[Federal Register: November 6, 2003 (Volume 68, Number 215)]
[Rules and Regulations]
[Page 62740-62744]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no03-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7584-1]
Water Quality Standards; Withdrawal of Federal Nutrient Standards
for the State of Arizona
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: EPA is taking final action to amend the Federal regulations to
withdraw water quality criteria applicable to Arizona. In 1976, EPA
[[Page 62741]]
promulgated Federal criteria for nutrients in Arizona. The Federal
criteria consisted of numeric ambient water quality criteria for
nutrients for eleven river segments and narrative water quality
criteria for nutrients applicable to all surface waters in Arizona.
Arizona has now adopted its own numeric and narrative water quality
criteria for nutrients, which EPA has approved. Arizona has also
established and EPA has approved implementation procedures for its
narrative nutrient water quality criteria. Therefore, EPA has
determined that the Federally promulgated criteria for Arizona are no
longer needed and is withdrawing the Federal criteria for nutrients in
Arizona.
DATES: This rule is effective on December 8, 2003.
ADDRESSES: The supporting record for this decision may be inspected at
EPA Region 9, 75 Hawthorne Street, Water Division, Clean Water Act
Standards and Permits Office, San Francisco, CA 94105, Monday through
Friday, excluding legal holidays, during normal business hours of 9
a.m. to 5:00 p.m. Please contact Gary Sheth, as listed in the FOR
FURTHER INFORMATION CONTACT section, before arriving.
A copy of Arizona's water quality standards may be obtained
electronically from EPA's Water Quality Standards Repository, at http://www.epa.gov/waterscience/wqs/
.
FOR FURTHER INFORMATION CONTACT: Gary Sheth at EPA Region 9, Water
Division, Clean Water Act Standards and Permits Office (WTR-5), 75
Hawthorne Street, San Francisco, CA 94105 (tel: 415-972-3516, fax: 415-947-3545) or e-mail to sheth.gary@epa.gov, or Kellie Kubena at EPA
Headquarters, Office of Water (4305T), 1200 Pennsylvania Ave, NW.,
Washington, DC 20460 (tel: 202-566-0448, fax: 202-566-0409) or e-mail to kubena.kellie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
No one is regulated by this rule. This rule merely withdraws
certain Federal water quality criteria for nutrients applicable in
Arizona.
II. Background
A. What Are the Statutory and Regulatory Requirements Relevant to This
Action?
Section 303(c) (33 U.S.C. 1313(c)) of the Clean Water Act (CWA or
Act) directs States, with oversight from EPA, to adopt water quality
standards to protect the public health and welfare, enhance the quality
of water and serve the purposes of the Act. States are required to
develop water quality standards for waters of the United States within
the State. Section 303(c) and EPA's implementing regulations provide
that a water quality standard shall include the designated use or uses
to be made of the water, the water quality criteria necessary to
protect those uses, and an antidegradation policy. 33 U.S.C.
1313(t)(2)(A); 40 CFR 131.10-.12. States may also include in their
water quality standards policies generally affecting the standards'
application and implementation. 40 CFR 131.6(f); 40 CFR 131.13. States
are required to review their water quality standards at least once
every three years and, if appropriate, revise or adopt new standards.
33 U.S.C. 1313(c)(2). States are required to submit the results of
their reviews to EPA. EPA then reviews the State's standards for
consistency with the CWA and EPA's implementing regulations at 40 CFR
part 131 and approves or disapproves any new or revised standards. 33
U.S.C. 1313(c)(3). Section 303(c)(4) of the CWA authorizes EPA to
promulgate water quality standards when necessary to supersede
disapproved State water quality standards, or in any case where the
Administrator determines that new or revised standards are necessary to
meet the requirements of the CWA.
EPA may issue a rule to withdraw Federal water quality standards
promulgated for a State when the State adopts, and EPA approves, State
water quality standards that meet the requirements of the CWA and the
implementing Federal regulations. That is the situation here.
B. What Actions Have EPA and Arizona Taken in the Past Relating to
Water Quality Standards for Nutrients in the State?
In 1976, EPA determined that water quality standards for nutrients
submitted by Arizona as of that time did not meet the CWA's
requirements. On June 22, 1976, EPA promulgated Federal numeric
nutrient criteria for total phosphates applicable to eleven river
segments in Arizona, Federal numeric nutrient criteria for total
nitrates applicable to four waterbodies, and Federal narrative nutrient
criteria applicable to all surface waters of the United States in
Arizona. See 40 CFR 131.31(a); 41 FR 25000 (June 22, 1976). Although
EPA used the phrase nutrient standards to describe the water quality
criteria for nutrients codified at 40 CFR 131.31(a), in today's action,
EPA is using the more precise term criteria to refer to the Federal
water quality criteria for nutrients in Arizona that EPA is
withdrawing.
Since EPA's promulgation of nutrient water quality criteria in
1976, EPA has approved the numeric and narrative water quality criteria
for nutrients adopted by Arizona. See, e.g., EPA's Federal Register
notices of approvals at 53 FR 4209 (Feb. 12, 1988); 58 FR 62124 (Nov.
24, 1993); 60 FR 51793 (Oct. 3, 1995). Specifically, in a series of
actions, the Arizona Department of Environmental Quality (ADEQ)
adopted, and EPA approved, numeric nutrient criteria for total nitrogen
and total phosphorous applicable to specific water bodies in Arizona.
See Arizona Administrative Code, R18-11-109, 11-110, and 11-112.
Arizona has also adopted and EPA has approved narrative nutrient
criteria applicable to all surface waters of the State. See Arizona
Administrative Code, R18-11-108. Arizona's narrative nutrient criteria
provide that ``navigable waters shall be free from pollutants in
amounts or combinations that cause the growth of algae or aquatic
plants that inhibit or prohibit the habitation, growth or propagation
of other aquatic life or that impair recreational uses''. See Arizona
Administrative Code, R18-11-108.A.5.
In January 1996, ADEQ established implementation procedures for its
narrative nutrient water quality criteria (see Arizona's Implementation
Guidelines for the Narrative Nutrient Standard (http://www.sosaz.com/public_services/Title_18/18_table.htm
)). On April 26, 1996, EPA
approved these implementation procedures. On May 7, 1996, EPA
promulgated additional water quality standards for Arizona, noting that
the State had identified its own implementation procedures to translate
its narrative criteria. See 61 FR 20686 (May 7, 1996). Although EPA did
not specifically address the continuing need for the 1976 Federal
nutrient criteria, EPA observed in that notice that Arizona's numeric
and narrative nutrient criteria, as supplemented by the State's newly
established implementation procedures, were consistent with the CWA.
See 61 FR 20692 (May 7, 1996). Consistent with this earlier finding,
EPA has determined that the 1976 Federal criteria for nutrients for
Arizona waters are redundant and no longer necessary. On July 30, 2001,
EPA proposed to withdraw the Federal water quality criteria for
nutrients applicable to Arizona surface waters at 40 CFR 131.31(a).
(See Section III for a discussion of comments received). EPA is now
finalizing its decision to withdraw federally promulgated nutrient
criteria applicable to Arizona.
[[Page 62742]]
EPA notes that Arizona's adopted and approved numeric water quality
criteria for nutrients are based on total phosphorous and total
nitrogen whereas the numeric water quality criteria for nutrients
promulgated by EPA in 1976 are based on total phosphates and total
nitrates. Total phosphorous and total nitrogen are more encompassing
measurements of the presence of these types of nutrients than total
phosphates and total nitrates, for which EPA promulgated water quality
criteria in 1976, because elemental phosphorous and nitrogen can be
present in different forms under different conditions (including, but
not limited to, phosphates and nitrates). For this reason, EPA
currently recommends adopting criteria for total phosphorous and total
nitrogen. See Nutrient Criteria Technical Guidance Manual: Lakes and
Reservoirs, EPA-822-B-00-001; Ambient Water Quality Criteria
Recommendations: Lakes and Reservoirs in Nutrient Ecoregion II, EPA-
822-B-00-007; Ambient Water Quality Criteria Recommendations: Rivers
and Streams in Nutrient Ecoregion II, EPA 822-B-00-015; Ambient Water
Quality Criteria Recommendations: Rivers and Streams in Nutrient
Ecoregion III, EPA 822-B-00-016. Although EPA is not able to directly
compare Arizona's nutrient criteria based on total phosphorous and
total nitrogen with the Federally promulgated criteria based on total
phosphates and total nitrates, the CWA and EPA's regulations at 40 CFR
131.11 only require that States adopt criteria that are scientifically
defensible and sufficiently detailed to protect the designated uses of
the waterbodies. When EPA approved these criteria, EPA determined that
they met this requirement and adequately protected Arizona waters from
excess nutrients (the same objective of the 1976 Federal nutrients
water quality criteria). For more detailed information on EPA's
analysis, see EPA's approval decisions contained in the docket for this
rulemaking
C. What Water Quality Standards Will Apply Now That EPA Is Withdrawing
the Federal Nutrient Criteria in Arizona?
The goal of EPA's 1976 rulemaking in Arizona was to establish water
quality criteria to protect the designated uses of Arizona surface
waters. EPA withdraws federally promulgated water quality standards
after the State adopts, and EPA approves, water quality standards that
meet the requirements of the CWA and the implementing Federal
regulations. As discussed earlier, in 1996, after approving Arizona's
nutrient criteria and implementation procedures, EPA determined that
Arizona's standards met the requirements of the CWA and EPA's
implementing regulations and Federally promulgated nutrient criteria
were no longer necessary. As a result of today's action, Arizona's
numeric and narrative nutrient criteria, and the corresponding
implementation procedures for the narrative criteria are the applicable
nutrient criteria. Not affected by this proposal are Federal water
quality standards codified at 40 CFR 131.31(b) and (c), which among
other things designate fish consumption as a use for certain waters,
and require implementation of a monitoring program regarding mercury's
effects on wildlife. These provisions remain in effect.
Table 1 below displays the Federal numeric criteria for nutrients
and the State's corresponding criteria. The waterbody segments listed
in Table 1 are the waters for which the Federal numeric nutrient
criteria being withdrawn today had applied. For convenience, the
Federal nutrient criteria and the corresponding State nutrient criteria
are listed for each water body. See 40 CFR 131.31(a). Because the
Federal and State nutrient criteria are based on measurements of
different parameters (i.e., total phosphates and total nitrates versus
total phosphorous and total nitrogen), this table does not provide a
direct comparison of the Federal and State nutrient criteria but rather
describes how individual waters that are currently covered by the
Federal criteria for nutrients will be covered by Arizona's water
quality standards. For waterbodies or waterbody segments listed in rows
4, 8, 9, and 11, Arizona has adopted numeric nutrient water quality
criteria for either total nitrogen, total phosphorus, or both. In
addition to the numeric nutrient criteria in Table 1 for the listed
stream segments, Arizona has adopted numeric nutrient criteria for
additional stream segments not covered by the Federal nutrient
criteria. Between 1976 and 1996, EPA approved Arizona's numeric
nutrient criteria because the criteria were derived using sound science
and are protective of the designated uses of those waters. Readers
interested in viewing Arizona's numeric nutrient criteria not listed in
Table 1 should consult Arizona's water quality standards (R18-11-109,
11-110, and 11-112). Arizona's water quality standards can be viewed on
the EPA Office of Water Standards Repository Web site at http://www.epa.gov/waterscience/standards/wqslibrary/
.
For waterbodies or waterbody segments where Arizona has not adopted
any numeric nutrient water quality criteria to replace the Federal
numeric water quality criteria for nutrients (the waters listed in rows
1, 2, 3, 5, 6, 7, and 10), only the State's narrative nutrient criteria
apply. In 1996, EPA determined that the narrative nutrient criteria, in
conjunction with Arizona's Implementation Guidelines for the Narrative
Nutrient Standard, would provide the same intended level of protection
as the Federal criteria by fully protecting the designated uses of
these waters because they allow for consideration of site-specific
water quality information. Indeed, when necessary, narrative criteria
with the appropriate implementation procedures can be used to obtain
quantitative measures having a greater degree of precision and site
specificity than a single numeric target. EPA reviewed and approved
Arizona's narrative nutrient criteria and the Implementation Guidelines
for the Narrative Nutrient Standard as being scientifically defensible
and consistent with the CWA and EPA's implementing regulations at 40
CFR 131.11.
Table 1.--Federal Nutrient Criteria in CFR 131.31(a) and Arizona Nutrient Criteria
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Federal criteria at 40 Arizona criteria (mg/L) (mean/90th percentile/
CFR 131.31 (mg/L) (mean/ max)
90th percentile) ------------------------------------------------
Water body segment ---------------------------
Total Total Total phosphorus Total nitrogen
phosphates nitrates
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1. Colorado River from Utah border 0.04/0.06 4/7 nnc.................. nnc
to Willow Beach (main stem).
2. Colorado River from Willow Beach 0.06/0.10 5/- nnc.................. nnc
to Parker Dam (main stem).
3. Colorado River from Parker Dam to 0.08/0.12 5/7 nnc.................. nnc
Imperial Dam (main stem).
[[Page 62743]]
4. Colorado River from Imperial Dam 0.10/0.10 5/7 nnc/0.33/nnc......... nnc/2.50/nnc
to Morelos Dam (main stem).
5. Gila River from New Mexico border 0.50/0.80 -/- nnc.................. NA
to San Carlos Reservoir (excluding
San Carlos Reservoir.
6. Gila River from San Carlos 0.30/.050 -/- nnc.................. NA
Reservoir to Ashurst Hayden Dam
(including San Carlos Reservoir.
7. San Pedro River.................. 0.30/0.50 -/- nnc.................. NA
8. Verde River (except Granite 0.20/0.30 -/- 0.10/0.30/1.00....... NA
Creek).
9. Salt River above Roosevelt Lake.. 0.20/0.30 -/- 0.12/0.30/1.00....... NA
10. Santa Cruz River from 0.50/0.80 -/- nnc.................. NA
international boundary near Nogales
to Sahuarita.
11. Little Colorado River above 0.30/0.50 -/- 0.20/0.30/0.75....... NA
Lyman Reservoir.
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- No Federal numeric nutrient criteria were promulgated.
nnc The State's narrative nutrient water quality criteria apply in conjunction with the State's implementation
procedures.
NA EPA has not included the State's nutrient criteria for total nitrogen for these waters because these waters
were not subject to the 1976 Federal numeric nutrient water quality criteria for total nitrates.
D. What Current Efforts Are Underway To Further Protect Waters From
Excessive Nutrients?
In the time since EPA approved Arizona's nutrient criteria, EPA has
developed waterbody specific technical guidance manuals for deriving
numeric nutrient criteria as well as waterbody and ecoregion specific
criteria recommendations. For freshwaters, the guidance recommends that
States address total nitrogen, total phosphorous, chlorophyll-a, and
turbidity when developing nutrient criteria to protect designated uses.
EPA has also published recommended ecoregion-specific nutrient water
quality criteria for States to use as starting points in adopting water
quality standards (see 66 FR 1671, January 9, 2001). This information
may be found at http://www.epa.gov/ost/standards/nutrient.html. EPA's
criteria documents include nutrient water quality criteria
recommendations for rivers and streams and for lakes and reservoirs
within Arizona. When EPA determined that Arizona's nutrient criteria
were consistent with the CWA and protective of designated uses, EPA did
not have numeric nutrient criteria recommendations. EPA is currently
withdrawing the Federal nutrient criteria applicable to eleven waters
in the State of Arizona because EPA determined that Arizona's nutrient
criteria are as protective as the federally promulgated nutrient
criteria for those waters. Arizona is currently working on a nutrient
criteria plan to develop and adopt numeric nutrient criteria for all of
its waters based on EPA's most current guidance. EPA will work with
Arizona to revise the State's water quality standards where recent
information shows new or revised nutrient criteria are necessary to
better protect its designated uses.
III. Response to Comments
EPA received comments from the Environmental Management Division of
the International Boundary and Water Commission United States and
Mexico, Office of the Commissioner (United States Section) and from the
Water Quality Division, Arizona Department of Environmental Quality,
both supporting EPA's action to withdraw Federal nutrient criteria.
These comments have been included in the Administrative Record.
EPA also received a comment from Pima County Wastewater Management
Department that supports the withdrawal of the Federal numeric
criteria, but opposes EPA's proposal to also withdraw the Federal
narrative criteria in Arizona until that time when the State completes
its planned narrative nutrient implementation guideline stakeholder and
rulemaking process. EPA appreciates the commenter's support for
withdrawing the Federal numeric criteria, but disagrees that it should
maintain the Federal narrative criteria as requested by the commenter.
As noted earlier, EPA approved Arizona's Implementation Guidelines in
1996. This approval was based on EPA's determination that these
guidelines satisfy the requirements of EPA's regulations that States
provide information addressing the implementation of State narrative
criteria. EPA recognizes that ADEQ is in the process of developing
revised, eco-region specific implementation procedures for the
narrative nutrients standard. This laudable effort, however, does not
change the fact that Arizona presently has nutrient implementation
procedures that meet the requirements of the Act. Therefore, EPA
believes that there is no reason for it not to withdraw both numeric
and narrative nutrient criteria at the present time.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
This action withdraws Federal requirements applicable to Arizona
and imposes no regulatory requirements or costs on any person or
entity, does not interfere with the action or planned action of another
agency, and does not have any budgetary impacts or raise novel legal or
policy issues. Thus, it has been determined that this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 (58 FR 51735, October 4, 1993) and is therefore not subject to
the Office of Management and Budget (OMB) review.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 because it is
administratively withdrawing Federal
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requirements that no longer need to apply to Arizona.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, generally requires an agency to prepare a regulatory flexibility
analysis of a rule that is 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
significant economic impact on a substantial number of small entities.
This rule imposes no regulatory requirements or costs on any small
entity. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 104-
4) establishes requirements for Federal agencies to assess the effects
of their regulatory actions on State, Tribal, and local governments and
the private sector. Today's rule contains no Federal mandates (under
the regulatory provisions of Title II of the UMRA) for State, Tribal,
or local governments or the private sector because it imposes no
enforceable duty on any of these entities. Thus, today's rule is not
subject to the requirements of UMRA sections 202 and 205 for a written
statement and small government agency plan. Similarly, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and is
therefore not subject to UMRA section 203.
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
State and local government officials have an opportunity to provide
input in the development of regulatory policies 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 governments. This rule
imposes no regulatory requirements or costs on any State or local
governments; therefore, it does not have federalism implications under
Executive Order 13132.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Again, this rule imposes no regulatory requirements or costs on any
Tribal government. It does not have substantial direct effects on
Tribal governments, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175, entitled ``Consultation and Coordination with
Indian Tribal Governments'' (65 FR 67249, November 6, 2000).
G. Executive Order 13045--Protection of Children From Environmental
Health and Safety Risks
This rule is not subject to E.O. 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant and
EPA has no reason to believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply
because this rule does not involve technical standards.
J. 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) and will be effective on December 8, 2003.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians-lands, Intergovernmental
Relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: October 30, 2003.
Marianne Lamont Horinko,
Acting Administrator.
0
For the reasons set out in the preamble, 40 CFR part 131 is amended as
follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 131.31 [Amended]
0
2. Section 131.31 is amended by removing and reserving paragraph (a).
[FR Doc. 03-27948 Filed 11-5-03; 8:45 am]
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