addressed by Idaho 16.01.02.101.02, which
protects man-made waterways for the uses for which they are developed
unless specifically designated in Idaho Sections 110. through 160. for
other or additional uses. Hence, man-made waterways are
[[Page 41177]]
not affected by EPA's proposal, whether or not they are waters of
United States, because they were not part of the private waters
exclusion from standards. Second, the Idaho exclusion only applies to
waters ``located wholly and entirely upon a person's land.'' In other
words, ponds which extend across property lines, or streams which flow
across property lines were never excluded from standards under the
state provision, and thus are not affected by EPA's proposal.
In short, the waters which might be affected by EPA's proposal are
the very limited subset of waters in Idaho which (1) are not man-made
waterways, (2) are confined entirely to a particular person's land and
(3) satisfy the commerce test for isolated waters under the definition
of waters of the United States.
Comment: The federal government has no right, or need, to regulate
the quality of waters on private land. Regulating downstream waters is
sufficient.
Response: Under the commerce clause of the United States
Constitution, Congress may regulate activities on private property in
order to protect interstate and foreign commerce. The Clean Water Act
represents an exercise of that authority.
One of the fundamental principles of the CWA is that water moves in
hydrological cycles and that it is necessary to control pollution at
the source to fully protect the nation's waters. To exclude all waters
on private property from protection and instead to attempt to deal with
polluted water after it crosses the property line to public land would
be ineffective and contrary to the CWA's principles.
On the other hand, where a waterbody on private land is isolated
and has no effect on other waterbodies and does not itself have an
interstate commerce nexus, we agree that there is no need to regulate
it, and indeed such waters are not encompassed by the definition of
waters of the United States nor regulated under today's rule.
Comment: The cold water biota use which EPA proposed for
unclassified waters is an inappropriate use for most private waters.
Response: Idaho has since revised its ``unclassified waters''
provision (now denominated ``undesignated waters'') and the revision
has been approved by EPA. Therefore, today's final rule does not
contain a federal unclassified waters provision. The revised Idaho
provision presumes that most waters in the state support cold water
biota and primary and secondary recreation beneficial uses. However,
the revised provision also provides that during the review of any new
or existing activity on an undesignated water, the department may
examine all relevant data on beneficial uses and, where the department
determines after public notice that uses other than cold water biota
and primary or secondary recreation are appropriate, may use the new
information in making compliance determinations. Thus, to the extent
that any ``private'' waters are waters of the United States, and a
regulated person has information indicating that cold water biota is
not an appropriate use, he may present information to the state and ask
for a determination that another use is more appropriate.
3. Final Rule
The state did not revise this provision to address EPA's concerns
and, as discussed above, none of the comments provided a basis for
withdrawing EPA's objection or modifying the proposal. Accordingly, EPA
is promulgating this provision as proposed to ensure that all waters of
the United States are protected by water quality standards.
I. Federal Variances
1. Proposal
The proposed rule authorized the Regional Administrator to grant
federal WQS variances when subsequent data showed that the uses that
had been promulgated by EPA were unattainable in the near term for a
particular pollutant. The proposal explained that EPA has approved
states' granting variances from state water quality standards in such
circumstances (i.e., where removing a designated use entirely could
have alternatively been allowed). EPA expressed the view that it was
appropriate to provide a comparable federal process because EPA's use
designations relied (at least in part) on a rebuttable presumption that
fishable/swimmable uses were attainable. The proposed procedures linked
the variance application process to the NPDES permit process for
efficiency, and set out the criteria for granting or denying federal
variances. See 62 FR 23015 for a more detailed discussion of EPA's
proposed variance procedure.
2. Comments
Comment: Variances should be used infrequently and cautiously to
avoid undercutting water quality standards.
Response: EPA agrees. Under the proposed and final language,
variances may be granted only when there is data demonstrating to the
Regional Administrator's satisfaction that the requirements of 40 CFR
131.10(g) are met and that granting the variance will not jeopardize
the continued existence of listed species or destroy or adversely
modify their critical habitat, in accordance with the Endangered
Species Act. In addition, any proposed decision to issue a variance
will be subject to public notice and comment. Moreover, the final rule
includes use designations for only five segments, and the variance
provision only applies to those use designations. These requirements
and circumstances should limit the use of variances to appropriate
situations.
Comment: To avoid adverse effects on listed species, variances
should consider the needs of listed species and should include
mitigation plans.
Response: Because the granting of a variance under the procedure in
question is a federal action, EPA will consult with the FWS and/or NMFS
pursuant to section 7 of the ESA where a proposed variance may affect a
listed species. Mitigation measures developed as part of such
consultation may be included in the final variances as needed.
Comment: The proposal is too narrow because it makes variances
available only to NPDES applicants. Nonpoint sources may also need
variances; variances may be needed in the TMDL process.
Response: When first approved of by EPA, variances were conceived
of as a mechanism which allowed CWA permits to be written to assure
compliance with water quality standards, as required by section
301(b)(1)(C), while providing temporary relief when the uses under the
existing standards were not presently attainable. EPA tied the proposal
to the NPDES permit process, because that is the only EPA regulatory
program which requires compliance with the applicable water quality
standards, and therefore the main context in which the need for a such
a variance would arise.
The comments concerned with the application of variances to non-
point sources seem to be based on an assumption that, without a
variance, nonpoint sources unable to meet a federal standard (or TMDL)
would be vulnerable to suit or similar enforcement action. However, the
CWA does not make water quality standards (or TMDLs) directly
enforceable; that is, EPA's enforcement authority under section 309 of
the Act and citizen suits under section 505 cannot be used to enjoin or
seek penalties from someone simply because they are violating a water
quality standard. Rather, enforcement actions are directed against
[[Page 41178]]
persons discharging without a permit or failing to comply with a permit
or an administrative order.
As mentioned above, the final rule establishes use designations for
only five water body segments. None of the comments singled out these
segments as ones where a variance would likely be needed for non-NPDES
activities. Persons who nonetheless see the need for a variance in non-
NPDES contexts, for example, an applicant for a CWA section 404 permit
to discharge dredged and fill material who has data indicating that a
designated use is unattainable, may of course petition EPA to revise a
water quality standard, either by removing a use entirely or by
granting a variance.
Comment: Under the proposal, variances may be granted only for
standards in paragraphs (a) and (b), that is, beneficial uses for
unclassified waters and 53 specific water bodies. Variances should also
be available for streams subject to the bull trout temperature
criteria.
Response: The bull trout criteria only apply to streams where the
best available information shows that bull trout actually spawn,
incubate, or rear, in other words, streams where bull trout are an
existing use. Variances may not be used to modify such existing uses.
However, as discussed in section E. of this preamble, if EPA determines
that bull trout are in fact not present in a segment of a listed bull
trout stream, the bull trout criteria will not be applied to that
segment. In addition, if bull trout are present in a given location,
but the data indicates that less stringent temperature criteria would
fully protect the bull trout there, paragraph (a)(3) of the final rule
provides procedures for a site-specific temperature modification. These
procedures are a more appropriate means to provide the relief sought by
the commenters.
Comment: A discharger should be allowed to apply for a variance at
any time, not just when submitting an NPDES application. The
circumstances justifying the variance may not arise, or be apparent,
until after the initial NPDES application.
Response: EPA agrees that greater flexibility is appropriate, and
is adding language to the rule to allow later applications for
variances if the need or factual basis for the variance was not
available when the NPDES application was filed. This exception should
be used only when necessary. EPA will be in the best position to
process the variance and NPDES permit applications expeditiously if
they are filed concurrently.
One of the commenter's examples involved the situation where EPA
reopens a permit to change permit conditions. This is unlikely to
create the need for a variance. Under 40 CFR 122.62, a permit may be
reopened to reflect new or revised water quality standards only at the
permittee's request, unless there is a specific reopener clause in the
permit providing otherwise.
Comment: One commenter asked that the expiration date of a variance
be able to extend past the 5 years in the proposal when the permit
reflecting it remains in effect.
Response: It is not necessary to extend the term of the variance
itself in these circumstances. NPDES permits are issued for terms not
to exceed 5 years. However, under the Administrative Procedures Act and
40 CFR 122.7, where a permittee files a timely application for permit
renewal, and EPA does not complete its decision by the expiration of
the original permit, the original permit continues in effect until a
decision is reached. Unless the original permit had contained a
schedule of compliance requiring compliance with the underlying
standard at some specified time, the original permit would continue to
reflect the variance until superseded by the new permit. Whether the
new permit would reflect the variance would depend on whether a request
for a variance renewal had been granted.
3. Final Rule
For the reasons above, the final variance procedure is essentially
the same as the proposal, but modified to allow applications for
variances to be filed after NPDES permit applications are filed in
certain circumstances. EPA is making this procedural modification
because there are circumstances where the need or the factual basis for
a variance may not be apparent at the time the NPDES permit application
is filed. For example, the final permit may be sufficiently more
stringent than the draft permit that the applicant can demonstrate that
complying with the final limit would cause substantial and widespread
social and economic impact. In addition, a discharger to a stream
affected by today's promulgation may have already filed an NPDES
renewal application. A discharger with an existing permit will not be
subject to permit conditions reflecting today's standards until its
permit is renewed (unless the discharger requests that its existing
permit be reopened for this purpose); such a discharger will be able to
submit any variance request with its application for permit renewal.
J. Executive Order 12866
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.
It has been determined that this is not a ``significant regulatory
action'' under the terms of Executive Order (E.O.) 12866, and is
therefore not subject to OMB review. As explained more fully below in
section L (Regulatory Flexibility Act), EPA's final rule does not
itself establish any requirements directly applicable to regulated
entities. In addition, there is significant flexibility and discretion
in how the final rule will be implemented within the National Pollutant
Discharge Elimination System (NPDES) permit program. While
implementation of today's rule may ultimately result in some new or
revised permit conditions for some dischargers, EPA's action today does
not impose any of these as yet unknown requirements on dischargers.
Nonetheless, consistent with the intent of E.O. 12866, EPA has
estimated (within the limits of these uncertainties) the possible
indirect costs which might ultimately result from this rulemaking. The
following is a summary of the regulatory impact analysis (RIA) prepared
for this final rule. Further discussion is included in the full RIA,
which is included in the docket for this rulemaking.
Under the CWA, costs cannot be a basis for adopting water quality
criteria that will not be protective of designated uses. If a range of
scientifically defensible criteria that are protective can be
identified, however, costs may be considered in selecting a particular
criterion within that range. As long as
[[Page 41179]]
existing uses are protected, costs may be considered in designating
beneficial uses if the incremental controls would cause substantial and
widespread social and economic impact on the community such that the
uses are not attainable. EPA's regulations also include other factors
that may be considered in designating uses (see 40 CFR 131.10(g)).
The designated uses and water quality criteria of today's final
rule are not enforceable requirements until separate steps are taken to
implement them. Therefore, this final rule does not have an immediate
effect on dischargers or the community. Until actions are taken to
implement these designated uses and criteria, there will be no economic
effect on any dischargers or the community.
In the short time prior to proposal EPA attempted to assess, to the
best of its ability, compliance costs for facilities that could
eventually be indirectly affected by the designated uses and water
quality criteria in the proposed rule. However, EPA was unable to find
all of the information necessary to accurately estimate these potential
costs. Although the costs were not expected to be significant, EPA
developed a methodology to estimate the potential indirect cost impacts
on facilities discharging pollutants to waters subject to the numeric
water quality criteria and uses established by the proposal.
Following proposal, EPA continued to gather additional data and
information on the facilities and waters needed to evaluate use
attainability and the costs attributable to the rule. In addition, as
discussed in sections C, D, and E, the State of Idaho undertook several
actions that significantly reduced the number of waters covered by this
rulemaking and, subsequently, the scope of the RIA for today's final
rule. EPA also solicited public comment and supporting data on the
facilities and waters it intended to evaluate as part of the RIA, and
on the methodology it planned to use to estimate costs associated with
implementation of the rule. EPA has reviewed the State actions and the
comments and data provided by the public as well as the information and
data it gathered during the public comment period, and has estimated
the potential costs to facilities as an indirect result of attaining
numeric water quality criteria and uses in the final rule. EPA has
included this information in the record for today's final rulemaking.
1. Use Attainability
As described for the proposal, in order to properly assess the
impact of EPA's new use designations in Idaho, EPA performed a
preliminary evaluation to determine if fishable/swimmable uses were
attainable for all assessed water body stream segments affected by the
proposal. For this analysis, EPA extracted chemical-specific data from
the EPA Storage and Retrieval Water Quality File (STORET) data base. If
EPA found that significant exceedances of water quality criteria (in
terms of relative magnitude above the applicable criteria, duration of
exceedance above the criteria, and the number and types of pollutants)
has occurred, then an upgrade of designated uses may not be
appropriate. Based on this preliminary analysis, EPA found periodic
exceedances of water quality criteria for several water body stream
segments for several specific parameters. However, due to the age of
most of the data, and the fact that data for all applicable parameters
were not available, EPA could not definitively conclude that a
downgrade for any water body stream segment affected by the proposed
rule was justified by stream condition. Therefore for purposes of
estimating the cost of the proposed rule, EPA conservatively assumed
that the new use designation would apply to all affected water bodies.
This assumption was considered conservative because if the use of a
particular water body could not be attained, then less stringent
criteria would apply to the water body and all discharges to the water
body (and most likely lower potential costs).
For the proposal, EPA acknowledged that an appropriate evaluation
of use attainability should consider physical, biological, and chemical
indicators to properly evaluate whether a use can be attained. EPA also
requested data and information that would support use attainability
analyses for the final rule. EPA received limited data as part of the
public comments that could be used to support use attainability
analyses for the final rule.
As described in section D, this final rule designates cold water
biota protection for five water body segments. Data and information was
submitted as part of the public comments for only one of the five water
body segments (South Fork Coeur d'Alene). In particular, chemical-
specific information was submitted for primarily metal parameters. The
information showed that exceedances of applicable EPA aquatic life
water quality criteria occur for several metal parameters, and that
ambient metal levels in mining areas may be due in part to natural
metal levels that occur in mineralized areas (e.g., from natural seeps,
etc.). However, EPA believes that elevated levels of metals may also be
a result of historical contamination from past mining operations.
Notwithstanding, as discussed in section D, these exceedances alone, do
not prevent the stream from supporting cold water biota. In addition,
none of the commenters specifically contended that a cold water biota
use was unattainable on any of the five streams at issue on account of
compliance costs. To the extent that the commenters did raise cost
concerns, as shown below, EPA's cost methodology indicates that the
costs (which are not direct costs in any event) would be significantly
less than predicted by many of the commenters.
EPA has considered this data in its evaluation of the potential
impact of this rulemaking to dischargers. As described in section K.2
below, EPA estimated a range of costs to account for the flexibility
and discretion related to implementing water quality standards within
the NPDES permit program. Particularly under the low-end, EPA assumed
that dischargers would take advantage of the alternative regulatory
approaches available, as opposed to installing costly controls to meet
permit limits. It is under this low-end scenario that EPA acknowledged
that background data exceeded water quality criteria, and assumed that
dischargers would only incur costs related to pursuing an alternative
regulatory approach (e.g., site-specific criteria). However, if these
alternative regulatory approaches were not pursued or were not
successful (e.g., data to produce site-specific criteria did not result
in less stringent criteria), EPA estimated the costs under a high-end
scenario. As such, the high-end scenario is considered a worst-case
scenario because all facilities with effluent quality expected to
exceed their permit limits would require installation and operation of
additional control measures with no possible opportunity to reduce
costs using alternative regulatory approaches allowed for under the
national water quality standards and NPDES permit programs.
2. Overview of Methodology to Estimate Potential Costs Related to New
Use Designations
In general, the approach to deriving costs for the final rule is
the same as the approach described for the proposal. However, due to
the reduced scope of the final rule, as compared to the proposal, all
NPDES permitted dischargers to the five water body segments were
evaluated for potential costs.
As described in the proposal, the new use designations being
proposed by EPA, by themselves, will have no impact or effect. However,
when the water quality criteria to protect these
[[Page 41180]]
uses are applied to dischargers through the NPDES permit program, then
costs may be incurred by regulated entities (i.e., point source
dischargers) but these costs can vary significantly because of the wide
range of control strategies available to dischargers. Since EPA, as the
NPDES permitting authority, also has significant flexibility and
discretion in how it chooses to implement water quality criteria,
analysis of potential costs would be difficult to perform for all
potentially affected entities, especially within the time-frame to
promulgate this rule. As a result, EPA estimated the potential costs
attributable to the final rule by developing a range of detailed cost
estimates for all NPDES permitted point source dischargers that
discharge to the five water body segments.
The actual impact of the final rule will depend upon how the NPDES
permit is developed and on which control strategy the discharger
selects in order to bring the facility into compliance. In writing
NPDES permits EPA determines the need for water quality-based effluent
limits (WQBELs) and, if WQBELs are required, derive WQBELs from
applicable water quality criteria. The implementation procedures used
to derive WQBELs for this analysis were based on the methods
recommended in the EPA Technical Support Document for Water Quality-
based Toxics Control (or TSD) (EPA/505/2-90-001; March 1991).
Specifically, a projected effluent quality (PEQ) was calculated. A PEQ
is considered an effluent value statistically adjusted for uncertainty
to estimate a maximum value that may occur. The PEQ for each selected
pollutant was compared to the projected WQBEL. If the PEQ exceeded the
projected WQBEL, a reasonable potential existed to exceed the WQBEL.
Pollutants with a reasonable potential to exceed then were analyzed to
determine potential costs to achieve the projected WQBEL.
Prior to estimating compliance costs, an engineering analysis of
how each sample facility could comply with the projected WQBEL was
performed. The costs were then estimated based on the decisions and
assumptions made in the analysis. To ensure consistency and
reasonableness in estimating the general types of controls that would
be necessary for a facility to comply with the final rule (assuming
that implementation of the rule resulted in more stringent
requirements), as well as to integrate into the cost analysis the other
alternatives available to regulated facilities, a costing decision
matrix, described in more detail in the proposed rule, was used for
each sample facility. Specific rules were established in the matrix to
provide the reviewing engineers with guidance in consistently selecting
control options.
Since dischargers can request a variety of regulatory alternative
approaches available within the national water quality standards and
NPDES permit programs (e.g., site-specific criteria, variances,
compliance schedules, etc.), EPA also developed a low-end cost estimate
assuming that these regulatory alternatives would be used to reduce
costs under certain conditions. In particular, when the estimated costs
to comply with WQBELs, based on new use designations, exceeded a cost-
effectiveness trigger, then it was assumed that the discharger would
pursue a regulatory alternative option. The triggering methodology used
for this analysis was modeled after other regulatory impact analyses
prepared by EPA for other water quality standards rulemakings.
Finally, for the five stream segments with specific use
designation, once a cost range was established for the facilities EPA
conducted a preliminary analysis of whether or not these uses are
attainable. To make this determination EPA evaluated limited biological
and chemical information on the five stream segments, the magnitude of
the implementation costs on the individual facilities and the economic
strength of the facilities that may incur costs as a result of today's
rule.
3. Results for Stream Segments With Specific Use Designation
EPA identified 12 facilities that possess NPDES permits to
discharge to the five water body segments affected by the final rule.
To estimate costs for each facility, EPA obtained data from NPDES
permit files (permit application, permit, fact sheet or statement of
basis), downloaded effluent monitoring data from EPA's Permit
Compliance System (PCS), and extracted ambient background data from
EPA's STORET system.
For each facility, EPA performed an evaluation of reasonable
potential to exceed water quality-based effluent limits (WQBELs) based
on applicable water quality criteria to protect new use designations
(i.e., cold water biota protection). EPA considered any pollutant for
which water quality criteria existed and for which data were available.
EPA assumed that reasonable potential existed if a permit limit for the
pollutant of concern was included in the existing permit for the sample
facility. In the absence of a permit limit, but where monitoring data
were available, EPA evaluated reasonable potential based on the
monitoring data and the procedures contained in the TSD (EPA 505/2-90-
001; March 1991).
To calculate WQBELs, EPA used the TSD procedures to derive maximum
daily and monthly average limits. Background concentrations were based
on the average of data contained in STORET for upstream monitoring
stations (including nearby tributaries); in the absence of background
data, EPA assumed zero. Critical low flows were calculated from data
contained in the United States Geological Survey (USGS) Daily Flow file
data base for nearby gage stations; the 1-day, 10-year low flow (1Q10)
was used for acute aquatic life protection and the 7-day, 10-year low
flow (7Q10) was used for chronic aquatic life protection. In the
absence of stream flow data, EPA conservatively assumed zero low flow.
Once WQBELs were derived, EPA derived cost estimates that represent
the cost to remove the incremental amount of pollutant(s) to levels
needed to comply with WQBELs (based on the existing effluent limit or
reported effluent quality in the absence of a limit). This assessment
was based on an evaluation of the performance of existing treatment
system units, as well as consideration of other possible control
options (e.g., waste minimization, additional new treatment units).
Based on evaluation of the facilities that may be impacted, EPA
estimates that the total potential cost resulting from new designation
for the five water body segments will range from $1.2 million to $10.5
million. Under the low-end, the costs for individual facilities ranged
from $0 (i.e., no projected impact) to just over $640,000. Under the
low-end, 3 facilities were assumed to pursue alternative regulatory
approaches. Under the high-end, the costs for individual facilities
ranged from $0 (i.e., no projected impact) to $5,700,000. Under the
high-end, no facilities were assumed to pursue alternative regulatory
approaches.
The total baseline pollutant load for the 12 facilities is just
over 71,000 toxic pound-equivalents per year (pollutant toxic weights
were derived using the EPA criterion for copper, 5.6 micrograms per
liter, as the standardization factor). The pollutant load reduction
under the low-end scenario is 21 percent or 14,800 toxic pound-
equivalents per year. Cadmium, lead, and mercury account for 87 percent
of the total pollutant load reduction under the low-end. Under the
high-end scenario, the pollutant load reduction is 98 percent or 70,200
toxic
[[Page 41181]]
pound-equivalents per year. Lead, mercury, and silver account for over
80 percent of the total pollutant load reduction under this scenario.
Under the low-end scenario, capital and operation and maintenance
(O&M) costs accounted for over 66 percent of the annual costs; costs
for pursuing regulatory alternatives accounted for just under 34
percent of the total annual costs. Consistent with the intent of the
high-end scenario, capital and O&M costs account for 100 percent of the
total annual costs. Under the low- and high-end scenarios, cadmium,
lead, and zinc accounted for approximately 74 and 69 percent of the
total annual costs, respectively.
While EPA was only able to gather limited economic information on
the affected facilities in the time allowed by the Court for this
rulemaking, this information and EPA's regulatory impact analysis did
not support a finding that the uses in today's rule are not attainable.
EPA's analysis indicated that under the high-end scenario one facility
could potentially incur relatively higher costs when compared to the
other 11 facilities subject to today's rule. However, EPA could not
conclude based on the information in the record that those costs would
result in widespread social and economic impact because the facility is
an abandoned mining operation designated as a Superfund site with
ongoing remediation. Should such information become available for any
of the facilities, the Agency could consider this information under the
variance provision in today's rule.
4. Overview of Approach to Estimate Potential Costs Related to New
Temperature Criteria
EPA received many comments related to EPA's proposed temperature
criteria to protect certain threatened and endangered species (Kootenai
River white sturgeon, freshwater aquatic snails, and bull trout). As
described in section E, as a result of these comments and associated
State actions, this final rule includes new temperature criteria only
for the protection of bull trout in a limited number of water body
segments (see Sec. 131.33(a) of the final rule).
Although the number of water body segments that are affected by
EPA's new temperature criteria in the final rule has been reduced from
the proposal, certain facilities may still be impacted by the final
rule. Therefore, EPA assessed the potential costs to comply with the
new temperature criteria for bull trout.
EPA's approach to estimate costs included three steps. First,
ambient temperature data was collected for each water body segment
impacted by the new temperature criteria and compared to the criteria
contained in Sec. 131.33(a). Due to the fact that many of the water
body segments are small tributaries in the headwater areas of the water
body, limited ambient data existed. In the absence of ambient data for
a particular water body, then temperature data for other water bodies
within the hydrologic basin were used as a surrogate.
For any water body that had background ambient temperatures below
the new temperature criteria, EPA identified NPDES permitted
dischargers on those segments and evaluated the reasonable potential
for the discharge to cause an exceedance in the downstream temperature.
If a reasonable potential to exceed was determined, then costs were
estimated to install controls that would reduce discharge temperatures.
Although EPA is projecting the potential costs to point sources,
EPA also received several comments related to the potential large
economic impact that could occur as a result of the new temperature
criteria, particularly for the agricultural and forestry segments of
the Idaho economy. As described earlier, the scope of the new
temperature criteria has resulted in a limited number of water body
segments for which revised temperature criteria are required. However,
EPA has only estimated costs to point source facilities that are
subject to numeric WQBELs included in NPDES permits. The point sources
included in this study only include those that discharge to waters
within the State designated for protection of bull trout. Under the
CWA, EPA has direct authority regarding permits issued under the NPDES.
EPA did not calculate costs for any program for which it does not have
enforceable authority, such as agricultural and forestry-related
nonpoint sources.
Further, agricultural and forestry-related nonpoint source
discharges are technically difficult to model and evaluate for costing
purposes because they are intermittent, highly variable, and occur
under different hydrologic or climatic conditions than continuous
discharges from industrial and municipal facilities, which are
evaluated under critical low flow or drought conditions. Thus, the
evaluation of agricultural and forestry-related nonpoint source
discharges and their effects on the environment are highly site-
specific and data intensive.
EPA predicted how the final temperature criteria for bull trout
protection may be implemented by the State through numeric effluent
limits for NPDES facilities and attempted to predict the actions these
facilities may need to take in order to comply with effluent limits
based on the new criteria. EPA envisions that some of these costs may
involve efforts to defer new effluent limits until studies are
undertaken to allocate temperature reductions throughout a watershed
and, where appropriate, EPA has included the costs of these studies in
the analysis. Although EPA has focused on calculating costs to
individual NPDES permitted facilities, EPA believes that a
comprehensive watershed approach that addresses all significant sources
of high temperature discharges will often present more cost-effective
approaches. EPA and the State may ask or require these sources to
implement best management practices or participate in a comprehensive
watershed management planning approach.
5. Results for Stream Segments With New Temperature Criteria
There are 1877 water body segments for which EPA has established
new temperature criteria for the protection of bull trout. Based on
data contained in PCS, EPA estimates that there are 37 NPDES permitted
facilities located on these 1877 water body segments. Of the 37 NPDES
dischargers, eight facilities are classified as a major discharger, and
29 are classified as minor dischargers. The largest categories of
dischargers that make up the 37 dischargers are mine sites (15 total; 6
majors and 9 minors), municipal wastewater treatment plants (9 total; 1
major and 8 minors), and fish hatcheries (6 total; 1 major and 5
minors).
Of the 37 NPDES facilities, three facilities (1 major mine, 1 major
municipal wastewater treatment plant, and 1 minor municipal wastewater
treatment plant) contained permit limits for temperature discharges.
Evaluation of these three facilities was conducted using water quality
data from STORET, three USGS data sets not contained in STORET, and PCS
monitoring data. The USGS data sets included the National Water Quality
Assessment (NAWQA), the National Water Quality Networks (NQN), and a
specific data request made to the Idaho USGS for continuously monitored
temperature. The Hydrological Unit Code (HUC) for each of the three
sample facilities (determined from PCS) was used to gather data from
STORET and the USGS data sets. Flow and temperature data were not found
for any monitoring stations in STORET for the three HUCs. The three
USGS data sets contained no monitoring stations in the HUC that
corresponded to each of the facilities.
[[Page 41182]]
Because of the lack of ambient temperature and flow data for streams,
data for flow was complied using USGS gauging stations.
As discussed in proposal for this rule, an accurate evaluation of
the need for and cost for temperature controls requires extensive data
for both ambient conditions (air and water) and the effluent discharge.
Since the specific data was not readily available for the final rule
analysis for any of the sample facilities, the following discussion
describes the potential range of costs that could result from
implementation of the final temperature criteria for protection of bull
trout.
If it is assumed that each of 37 facilities were to pursue
alternative regulatory approaches to comply with the temperature
criteria, the total annual costs are estimated to be just over $1
million. Alternative regulatory relief would be considered feasible for
a facility should ambient receiving water conditions indicate that
criteria can not be achieved (e.g., habitat unsuitable for bull trout,
natural background temperatures higher than criteria, etc.). In fact,
EPA evaluated the limited background ambient temperature data that were
available and found that some waters (based on limited, historical
data) may naturally exceed the temperature to protect bull trout. Under
these circumstances, a facility could pursue alternatives such as the
derivation of a site-specific criterion. The cost for a facility to
pursue regulatory alternatives was based on those used in the
Regulatory Impact Analysis prepared for the final Great Lakes Water
Quality Guidance.
Alternatively, if it is assumed that each of the 37 facilities were
to conservatively incur costs to install and operate temperature
control equipment, the total annual costs are estimated to be just
under $9 million per year. This high-end cost estimate is based upon
the installation and operation of cooling towers at each facility. This
assumption is considered a worst-case scenario for several reasons.
First, not all types of facilities produce wastewater with elevated
temperatures that would require reduction (e.g., fish hatcheries,
mining sites that do not include milling operations that require
cooling waters, and minor municipal dischargers). Second, since many of
the facilities that discharge to bull trout protection streams are
classified as minor dischargers, they are not expected to discharge
wastewater at a volume or at a temperature that would effect the
receiving water quality. Finally, the incremental decrease in
temperatures would be expected to relatively small for most discharges,
with the possible exception of cooling water discharges. As such, the
use of cooling towers for all discharges is unrealistic and most likely
not cost efficient (i.e., there are other relatively simple and
inexpensive practices such as cooling ponds that could be used in place
of cooling towers to adequately reduce temperatures). Therefore, EPA
believes that the total annual costs to comply with the temperature
criteria in today's final rule will be at the lower end of the cost
range.
K. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA) provides that, whenever an
agency publishes a rule under 5 U.S.C. 553, after being required to
publish a general notice of proposed rulemaking, an agency must prepare
a regulatory flexibility analysis unless the head of the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. 5 U.S.C. 604 and 605. The
Administrator is today certifying, pursuant to section 605(b) of the
RFA, that this final rule will not have a significant impact on a
substantial number of small entities. Therefore, the Agency did not
prepare a regulatory flexibility analysis.
Under the CWA water quality standards program, States must adopt
water quality standards for their waters that must be submitted to EPA
for approval. If the Agency disapproves a State standard, EPA must
promulgate standards consistent with the statutory requirements. These
State standards (or EPA-promulgated standards) are implemented through
the NPDES program that limits discharges to navigable waters except in
compliance with an EPA permit or permit issued under an approved State
program. The CWA requires that all NPDES permits must include any
limits on discharges that are necessary to meet State water quality
standards.
Thus under the CWA, EPA's promulgation of water quality standards
where State standards are inconsistent with statutory requirements
establishes standards that are implemented through the NPDES permit
process by authorized States, or, in the absence of an approved State
NPDES program, by EPA. EPA implements the NPDES program in Idaho. EPA
and authorized States have discretion in deciding how to meet the water
quality standards and in developing discharge limits as needed to meet
the standards. While State or EPA implementation of federally-
promulgated water quality standards may result in new or revised
discharge limits being placed on small entities, the standards
themselves do not apply to any discharger, including small entities.
Today's final rule imposes obligations on EPA but, as explained
above, does not itself establish any requirements that are applicable
to small entities. As a result of this action, EPA will need to ensure
that permits issued in the State of Idaho include any limitations on
discharges necessary to comply with the standards in the final rule.
EPA and the State have a number of discretionary choices associated
with permit writing and total maximum daily load (TMDL) calculations
and waste load allocations (WLAs) which can affect the burden felt by
any small entity as a result of EPA action to implement the final rule.
While implementation of the final rule may ultimately result in some
new or revised permit conditions for some dischargers, including small
entities, EPA's action today does not impose any of these as yet
unknown requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rules' requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's final rule establishes no requirements applicable to small
entities, and so is not susceptible to regulatory flexibility analysis
as prescribed by the RFA. (``[N]o 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-
Thaws Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis
added by United Distribution court).) The Agency is thus certifying
that today's final rule will not have a significant economic impact on
a substantial number of small entities, within the meaning of the RFA.
L. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a major rule as defined by 5 U.S.C.
804(2).
[[Page 41183]]
M. Unfunded Mandates Reform Act
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, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written Statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. 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 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 the
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.
As noted above, this final rule is limited to water quality
standards for a limited number of waters within the State of Idaho. EPA
believes that today's final rule contains no regulatory requirements
that might significantly or uniquely affect small governments. EPA also
believes that this final rule does not contain a Federal mandate that
may result in expenditures of $100 million or more for State, local,
and Tribal governments, in the aggregate, or the private sector in any
one year. Thus, today's final rule is not subject to the requirements
of sections 202 and 205 of the UMRA.
N. Paperwork Reduction Act
Today's rulemaking imposes no new or additional 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.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Water pollution control, Water quality standards.
Dated: July 21, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 131 is
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 D--[Amended]
2. Section 131.33 is added to read as follows:
Sec. 131.33 Idaho.
(a) Temperature criteria for bull trout. (1) Except for those
streams or portions of streams located in Indian country, or as may be
modified by the Regional Administrator, EPA Region X, pursuant to
paragraph (a)(3) of this section, a temperature criterion of 10 deg.C,
expressed as an average of daily maximum temperatures over a seven-day
period, applies to the waterbodies identified in paragraph (a)(2) of
this section during the months of June, July, August and September.
(2) The following waters are protected for bull trout spawning and
rearing:
(i) BOISE-MORE BASIN: Devils Creek, East Fork Sheep Creek, Sheep
Creek.
(ii) BROWNLEE RESERVOIR BASIN: Crooked River, Indian Creek.
(iii) CLEARWATER BASIN: Big Canyon Creek, Cougar Creek, Feather
Creek, Laguna Creek, Lolo Creek, Orofino Creek, Talapus Creek, West
Fork Potlatch River.
(iv) COEUR D'ALENE LAKE BASIN: Cougar Creek, Fernan Creek, Kid
Creek, Mica Creek, South Fork Mica Creek, Squaw Creek, Turner Creek.
(v) HELLS CANYON BASIN: Dry Creek, East Fork Sheep Creek, Getta
Creek, Granite Creek, Kurry Creek, Little Granite Creek, Sheep Creek.
(vi) LEMHI BASIN: Adams Creek, Alder Creek, Basin Creek, Bear
Valley Creek, Big Eightmile Creek, Big Springs Creek, Big Timber Creek,
Bray Creek, Bull Creek, Cabin Creek, Canyon Creek, Carol Creek,
Chamberlain Creek, Clear Creek, Climb Creek, Cooper Creek, Dairy Creek,
Deer Creek, Deer Park Creek, East Fork Hayden Creek, Eighteenmile
Creek, Falls Creek, Ferry Creek, Ford Creek, Geertson Creek, Grove
Creek, Hawley Creek, Hayden Creek, Kadletz Creek, Kenney Creek, Kirtley
Creek, Lake Creek, Lee Creek, Lemhi River (above Big Eightmile Creek),
Little Eightmile Creek, Little Mill Creek, Little Timber Creek, Middle
Fork Little Timber Creek, Milk Creek, Mill Creek, Mogg Creek, North
Fork Kirtley Creek, North Fork Little Timber Creek, Paradise Creek,
Patterson Creek, Payne Creek, Poison Creek, Prospect Creek, Rocky
Creek, Short Creek, Squaw Creek, Squirrel Creek, Tobias Creek, Trail
Creek, West Fork Hayden Creek, Wright Creek.
(vii) LITTLE LOST BASIN: Badger Creek, Barney Creek, Bear Canyon,
Bear Creek, Bell Mountain Creek, Big Creek, Bird Canyon, Black Creek,
Buck Canyon, Bull Creek, Cedar Run Creek, Chicken Creek, Coal Creek,
Corral Creek, Deep Creek, Dry Creek, Dry Creek Canal, Firbox Creek,
Garfield Creek, Hawley Canyon, Hawley Creek, Horse Creek, Horse Lake
Creek, Iron Creek, Jackson Creek, Little Lost River (above Badger
Creek), Mahogany Creek, Main Fork Sawmill Creek, Massacre Creek, Meadow
Creek, Mill Creek, Moffett Creek, Moonshine Creek, Quigley Creek, Red
Rock Creek, Sands Creek, Sawmill Creek, Slide Creek, Smithie Fork,
Squaw Creek, Summerhouse Canyon, Summit Creek, Timber Creek, Warm
Creek, Wet Creek, Williams Creek.
(viii) LITTLE SALMON BASIN: Bascum Canyon, Boulder Creek, Brown
Creek, Campbell Ditch, Castle Creek, Copper Creek, Granite Fork Lake
Fork Rapid River, Hard Creek, Hazard Creek, Lake Fork Rapid River,
Little Salmon River (above Hazard Creek), Paradise Creek, Pony Creek,
Rapid River, Squirrel Creek, Trail Creek, West Fork Rapid River.
(ix) LOCHSA BASIN: Apgar Creek, Badger Creek, Bald Mountain Creek,
Beaver Creek, Big Flat Creek, Big Stew Creek, Boulder Creek, Brushy
Fork, Cabin Creek, Castle Creek, Chain Creek, Cliff Creek, Coolwater
Creek, Cooperation Creek, Crab Creek, Crooked Fork Lochsa River, Dan
Creek, Deadman Creek, Doe Creek, Dutch Creek, Eagle Creek, East Fork
Papoose Creek, East Fork Split Creek, East Fork Squaw Creek, Eel Creek,
Fern Creek, Fire Creek, Fish Creek, Fish Lake Creek, Fox Creek, Gass
Creek, Gold Creek, Ham Creek,
[[Page 41184]]
Handy Creek, Hard Creek, Haskell Creek, Heather Creek, Hellgate Creek,
Holly Creek, Hopeful Creek, Hungery Creek, Indian Grave Creek, Jay
Creek, Kerr Creek, Kube Creek, Lochsa River, Lone Knob Creek, Lottie
Creek, Macaroni Creek, Maud Creek, Middle Fork Clearwater River, No-
see-um Creek, North Fork Spruce Creek, North Fork Storm Creek, Nut
Creek, Otter Slide Creek, Pack Creek, Papoose Creek, Parachute Creek,
Pass Creek, Pedro Creek, Pell Creek, Pete King Creek, Placer Creek,
Polar Creek, Postoffice Creek, Queen Creek, Robin Creek, Rock Creek,
Rye Patch Creek, Sardine Creek, Shoot Creek, Shotgun Creek, Skookum
Creek, Snowshoe Creek, South Fork Spruce Creek, South Fork Storm Creek,
Split Creek, Sponge Creek, Spring Creek, Spruce Creek, Squaw Creek,
Storm Creek, Tick Creek, Tomcat Creek, Tumble Creek, Twin Creek, Wag
Creek, Walde Creek, Walton Creek, Warm Springs Creek, Weir Creek,
Wendover Creek, West Fork Boulder Creek, West Fork Papoose Creek, West
Fork Squaw Creek, West Fork Wendover Creek, White Sands Creek, Willow
Creek.
(x) LOWER CLARK FORK BASIN: Cascade Creek, East Fork, East Fork
Creek, East Forkast Fork Creek, Gold Creek, Johnson Creek, Lightning
Creek, Mosquito Creek, Porcupine Creek, Rattle Creek, Spring Creek,
Twin Creek, Wellington Creek.
(xi) LOWER KOOTENAI BASIN: Ball Creek, Boundary Creek, Brush Creek,
Cabin Creek, Caribou Creek, Cascade Creek, Cooks Creek, Cow Creek,
Curley Creek, Deep Creek, Grass Creek, Jim Creek, Lime Creek, Long
Canyon Creek, Mack Creek, Mission Creek, Myrtle Creek, Peak Creek, Snow
Creek, Trout Creek.
(xii) LOWER MIDDLE FORK SALMON BASIN: Acorn Creek, Alpine Creek,
Anvil Creek, Arrastra Creek, Bar Creek, Beagle Creek, Beaver Creek,
Belvidere Creek, Big Creek, Birdseye Creek, Boulder Creek, Brush Creek,
Buck Creek, Bull Creek, Cabin Creek, Camas Creek, Canyon Creek, Castle
Creek, Clark Creek, Coin Creek, Corner Creek, Coxey Creek, Crooked
Creek, Doe Creek, Duck Creek, East Fork Holy Terror Creek, Fawn Creek,
Flume Creek, Fly Creek, Forge Creek, Furnace Creek, Garden Creek,
Government Creek, Grouse Creek, Hammer Creek, Hand Creek, Holy Terror
Creek, J Fell Creek, Jacobs Ladder Creek, Lewis Creek, Liberty Creek,
Lick Creek, Lime Creek, Little Jacket Creek, Little Marble Creek,
Little White Goat Creek, Little Woodtick Creek, Logan Creek, Lookout
Creek, Loon Creek, Martindale Creek, Meadow Creek, Middle Fork Smith
Creek, Monumental Creek, Moore Creek, Mulligan Creek, North Fork Smith
Creek, Norton Creek, Placer Creek, Pole Creek, Rams Creek, Range Creek,
Routson Creek, Rush Creek, Sawlog Creek, Sheep Creek, Sheldon Creek,
Shellrock Creek, Ship Island Creek, Shovel Creek, Silver Creek, Smith
Creek, Snowslide Creek, Soldier Creek, South Fork Camas Creek, South
Fork Chamberlain Creek, South Fork Holy Terror Creek, South Fork Norton
Creek, South Fork Rush Creek, South Fork Sheep Creek, Spider Creek,
Spletts Creek, Telephone Creek, Trail Creek, Two Point Creek, West Fork
Beaver Creek, West Fork Camas Creek, West Fork Monumental Creek, West
Fork Rush Creek, White Goat Creek, Wilson Creek.
(xiii) LOWER NORTH FORK CLEARWATER BASIN: Adair Creek, Badger
Creek, Bathtub Creek, Beaver Creek, Black Creek, Brush Creek, Buck
Creek, Butte Creek, Canyon Creek, Caribou Creek, Crimper Creek, Dip
Creek, Dog Creek, Elmer Creek, Falls Creek, Fern Creek, Goat Creek,
Isabella Creek, John Creek, Jug Creek, Jungle Creek, Lightning Creek,
Little Lost Lake Creek, Little North Fork Clearwater River, Lost Lake
Creek, Lund Creek, Montana Creek, Mowitch Creek, Papoose Creek,
Pitchfork Creek, Rocky Run, Rutledge Creek, Spotted Louis Creek, Triple
Creek, Twin Creek, West Fork Montana Creek, Willow Creek.
(xiv) LOWER SALMON BASIN: Bear Gulch, Berg Creek, East Fork John
Day Creek, Elkhorn Creek, Fiddle Creek, French Creek, Hurley Creek,
John Day Creek, Kelly Creek, Klip Creek, Lake Creek, Little Slate
Creek, Little Van Buren Creek, No Business Creek, North Creek, North
Fork Slate Creek, North Fork White Bird Creek, Partridge Creek, Slate
Creek, Slide Creek, South Fork John Day Creek, South Fork White Bird
Creek, Warm Springs Creek.
(xv) LOWER SELWAY BASIN: Anderson Creek, Bailey Creek, Browns
Spring Creek, Buck Lake Creek, Butte Creek, Butter Creek, Cabin Creek,
Cedar Creek, Chain Creek, Chute Creek, Dent Creek, Disgrace Creek,
Double Creek, East Fork Meadow Creek, East Fork Moose Creek, Elbow
Creek, Fivemile Creek, Fourmile Creek, Gate Creek, Gedney Creek,
Goddard Creek, Horse Creek, Indian Hill Creek, Little Boulder Creek,
Little Schwar Creek, Matteson Creek, Meadow Creek, Monument Creek,
Moose Creek, Moss Creek, Newsome Creek, North Fork Moose Creek, Rhoda
Creek, Saddle Creek, Schwar Creek, Shake Creek, Spook Creek, Spur
Creek, Tamarack Creek, West Fork Anderson Creek, West Fork Gedney
Creek, West Moose Creek, Wounded Doe Creek.
(xvi) MIDDLE FORK CLEARWATER BASIN: Baldy Creek, Big Cedar Creek,
Browns Spring Creek, Clear Creek, Middle Fork Clear Creek, Pine Knob
Creek, South Fork Clear Creek.
(xvii) MIDDLE FORK PAYETTE BASIN: Bull Creek, Middle Fork Payette
River (above Fool Creek), Oxtail Creek, Silver Creek, Sixteen-to-one
Creek.
(xviii) MIDDLE SALMON-CHAMBERLAIN BASIN: Arrow Creek, Bargamin
Creek, Bat Creek, Bay Creek, Bear Creek, Bend Creek, Big Elkhorn Creek,
Big Harrington Creek, Big Mallard Creek, Big Squaw Creek, Bleak Creek,
Bronco Creek, Broomtail Creek, Brown Creek, Cayuse Creek, Center Creek,
Chamberlain Creek, Cliff Creek, Colt Creek, Corn Creek, Crooked Creek,
Deer Creek, Dennis Creek, Disappointment Creek, Dismal Creek, Dog
Creek, East Fork Fall Creek, East Fork Horse Creek, East Fork Noble
Creek, Fall Creek, Filly Creek, Fish Creek, Flossie Creek, Game Creek,
Gap Creek, Ginger Creek, Green Creek, Grouse Creek, Guard Creek,
Hamilton Creek, Horse Creek, Hot Springs Creek, Hotzel Creek, Hungry
Creek, Iodine Creek, Jack Creek, Jersey Creek, Kitchen Creek, Lake
Creek, Little Horse Creek, Little Lodgepole Creek, Little Mallard
Creek, Lodgepole Creek, Mayflower Creek, McCalla Creek, Meadow Creek,
Moose Creek, Moose Jaw Creek, Mule Creek, Mustang Creek, No Name Creek,
Owl Creek, Poet Creek, Pole Creek, Porcupine Creek, Prospector Creek,
Pup Creek, Queen Creek, Rainey Creek, Ranch Creek, Rattlesnake Creek,
Red Top Creek, Reynolds Creek, Rim Creek, Ring Creek, Rock Creek, Root
Creek, Runaway Creek, Sabe Creek, Saddle Creek, Salt Creek, Schissler
Creek, Sheep Creek, Short Creek, Shovel Creek, Skull Creek, Slaughter
Creek, Slide Creek, South Fork Cottonwood Creek, South Fork Chamberlain
Creek, South Fork Kitchen Creek, South Fork Salmon River, Spread Creek,
Spring Creek, Starvation Creek, Steamboat Creek, Steep Creek, Stud
Creek, Warren Creek, Webfoot Creek, West Fork Chamberlain Creek, West
Fork Rattlesnake Creek, West Horse Creek, Whimstick Creek, Wind River,
Woods Fork Horse Creek.
(xix) MIDDLE SALMON-PANTHER BASIN: Allen Creek, Arnett Creek,
Beaver Creek, Big Deer Creek, Blackbird Creek, Boulder Creek, Cabin
Creek, Camp Creek, Carmen Creek, Clear Creek, Colson Creek, Copper
Creek, Corral Creek, Cougar Creek, Cow Creek, Deadhorse Creek, Deep
Creek, East Boulder Creek, Elkhorn Creek, Fawn Creek, Fourth Of July
Creek, Freeman Creek, Homet Creek, Hughes Creek, Hull Creek, Indian
Creek, Iron Creek, Jackass Creek, Jefferson Creek, Jesse Creek, Lake
[[Page 41185]]
Creek, Little Deep Creek, Little Hat Creek, Little Sheep Creek, McConn
Creek, McKim Creek, Mink Creek, Moccasin Creek, Moose Creek, Moyer
Creek, Musgrove Creek, Napias Creek, North Fork Hughes Creek, North
Fork Iron Creek, North Fork Salmon River, North Fork Williams Creek,
Opal Creek, Otter Creek, Owl Creek, Panther Creek, Park Creek, Phelan
Creek, Pine Creek, Pony Creek, Porphyry Creek, Pruvan Creek, Rabbit
Creek, Rancherio Creek, Rapps Creek, Salt Creek, Salzer Creek, Saw Pit
Creek, Sharkey Creek, Sheep Creek, South Fork Cabin Creek, South Fork
Iron Creek, South Fork Moyer Creek, South Fork Phelan Creek, South Fork
Sheep Creek, South Fork Williams Creek, Spring Creek, Squaw Creek,
Trail Creek, Twelvemile Creek, Twin Creek, Weasel Creek, West Fork
Blackbird Creek, West Fork Iron Creek, Williams Creek, Woodtick Creek.
(xx) MOYIE BASIN: Brass Creek, Bussard Creek, Copper Creek, Deer
Creek, Faro Creek, Keno Creek, Kreist Creek, Line Creek, McDougal
Creek, Mill Creek, Moyie River (above Skin Creek), Placer Creek,
Rutledge Creek, Skin Creek, Spruce Creek, West Branch Deer Creek.
(xxi) NORTH AND MIDDLE FORK BOISE BASIN: Abby Creek, Arrastra
Creek, Bald Mountain Creek, Ballentyne Creek, Banner Creek, Bayhouse
Creek, Bear Creek, Bear River, Big Gulch, Big Silver Creek, Billy
Creek, Blackwarrior Creek, Bow Creek, Browns Creek, Buck Creek, Cabin
Creek, Cahhah Creek, Camp Gulch, China Fork, Coma Creek, Corbus Creek,
Cow Creek, Crooked River, Cub Creek, Decker Creek, Dutch Creek, Dutch
Frank Creek, East Fork Roaring River, East Fork Swanholm Creek, East
Fork Yuba River, Flint Creek, Flytrip Creek, Gotch Creek, Graham Creek,
Granite Creek, Grays Creek, Greylock Creek, Grouse Creek, Hot Creek,
Hungarian Creek, Joe Daley Creek, Johnson Creek, Kid Creek, King Creek,
La Mayne Creek, Leggit Creek, Lightening Creek, Little Queens River,
Little Silver Creek, Louise Creek, Lynx Creek, Mattingly Creek, McKay
Creek, McLeod Creek, McPhearson Creek, Middle Fork Boise River (above
Roaring River), Middle Fork Corbus Creek, Middle Fork Roaring River,
Mill Creek, Misfire Creek, Montezuma Creek, North Fork Boise River
(above Bear River), Phifer Creek, Pikes Fork, Quartz Gulch, Queens
River, Rabbit Creek, Right Creek, Roaring River, Robin Creek, Rock
Creek, Rockey Creek, Sawmill Creek, Scenic Creek, Scotch Creek, Scott
Creek, Shorip Creek, Smith Creek, Snow Creek, Snowslide Creek, South
Fork Corbus Creek, South Fork Cub Creek, Spout Creek, Steamboat Creek,
Steel Creek, Steppe Creek, Swanholm Creek, Timpa Creek, Trail Creek,
Trapper Creek, Tripod Creek, West Fork Creek, West Warrior Creek,
Willow Creek, Yuba River.
(xxii) NORTH FORK PAYETTE BASIN: Gold Fork River, North Fork Gold
Fork River, Pearsol Creek.
(xxiii) AHSIMEROI BASIN: Baby Creek, Bear Creek, Big Creek, Big
Gulch, Burnt Creek, Christian Gulch, Dead Cat Canyon, Ditch Creek,
Donkey Creek, Doublespring Creek, Dry Canyon, Dry Gulch, East Fork
Burnt Creek, East Fork Morgan Creek, East Fork Pahsimeroi River, East
Fork Patterson Creek, Elkhorn Creek, Falls Creek, Goldberg Creek,
Hillside Creek, Inyo Creek, Long Creek, Mahogany Creek, Mill Creek,
Morgan Creek, Morse Creek, Mulkey Gulch, North Fork Big Creek, North
Fork Morgan Creek, Pahsimeroi River (above Big Creek), Patterson Creek,
Rock Spring Canyon, Short Creek, Snowslide Creek, South Fork Big Creek,
Spring Gulch, Squaw Creek, Stinking Creek, Tater Creek, West Fork Burnt
Creek, West Fork North Fork Big Creek.
(xxiv) PAYETTE BASIN: Squaw Creek, Third Fork Squaw Creek.
(xxv) PEND OREILLE LAKE BASIN: Branch North Gold Creek, Cheer
Creek, Chloride Gulch, Dry Gulch, Dyree Creek, Flume Creek, Gold Creek,
Granite Creek, Grouse Creek, Kick Bush Gulch, North Fork Grouse Creek,
North Gold Creek, Plank Creek, Rapid Lightning Creek, South Fork Grouse
Creek, Strong Creek, Thor Creek, Trestle Creek, West Branch Pack River,
West Gold Creek, Wylie Creek, Zuni Creek.
(xxvi) PRIEST BASIN: Abandon Creek, Athol Creek, Bath Creek, Bear
Creek, Bench Creek, Blacktail Creek, Bog Creek, Boulder Creek, Bugle
Creek, Canyon Creek, Caribou Creek, Cedar Creek, Chicopee Creek,
Deadman Creek, East Fork Trapper Creek, East River, Fedar Creek, Floss
Creek, Gold Creek, Granite Creek, Horton Creek, Hughes Fork, Indian
Creek, Jackson Creek, Jost Creek, Kalispell Creek, Kent Creek, Keokee
Creek, Lime Creek, Lion Creek, Lost Creek, Lucky Creek, Malcom Creek,
Middle Fork East River, Muskegon Creek, North Fork Granite Creek, North
Fork Indian Creek, Packer Creek, Rock Creek, Ruby Creek, South Fork
Granite Creek, South Fork Indian Creek, South Fork Lion Creek, Squaw
Creek, Tango Creek, Tarlac Creek, The Thorofare, Trapper Creek, Two
Mouth Creek, Uleda Creek, Priest R. (above Priest Lake), Zero Creek.
(xxvii) SOUTH FORK BOISE BASIN: Badger Creek, Bear Creek, Bear
Gulch, Big Smoky Creek, Big Water Gulch, Boardman Creek, Burnt Log
Creek, Cayuse Creek, Corral Creek, Cow Creek, Edna Creek, Elk Creek,
Emma Creek, Feather River, Fern Gulch, Grape Creek, Gunsight Creek,
Haypress Creek, Heather Creek, Helen Creek, Johnson Creek, Lincoln
Creek, Little Cayuse Creek, Little Rattlesnake Creek, Little Skeleton
Creek, Little Smoky Creek, Loggy Creek, Mule Creek, North Fork Ross
Fork, Pinto Creek, Rattlesnake Creek, Ross Fork, Russel Gulch, Salt
Creek, Shake Creek, Skeleton Creek, Slater Creek, Smokey Dome Canyon,
South Fork Ross Fork, Three Forks Creek, Tipton Creek, Vienna Creek,
Weeks Gulch, West Fork Big Smoky Creek, West Fork Salt Creek, West Fork
Skeleton Creek, Willow Creek.
(xxviii) SOUTH FORK CLEARWATER BASIN: American River, Baker Gulch,
Baldy Creek, Bear Creek, Beaver Creek, Big Canyon Creek, Big Elk Creek,
Blanco Creek, Boundary Creek, Box Sing Creek, Boyer Creek, Cartwright
Creek, Cole Creek, Crooked River, Dawson Creek, Deer Creek, Ditch
Creek, East Fork American River, East Fork Crooked River, Elk Creek,
Fivemile Creek, Flint Creek, Fourmile Creek, Fox Creek, French Gulch,
Galena Creek, Gospel Creek, Hagen Creek, Hays Creek, Johns Creek,
Jungle Creek, Kirks Fork American River, Little Elk Creek, Little Moose
Creek, Little Siegel Creek, Loon Creek, Mackey Creek, Meadow Creek,
Melton Creek, Middle Fork Red River, Mill Creek, Monroe Creek, Moores
Creek, Moores Lake Creek, Moose Butte Creek, Morgan Creek, Mule Creek,
Newsome Creek, Nuggett Creek, Otterson Creek, Pat Brennan Creek, Pilot
Creek, Quartz Creek, Queen Creek, Rabbit Creek, Rainbow Gulch, Red
River, Relief Creek, Ryan Creek, Sally Ann Creek, Sawmill Creek,
Schooner Creek, Schwartz Creek, Sharmon Creek, Siegel Creek, Silver
Creek, Sixmile Creek, Sixtysix Creek, Snoose Creek, Sourdough Creek,
South Fork Red River, Square Mountain Creek, Swale Creek, Swift Creek,
Taylor Creek, Tenmile Creek, Trail Creek, Trapper Creek, Trout Creek,
Twentymile Creek, Twin Lakes Creek, Umatilla Creek, West Fork Big Elk
Creek, West Fork Crooked River, West Fork Gospel Creek, West Fork
Newsome Creek, West Fork Red River, West Fork Twentymile Creek, Whiskey
Creek, Whitaker Creek, Williams Creek.
(xxix) SOUTH FORK PAYETTE BASIN: Archie Creek, Ash Creek, Baron
Creek, Basin Creek, Bear Creek, Beaver Creek, Big Spruce Creek, Bitter
Creek, Blacks Creek, Blue Jay Creek, Burn Creek, Bush Creek, Camp
Creek, Canyon Creek, Casner Creek, Cat Creek, Chapman Creek, Charters
Creek, Clear Creek, Coski Creek, Cup Creek, Dead Man Creek, Deadwood
River, Deer Creek, East Fork Deadwood Creek, East
[[Page 41186]]
Fork Warm Springs Creek, Eby Creek, Elkhorn Creek, Emma Creek, Fall
Creek, Fence Creek, Fern Creek, Fivemile Creek, Fox Creek, Garney
Creek, Gates Creek, Goat Creek, Grandjem Creek, Grouse Creek, Habit
Creek, Helende Creek, Horse Creek, Huckleberry Creek, Jackson Creek,
Kettle Creek, Kirkham Creek, Lake Creek, Lick Creek, Little Tenmile
Creek, Logging Gulch, Long Creek, MacDonald Creek, Meadow Creek, Middle
Fork Warm Springs Creek, Miller Creek, Monument Creek, Moulding Creek,
Ninemile Creek, No Man Creek, No Name Creek, North Fork Baron Creek,
North Fork Canyon Creek, North Fork Deer Creek, North Fork Whitehawk
Creek, O'Keefe Creek, Packsaddle Creek, Park Creek, Pass Creek, Pinchot
Creek, Pine Creek, Pitchfork Creek, Pole Creek, Richards Creek, Road
Fork Rock Creek, Rock Creek, Rough Creek, Scott Creek, Silver Creek,
Sixmile Creek, Smith Creek, Smokey Creek, South Fork Beaver Creek,
South Fork Canyon Creek, South Fork Clear Creek, South Fork Payette
River (above Rock Creek), South Fork Scott Creek, South Fork Warm
Spring Creek, Spring Creek, Steep Creek, Stratton Creek, Topnotch
Creek, Trail Creek, Wapiti Creek, Warm Spring Creek, Warm Springs
Creek, Whangdoodle Creek, Whitehawk Creek, Wild Buck Creek, Wills
Gulch, Wilson Creek, Wolf Creek.
(xxx) SOUTH FORK SALMON BASIN: Alez Creek, Back Creek, Bear Creek,
Bishop Creek, Blackmare Creek, Blue Lake Creek, Buck Creek, Buckhorn
Bar Creek, Buckhorn Creek, Burgdorf Creek, Burntlog Creek, Cabin Creek,
Calf Creek, Camp Creek, Cane Creek, Caton Creek, Cinnabar Creek, Cliff
Creek, Cly Creek, Cougar Creek, Cow Creek, Cox Creek, Curtis Creek,
Deep Creek, Dollar Creek, Dutch Creek, East Fork South Fork Salmon
River, East Fork Zena Creek, Elk Creek, Enos Creek, Falls Creek, Fernan
Creek, Fiddle Creek, Fitsum Creek, Flat Creek, Fourmile Creek, Goat
Creek, Grimmet Creek, Grouse Creek, Halfway Creek, Hanson Creek, Hays
Creek, Holdover Creek, Hum Creek, Indian Creek, Jeanette Creek, Johnson
Creek, Josephine Creek, Jungle Creek, Knee Creek, Krassel Creek, Lake
Creek, Landmark Creek, Lick Creek, Little Buckhorn Creek, Little Indian
Creek, Lodgepole Creek, Loon Creek, Maverick Creek, Meadow Creek,
Middle Fork Elk Creek, Missouri Creek, Moose Creek, Mormon Creek, Nasty
Creek, Nethker Creek, Nick Creek, No Mans Creek, North Fork Bear Creek,
North Fork Buckhorn Creek, North Fork Camp Creek, North Fork Dollar
Creek, North Fork Fitsum Creek, North Fork Lake Fork, North Fork Lick
Creek, North Fork Riordan Creek, North Fork Six-bit Creek, Oompaul
Creek, Paradise Creek, Park Creek, Peanut Creek, Pepper Creek, Phoebe
Creek, Piah Creek, Pid Creek, Pilot Creek, Pony Creek, Porcupine Creek,
Porphyry Creek, Prince Creek, Profile Creek, Quartz Creek, Reeves
Creek, Rice Creek, Riordan Creek, Roaring Creek, Ruby Creek, Rustican
Creek, Ryan Creek, Salt Creek, Sand Creek, Secesh River, Sheep Creek,
Silver Creek, Sister Creek, Six-Bit Creek, South Fork Bear Creek, South
Fork Blackmare Creek, South Fork Buckhorn Creek, South Fork Cougar
Creek, South Fork Elk Creek, South Fork Fitsum Creek, South Fork
Fourmile Creek, South Fork Salmon River, South Fork Threemile Creek,
Split Creek, Steep Creek, Sugar Creek, Summit Creek, Tamarack Creek,
Teepee Creek, Threemile Creek, Trail Creek, Trapper Creek, Trout Creek,
Tsum Creek, Two-bit Creek, Tyndall Creek, Vein Creek, Victor Creek,
Wardenhoff Creek, Warm Lake Creek, Warm Spring Creek, West Fork
Buckhorn Creek, West Fork Elk Creek, West Fork Enos Creek, West Fork
Zena Creek, Whangdoodle Creek, Willow Basket Creek, Willow Creek, Zena
Creek.
(xxxi) ST. JOE R. BASIN: Bad Bear Creek, Bean Creek, Bear Creek,
Beaver Creek, Bedrock Creek, Berge Creek, Bird Creek, Blue Grouse
Creek, Boulder Creek, Broadaxe Creek, Bruin Creek, California Creek,
Cherry Creek, Clear Creek, Color Creek, Copper Creek, Dolly Creek, Dump
Creek, Eagle Creek, East Fork Bluff Creek, East Fork Gold Creek,
Emerald Creek, Fishhook Creek, Float Creek, Fly Creek, Fuzzy Creek,
Gold Creek, Heller Creek, Indian Creek, Kelley Creek, Malin Creek,
Marble Creek, Medicine Creek, Mica Creek, Mill Creek, Mosquito Creek,
North Fork Bean Creek, North Fork Saint Joe River, North Fork Simmons
Creek, Nugget Creek, Packsaddle Creek, Periwinkle Creek, Prospector
Creek, Quartz Creek, Red Cross Creek, Red Ives Creek, Ruby Creek, Saint
Joe River (above Siwash Creek), Setzer Creek, Sherlock Creek, Simmons
Creek, Siwash Creek, Skookum Creek, Thomas Creek, Thorn Creek, Three
Lakes Creek, Timber Creek, Tinear Creek, Trout Creek, Tumbledown Creek,
Wahoo Creek, Washout Creek, Wilson Creek, Yankee Bar Creek.
(xxxii) UPPER COEUR D'ALENE BASIN: Brown Creek, Falls Creek, Graham
Creek.
(xxxiii) UPPER KOOTENAI BASIN: Halverson Cr, North Callahan Creek,
South Callahan Creek, West Fork Keeler Creek
(xxxiv) UPPER MIDDLE FORK SALMON BASIN: Asher Creek, Automatic
Creek, Ayers Creek, Baldwin Creek, Banner Creek, Bear Creek, Bear
Valley Creek, Bearskin Creek, Beaver Creek, Bernard Creek, Big Chief
Creek, Big Cottonwood Creek, Birch Creek, Blue Lake Creek, Blue Moon
Creek, Boundary Creek, Bridge Creek, Browning Creek, Buck Creek, Burn
Creek, Cabin Creek, Cache Creek, Camp Creek, Canyon Creek, Cap Creek,
Cape Horn Creek, Casner Creek, Castle Fork, Casto Creek, Cat Creek,
Chokebore Creek, Chuck Creek, Cliff Creek, Cold Creek, Collie Creek,
Colt Creek, Cook Creek, Corley Creek, Cornish Creek, Cottonwood Creek,
Cougar Creek, Crystal Creek, Cub Creek, Cultus Creek, Dagger Creek,
Deer Creek, Deer Horn Creek, Doe Creek, Dry Creek, Duffield Creek,
Dynamite Creek, Eagle Creek, East Fork Elk Creek, East Fork Indian
Creek, East Fork Mayfield Creek, Elk Creek, Elkhorn Creek, Endoah
Creek, Fall Creek, Fawn Creek, Feltham Creek, Fir Creek, Flat Creek,
Float Creek, Foresight Creek, Forty-five Creek, Forty-four Creek, Fox
Creek, Full Moon Creek, Fuse Creek, Grays Creek, Grenade Creek, Grouse
Creek, Gun Creek, Half Moon Creek, Hogback Creek, Honeymoon Creek, Hot
Creek, Ibex Creek, Indian Creek, Jose Creek, Kelly Creek, Kerr Creek,
Knapp Creek, Kwiskwis Creek, Lime Creek, Lincoln Creek, Little Beaver
Creek, Little Cottonwood Creek, Little East Fork Elk Creek, Little
Indian Creek, Little Loon Creek, Little Pistol Creek, Lola Creek, Loon
Creek, Lucinda Creek, Lucky Creek, Luger Creek, Mace Creek, Mack Creek,
Marble Creek, Marlin Creek, Marsh Creek, Mayfield Creek, McHoney Creek,
McKee Creek, Merino Creek, Middle Fork Elkhorn Creek, Middle Fork
Indian Creek, Middle Fork Salmon River (above Soldier Creek), Mine
Creek, Mink Creek, Moonshine Creek, Mowitch Creek, Muskeg Creek,
Mystery Creek, Nelson Creek, New Creek, No Name Creek, North Fork Elk
Creek, North Fork Elkhorn Creek, North Fork Sheep Creek, North Fork
Sulphur Creek, Papoose Creek, Parker Creek, Patrol Creek, Phillips
Creek, Pierson Creek, Pinyon Creek, Pioneer Creek, Pistol Creek, Placer
Creek, Poker Creek, Pole Creek, Popgun Creek, Porter Creek, Prospect
Creek, Rabbit Creek, Rams Horn Creek, Range Creek, Rapid River, Rat
Creek, Remington Creek, Rock Creek, Rush Creek, Sack Creek, Safety
Creek, Salt Creek, Savage Creek, Scratch Creek, Seafoam Creek, Shady
Creek, Shake Creek, Sheep Creek, Sheep Trail Creek, Shell Creek,
Shrapnel Creek, Siah Creek, Silver Creek, Slide Creek, Snowshoe Creek,
Soldier Creek, South Fork Cottonwood Creek, South Fork Sheep Creek,
Spike Creek, Springfield
[[Page 41187]]
Creek, Squaw Creek, Sulphur Creek, Sunnyside Creek, Swamp Creek,
Tennessee Creek, Thatcher Creek, Thicket Creek, Thirty-two Creek,
Tomahawk Creek, Trail Creek, Trapper Creek, Trigger Creek, Twenty-two
Creek, Vader Creek, Vanity Creek, Velvet Creek, Walker Creek, Wampum
Creek, Warm Spring Creek, West Fork Elk Creek, West Fork Little Loon
Creek, West Fork Mayfield Creek, White Creek, Wickiup Creek, Winchester
Creek, Winnemucca Creek, Wyoming Creek.
(xxxv) UPPER NORTH FORK CLEARWATER BASIN: Adams Creek, Avalanche
Creek, Bacon Creek, Ball Creek, Barn Creek, Barnard Creek, Barren
Creek, Bear Creek, Beaver Dam Creek, Bedrock Creek, Bill Creek,
Bostonian Creek, Boundary Creek, Burn Creek, Butter Creek, Camp George
Creek, Canyon Creek, Cayuse Creek, Chamberlain Creek, Clayton Creek,
Cliff Creek, Coffee Creek, Cold Springs Creek, Collins Creek, Colt
Creek, Cool Creek, Copper Creek, Corral Creek, Cougar Creek, Craig
Creek, Crater Creek, Cub Creek, Davis Creek, Deadwood Creek, Deer
Creek, Dill Creek, Drift Creek, Elizabeth Creek, Fall Creek, Fire
Creek, Fix Creek, Flame Creek, Fly Creek, Fourth of July Creek, Fro
Creek, Frog Creek, Frost Creek, Gilfillian Creek, Goose Creek, Grass
Creek, Gravey Creek, Grizzly Creek, Hanson Creek, Heather Creek, Henry
Creek, Hidden Creek, Howard Creek, Independence Creek, Jam Creek,
Japanese Creek, Johnagan Creek, Johnny Creek, Junction Creek, Kelly
Creek, Kid Lake Creek, Kodiak Creek, Lake Creek, Laundry Creek,
Lightning Creek, Little Moose Creek, Little Weitas Creek, Liz Creek,
Long Creek, Marten Creek, Meadow Creek, Middle Creek, Middle North Fork
Kelly Creek, Mill Creek, Mire Creek, Monroe Creek, Moose Creek, Negro
Creek, Nettle Creek, Niagra Gulch, North Fork Clearwater River (Fourth
of July Creek), Nub Creek, Osier Creek, Perry Creek, Pete Ott Creek,
Placer Creek, Polar Creek, Post Creek, Potato Creek, Quartz Creek,
Rapid Creek, Rawhide Creek, Roaring Creek, Rock Creek, Rocky Ridge
Creek, Ruby Creek, Saddle Creek, Salix Creek, Scurry Creek, Seat Creek,
Short Creek, Shot Creek, Siam Creek, Silver Creek, Skull Creek, Slide
Creek, Smith Creek, Snow Creek, South Fork Kelly Creek, Spud Creek, Spy
Creek, Stolen Creek, Stove Creek, Sugar Creek, Swamp Creek, Tinear
Creek, Tinkle Creek, Toboggan Creek, Trail Creek, Vanderbilt Gulch,
Wall Creek, Weitas Creek, Williams Creek, Windy Creek, Wolf Creek,
Young Creek.
(xxxvi) UPPER SALMON BASIN: Alder Creek, Alpine Creek, Alta Creek,
Alturas Lake Creek, Anderson Creek, Aspen Creek, Basin Creek, Bayhorse
Creek, Bear Creek, Beaver Creek, Big Boulder Creek, Block Creek,
Blowfly Creek, Blue Creek, Boundary Creek, Bowery Creek, Broken Ridge
Creek, Bruno Creek, Buckskin Creek, Cabin Creek, Camp Creek, Cash
Creek, Challis Creek, Chamberlain Creek, Champion Creek, Cherry Creek,
Cinnabar Creek, Cleveland Creek, Coal Creek, Crooked Creek, Darling
Creek, Deadwood Creek, Decker Creek, Deer Creek, Dry Creek, Duffy
Creek, East Basin Creek, East Fork Salmon River, East Fork Valley
Creek, East Pass Creek, Eddy Creek, Eightmile Creek, Elevenmile Creek,
Elk Creek, Ellis Creek, Estes Creek, First Creek, Fisher Creek,
Fishhook Creek, Fivemile Creek, Fourth of July Creek, Frenchman Creek,
Garden Creek, Germania Creek, Goat Creek, Gold Creek, Gooseberry Creek,
Greylock Creek, Hay Creek, Hell Roaring Creek, Herd Creek, Huckleberry
Creek, Iron Creek, Job Creek, Jordan Creek, Juliette Creek, Kelly
Creek, Kinnikinic Creek, Lick Creek, Lightning Creek, Little Basin
Creek, Little Beaver Creek, Little Boulder Creek, Little West Fork
Morgan Creek, Lodgepole Creek, Lone Pine Creek, Lost Creek, MacRae
Creek, Martin Creek, McKay Creek, Meadow Creek, Mill Creek, Morgan
Creek, Muley Creek, Ninemile Creek, Noho Creek, Pack Creek, Park Creek,
Pat Hughes Creek, Pig Creek, Pole Creek, Pork Creek, Prospect Creek,
Rainbow Creek, Redfish Lake Creek, Road Creek, Rough Creek, Sage Creek,
Sagebrush Creek, Salmon River (Redfish Lake Creek), Sawmill Creek,
Second Creek, Sevenmile Creek, Sheep Creek, Short Creek, Sixmile Creek,
Slate Creek, Smiley Creek, South Fork East Fork Salmon River, Squaw
Creek, Stanley Creek, Stephens Creek, Summit Creek, Sunday Creek, Swimm
Creek, Taylor Creek, Tenmile Creek, Tennel Creek, Thompson Creek, Three
Cabins Creek, Trail Creek, Trap Creek, Trealor Creek, Twelvemile Creek,
Twin Creek, Valley Creek, Van Horn Creek, Vat Creek, Warm Spring Creek,
Warm Springs Creek, Washington Creek, West Beaver Creek, West Fork
Creek, West Fork East Fork Salmon River, West Fork Herd Creek, West
Fork Morgan Creek, West Fork Yankee Fork, West Pass Creek, Wickiup
Creek, Williams Creek, Willow Creek, Yankee Fork.
(xxxvii) UPPER SELWAY BASIN: Basin Creek, Bear Creek, Burn Creek,
Camp Creek, Canyon Creek, Cliff Creek, Comb Creek, Cooper Creek, Cub
Creek, Deep Creek, Eagle Creek, Elk Creek, Fall Creek, Fox Creek, Goat
Creek, Gold Pan Creek, Granite Creek, Grass Gulch, Haystack Creek,
Hells Half Acre Creek, Indian Creek, Kim Creek, Lake Creek, Langdon
Gulch, Little Clearwater River, Lodge Creek, Lunch Creek, Mist Creek,
Paloma Creek, Paradise Creek, Peach Creek, Pettibone Creek, Running
Creek, Saddle Gulch, Schofield Creek, Selway River (above Pettibone
Creek), South Fork Running Creek, South Fork Saddle Gulch, South Fork
Surprise Creek, Spruce Creek, Squaw Creek, Stripe Creek, Surprise
Creek, Set Creek, Tepee Creek, Thirteen Creek, Three Lakes Creek,
Triple Creek, Wahoo Creek, White Cap Creek, Wilkerson Creek, Witter
Creek.
(xxxviii) WEISER BASIN: Anderson Creek, Bull Corral Creek, Dewey
Creek, East Fork Weiser River, Little Weiser River, above Anderson
Creek, Sheep Creek, Wolf Creek.
(3) Procedures for site specific modification of listed waterbodies
or temperature criteria for bull trout.
(i) The Regional Administrator may, in his discretion, determine
that the temperature criteria in paragraph (a)(1) of this section shall
not apply to a specific waterbody or portion thereof listed in
paragraph (a)(2) of this section. Any such determination shall be made
consistent with Sec. 131.11 and shall be based on a finding that bull
trout spawning and rearing is not an existing use in such waterbody or
portion thereof.
(ii) The Regional Administrator may, in his discretion, raise the
temperature criteria in paragraph (a)(1) of this section as they
pertain to a specific waterbody or portion thereof listed in paragraph
(a)(2) of this section. Any such determination shall be made consistent
with Sec. 131.11, and shall be based on a finding that bull trout would
be fully supported at the higher temperature criteria.
(iii) For any determination made under paragraphs (a)(3)(i) or
(a)(3)(ii) of this section, the Regional Administrator shall, prior to
making such a determination, provide for public notice of and comment
on a proposed determination. For any such proposed determination, the
Regional Administrator shall prepare and make available to the public a
technical support document addressing each waterbody or portion thereof
that would be deleted or modified and the justification for each
proposed determination. This document shall be made available to the
public not later than the date of public notice.
(iv) The Regional Administrator shall maintain and make available
to the public an updated list of determinations made pursuant to
paragraphs (a)(3)(i) and (a)(3)(ii) of this section as well as the
technical support documents for each determination.
[[Page 41188]]
(v) Nothing in this paragraph (a)(3) shall limit the
Administrator's authority to modify the temperature criteria in
paragraph (a)(1) of this section or the list of waterbodies in
paragraph (a)(2) of this section through rulemaking.
(b) Use designations for surface waters. In addition to the State
adoped use designations, the following water body segments in Idaho are
designated for cold water biota: Canyon Creek (PB 121)--below mining
impact; South Fork Coeur d'Alene River (PB 140S)--Daisy Gulch to mouth;
Shields Gulch (PB 148S)--below mining impact; Blackfoot River (USB
360)--Equalizing Dam to mouth, except for any portion in Indian
country; Soda Creek (BB 310)--source to mouth.
(c) Excluded waters. Lakes, ponds, pools, streams, and springs
outside public lands but located wholly and entirely upon a person's
land are not protected specifically or generally for any beneficial
use, unless such waters are designated in Idaho 16.01.02.110. through
160., or, although not so designated, are waters of the United States
as defined at 40 CFR 122.2.
(d) Water quality standard variances. (1) The Regional
Administrator, EPA Region X, is authorized to grant variances from the
water quality standards in paragraph (b) of this section where the
requirements of this paragraph (d) are met. A water quality standard
variance applies only to the permittee requesting the variance and only
to the pollutant or pollutants specified in the variance; the
underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations
required under sections 301(b) and 306 of the CWA and by the permittee
implementing reasonable best management practices for nonpoint source
control; or
(ii) The variance would likely jeopardize the continued existence
of any threatened or endangered species listed under section 4 of the
Endangered Species Act or result in the destruction or adverse
modification of such species' critical habitat.
(3) Subject to paragraph (d)(2) of this section, a water quality
standards variance may be granted if the applicant demonstrates to EPA
that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use; or
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating State water conservation
requirements to enable uses to be met; or
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place; or
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the waterbody to its original condition or to operate such modification
in a way which would result in the attainment of the use; or
(v) Physical conditions related to the natural features of the
waterbody, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
(4) Procedures. An applicant for a water quality standards variance
shall submit a request to the Regional Administrator not later than the
date the applicant applies for an NPDES permit which would implement
the variance, except that an application may be filed later if the need
for the variance arises or the data supporting the variance becomes
available after the NPDES permit application is filed. The application
shall include all relevant information showing that the requirements
for a variance have been satisfied. The burden is on the applicant to
demonstrate to EPA's satisfaction that the designated use is
unattainable for one of the reasons specified in paragraph (d)(3) of
this section. If the Regional Administrator preliminarily determines
that grounds exist for granting a variance, he shall publish notice of
the proposed variance. Notice of a final decision to grant a variance
shall also be published. EPA will incorporate into the permittee's
NPDES permit all conditions needed to implement the variance.
(5) A variance may not exceed 5 years or the term of the NPDES
permit, whichever is less. A variance may be renewed if the applicant
reapplies and demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the applicant did
not comply with the conditions of the original variance.
[FR Doc. 97-19797 Filed 7-30-97; 8:45 am]
BILLING CODE 6560-50-P
