Revision to the Water Quality Planning and Management Regulation Listing Requirements

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is revising the Water Quality Planning and Management regulation to remove the requirement in most cases that States, Territories and authorized Tribes submit to EPA for review by April 1, 2000, lists of water quality limited waterbodies. EPA's current regulations interpret the provision in section 303(d) of the Clean Water Act for submission of lists to EPA “from time to time” to require States, Territories and authorized Tribes to submit lists on April 1 of every even-numbered year. EPA is not, however, changing the existing requirement to submit a list in 2000 if a court order or consent decree, or commitment in a settlement agreement dated prior to January 1, 2000, expressly requires EPA to take action related to a State's, Territory's, or authorized Tribe's year 2000 list. Also, EPA is not at this time changing the existing regulatory requirement that subsequent lists be submitted on April 1, 2002, and on April 1 of subsequent even numbered years.

EFFECTIVE DATE:

March 31, 2000.

ADDRESSES:

This rule's administrative record is available for review and copying from 9:00 to 4:00 p.m., Monday through Friday, excluding legal holidays, at the Water Docket (W-99-25), East Tower Basement, Room EB-57, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. The administrative record includes a Response to Comments document which includes a response to all timely comments that EPA received on the proposal for this rule. For access to materials, please call (202) 260-3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT:

James Pendergast, U.S. EPA, Office of Wetlands, Oceans and Watersheds (4503F), 1200 Pennsylvania Ave., NW., Washington, DC 20640, (202) 260-9549.

SUPPLEMENTARY INFORMATION:

Authority: Clean Water Act Section 303.

I. Potentially Regulated Entities

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether you are regulated by this action, you should carefully examine the applicability criteria in § 130.1 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to you, please consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

II. Background

A. Existing Requirement

Section 303(d)(1) of the CWA requires States, Territories and authorized Tribes to submit to EPA “from time to time” a list of waterbodies for which existing pollution effluent limitations are not stringent enough to attain and maintain State, Territorial and authorized Tribal water quality standards. The statute requires EPA to review and approve or disapprove the lists within 30 days of the time they are submitted. If EPA disapproves a list, EPA must establish the list for the State, Territory or authorized Tribe.

In 1992, EPA revised the regulations implementing section 303(d)(1) to require States, Territories, and authorized Tribes to submit lists of water quality limited waterbodies to EPA every two years, with the 1992 lists due to EPA no later than October 22, 1992, and subsequent lists due on April 1 of even-numbered years. The most recent listing deadline was April 1, 1998, and all States, Territories, and authorized Tribes have now submitted 1998 section 303(d) lists to EPA. As of March 2000, EPA had approved all but one list.

B. Proposed Rule

On February 2, 2000, EPA proposed to eliminate the regulatory requirement that States, Territories, and authorized Tribes submit to EPA by April 1, 2000, their lists of water quality limited waterbodies, unless EPA has been required by a court order or consent decree, or commitment in a settlement agreement to take action based on a year 2000 list. (EPA used the term “impaired and threatened” in the proposal; however the precise term from the current regulations is “water quality limited.”) This proposed rule was published in the Federal Register on February 2, 2000, with a 30 day comment period. The public comments are available for review in the Water Docket, Room EB-57 (East Tower Basement), 401 M Street, SW, Washington, DC 20460.

The February 2, 2000, proposal only affected the April 1, 2000, list; it retained the existing regulatory requirement that subsequent lists be submitted on April 1, 2002, and on April 1 of subsequent even-numbered years. EPA proposed applying the changed regulation to instances where EPA has been required by a court order or consent decree, or commitment in a settlement agreement to take action based on a State's, Territory's or authorized Tribe's year 2000 list. EPA made this proposal to avoid unsettling a commitment embodied in documents filed in or entered by a court.

C. Comments Sought

EPA sought comments in the proposal on whether to eliminate the April 1, 2000, listing deadline in light of the comprehensive improvements and clarifications proposed to the existing listing requirements on August 23, 1999 (see 64 FR 46012). EPA also requested comments on whether to move the April 2000 list submission date to another date prior to April 2002. EPA also requested comments on whether to include in the final rule the limited exception which would require a State, Territory, and authorized Tribe to submit a list in the year 2000 only if a court order or consent decree dated prior to January 1, 2000, expressly requires (or if a similarly dated settlement agreement committed) EPA to take action related to that year 2000 list. Finally, EPA sought comments on whether it should promulgate in this rule the requirements for removing a waterbody from the section 303(d) list that EPA proposed on August 23, 1999.

III. Summary of Final Rule

A. Removing the Requirement To Submit the April 1, 2000, List

EPA is today amending its regulations at 40 CFR 130.7(d)(1) to remove the requirement that States, Territories, and authorized Tribes submit a section 303(d) list by April 1, 2000. After review of comments, EPA still believes that its reasons for removing the year 2000 list, as proposed, are valid. Many comments supported the proposal by pointing out that States need additional resources to establish the large numbers of TMDLs required by the 1998 list. Three States noted that the rule would have no effect on them because they would submit a list by April 2000; however, these States did not oppose the rule. Of the comments opposing the proposal, all but two supported the proposal on the condition that EPA simultaneously promulgate regulations to require that a waterbody attain water quality standards before it can be removed from the list. Two other comments opposing the rule suggested that most States would have already developed the information for a year 2000 list and thus there would be no savings in resources to redirect towards TMDL development. However, of the 32 States submitting (or joining with submitted) comments, only three said they had developed the information for a year 2000 section 303(d) list. Another comment noted the value of an updated list for citizens to use to highlight where environmental problems require more attention. EPA recognizes this value of the section 303(d) lists, but does not believe it out-weighs the benefit of affording States, Territories, and authorized Tribes flexibility to make further progress in establishing TMDLs on already-listed waterbodies instead of submitting the section 303(d) list in the year 2000. Two comments questioned whether States would actually use the additional time to collect and analyze data for the next section 303(d) list. EPA notes that a comment submitted by a State specifically discussed using the time to evaluate biological information that would otherwise have been directed towards preparing a year 2000 list. Another State comment pointed to the data collection efforts it had underway.

One comment opposing the proposal claimed it was contrary to Congressional intent that all TMDLs be established prior to the Clean Water Act requirement that effluent limitations attain water quality standards by July 1, 1977. EPA disagrees with the assertion that the Clean Water Act required all TMDLs be established by July 1, 1977. Regardless, this assertion is irrelevant to EPA's decision to remove the requirement (codified by EPA by regulation in 1992) that States, Territories and authorized Tribes submit a section 303(d) list in the year 2000. Nevertheless, EPA recognizes the statements in the Congressional Record and that section 301 of the Clean Water Act cited by the commenter indicates that certain benchmarks should be met by July 1, 1977. EPA notes, however, that section 301 applies to effluent limitations whereas section 303 applies to TMDLs. Furthermore, EPA has stated previously that water quality based effluent limits can be set in the absence of a TMDL. 43 FR 60664. To codify this, EPA has published National Pollutant Discharge Elimination System (NPDES) regulations that clearly require NPDES permit authorities to ensure that effluent limitations are derived from and comply with all applicable water quality standards; this requirement does not depend on whether there exists an applicable TMDL. 54 FR 23879.

Another comment claimed that persons with interests in impaired but unlisted waterbodies receive no benefits if a State delays listing their waterbody in lieu of establishing a TMDL for another water. EPA believes that establishing TMDLs speeds up the process towards attaining water quality standards, which is the underlying principal of the Clean Water Act. Thus, EPA believes that the overall interests of residents will be better served if States, Territories, and authorized Tribes focus their efforts on establishing TMDLs before the next section 303(d) list is due.

EPA received comments suggesting that EPA should take action on lists that States, Territories, and authorized Tribes voluntarily submit by April 2000 or thereafter. EPA also received one comment requesting that EPA take no action on a section 303(d) list that a State may submit in the year 2000. EPA interprets section 303(d) to require EPA to review and either approve or disapprove a final section 303(d) list whenever submitted by a State, Territory, or authorized Tribe.

EPA received only four comments on its proposal to require a year 2000 list where EPA has been required by a court order or consent decree, or commitment in a settlement agreement to take action based on a year 2000 list. Two comments supported this. The other two suggested that EPA condition this requirement to where it is infeasible to amend the court order or consent decree, or commitment in a settlement agreement. When EPA published the proposal, EPA stated that it believed that this provision would only apply to the State of Georgia and solicited comment on whether this would apply to others. EPA received no comment or information identifying any other State. EPA continues to believe that a State, Territory, and authorized Tribe should submit a section 303(d) list if a court order or consent decree, or commitment in a settlement agreement dated prior to January 1, 2000, expressly requires EPA to take action related to that year 2000 list. Therefore, EPA is promulgating this regulation as proposed. Information available to EPA indicates that this requirement only affects Georgia. EPA understands that Georgia intends to submit a list in the year 2000.

EPA received several comments suggesting dates on which States, Territories, and authorized Tribes should be required to submit the next section 303(d) list. After reviewing those comments, and considering the fact that EPA intends to publish the final rules for the TMDL program fairly soon, EPA will establish the date for the next 303(d) list when the final TMDL rules are published. Until then, the date for the next list is April 1, 2002.

EPA received many comments discussing whether EPA should require in this final rule that a State must keep each impaired waterbody on the list until water quality standards are attained for that waterbody and may remove a previously listed impaired waterbody only if new data or information indicates that the waterbody has attained water quality standards. Many comments asked that EPA make this change in this rule and roughly an equal number of comments opposed making this change now instead as of part of the revisions to the Water Quality Planning and Management Regulation later. After reviewing those comments, and considering the fact that EPA intends to publish the final rules for the TMDL program fairly soon, EPA has decided to not take action on this issue in today's final rule. EPA believes that it can better consider the aspects of this issue in conjunction with decisions on the other issues that were proposed in the August 23, 1999 proposal. This belief is consistent with the recommendation of the Federal Advisory Committee Act (FACA) Committee report on page 9 that cautioned readers of the report to not take individual recommendations out of context because many recommendations are interrelated. Because EPA relied on the FACA Committee report for many of the elements of the August 23, 1999, proposal, EPA believes it is better to consider the issue of criteria for removing a waterbody from the section 303(d) list in conjunction with the other elements of the August 23, 1999, proposal.

As stated in the proposal to this rule, EPA intends to carefully review any proposed removal of a waterbody from a section 303(d) list to ensure there is information specific to the waterbody to support the removal. 65 FR 4921. In particular, where a waterbody was previously listed based on certain data or information, and the State removes the waterbody without developing or obtaining any new information, EPA will carefully evaluate the State's re-evaluation of the available information, and would not approve such removals unless the State's submission describes in detail why it is appropriate under the current regulations to remove each affected waterbody. EPA has the authority to disapprove the list if EPA identifies existing and readily available information that was existing and readily available at the time the State submitted the list and that data shows that a waterbody does not attain water quality standards.

B. Other Comments

EPA received comments on other issues germane only to the August 23, 1999, proposal and for which EPA did not solicit comment in the February 2, 2000, proposal. EPA is deferring decision on those issues until the time when EPA publishes the final rule for the comprehensive TMDL program.

C. Effective Date of the Final Rule

EPA has decided to make this rule effective upon publication. The Administrative Procedure Act allows the effective date of a rule to be less than 30 days from the publication. 5 U.S.C. 553(d)(1)-(3). Section 553(d)(1) allows the effective date to be less than 30 days from the publication date if the rule grants an exemption or relieves a restriction. EPA believes that the part of this rule that removes the obligation that States, Territories, and authorized Tribes submit section 303(d) lists for the year 2000 satisfies section 553(d)(1). Because it relieves an obligation for a list submission on April 1, 2000, EPA believes the rule should be effective before that date. Furthermore, section 553(d)(3) allows the effective date to be less than 30 days from the publication date for good cause if the agency expresses the reasons and publishes them with the rule.

IV. Regulatory Assessment Requirements

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

RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, a small entity is defined as: (1) A small business according to the RFA default definition for small business (based on the Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. For purposes of the RFA, States, Territories and tribal governments are not considered small governments jurisdictions since they are independent sovereigns.

The RFA requires analysis of the impacts of a rule on the small entities subject to the rule's requirements. See United States Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C.Cir. 1996); Mid-Tex Electric Co-op., Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985); Motor & Equipment Manufacturers Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998). Today's rule establishes requirements for only States, Territories and authorized Tribes. It establishes no requirements applicable to small entities, and so is not susceptible to regulatory flexibility analysis as prescribed by the RFA. “[N]o [regulatory flexibility] analysis is necessary when an agency determines that the rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule.” United Distribution at 1170, quoting Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis added by United Distribution court). After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This final rule will not impose any requirements on small entities. It eliminates the current regulatory requirement which directs States, Territories and authorized Tribes (and EPA, if it disapproves the State's, Territory's or authorized Tribe's efforts) to establish lists of impaired waterbodies in the year 2000.

B. 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 final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

C. 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 attains 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 affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. The final rule imposes no enforceable duty on any State, local, or tribal governments or the private sector. The final rule is deregulatory because it eliminates the current regulatory requirement that States, Territories, and authorized Tribes submit lists of impaired waterbodies in 2000. Thus, today's final rule is not subject to the requirements of section 202 and 205 of UMRA.

For the same reasons discussed in the section on the Regulatory Flexibility Act, EPA has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's final rule is not subject to the requirements of section 203 of UMRA.

D. Paperwork Reduction Act

This final rule does not contain any information collection, reporting, or record keeping requirements. Thus, this final rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final rule could actually streamline and reduce existing OMB-approved requirements by 25,424 hours in the year 2000.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless EPA consults with State and local officials early in the process of developing the proposed regulation.

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As discussed above, the final rule that removes the obligation that States, Territories, and authorized Tribes submit a section 303(d) list is deregulatory because it eliminates a current requirement. Thus, the requirements of section 6 of the Executive Order do not apply to this final rule.

F. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's final rule does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose substantial direct compliance costs on them. Currently, there are no tribes authorized to establish TMDLs or lists of impaired waterbodies. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to today's final rule.

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

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

H. National Technology Transfer and Advancement Act

As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d)(15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This final rule does not involve any technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

I. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit 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 United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective March 31, 2000, for reasons discussed previously in this preamble.

List of Subjects in 40 CFR Part 130

• Environmental protection
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Water pollution control

For the reasons set out in the preamble, EPA is amending title 40, chapter I of the Code of Federal Regulations as follows:

PART 130—[AMENDED]

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

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

2. Amend Section 130.7 by adding a new sentence after the third sentence in paragraph (d)(1) as follows: