[Federal Register Volume 75, Number 146 (Friday, July 30, 2010)]
[Proposed Rules]
[Pages 44930-44932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18557]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2010-0606; FRL-9182-1]
Stakeholder Input; Revisions to Water Quality Standards
Regulation
AGENCY: Environmental Protection Agency.
ACTION: Listening sessions.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing its
plans to initiate national rulemaking to make a limited set of targeted
changes to EPA's water quality standards regulation. EPA expects to
publish such proposed rule changes in the Federal Register in Summer
2011. EPA's intent is to improve the regulation's effectiveness in
helping to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. The purpose of this notice is to
announce EPA's intent to hold two informal public ``listening
sessions'' in August 2010. The sessions will allow EPA to inform the
public about the rulemaking, and will offer an opportunity for the
public to express views on the general direction of the rulemaking,
including the six specific elements of the rulemaking.
DATES: The two public listening sessions will be held as audio
teleconferences on August 24 and 26, 2010, from 1 to 2:30 p.m. EDT.
FOR FURTHER INFORMATION CONTACT: Thomas J. Gardner, EPA Headquarters,
Office of Water, Office of Science and Technology, at 202-566-0386 or
e-mail: [email protected].
In order to provide an adequate number of telephone lines for those
wishing to attend EPA's sessions, interested individuals should
register in advance following instructions on the Internet at http://www.epa.gov/waterscience/standards/rules/wqs. Although you may register
at any time prior to the session of your choice, EPA prefers that you
register at least three days in advance.
The agenda and resource materials will be identical for the two
sessions. You do not need to attend both sessions.
If you do not have Internet access, please contact the person named
in the FOR FURTHER INFORMATION CONTACT section above.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Public Listening Sessions
EPA will hold two informal public listening sessions via audio
teleconference in August 2010 to inform the public about the
rulemaking, and to hear views from the public regarding possible
changes to EPA's water quality standards regulation at 40 CFR part 131
that are under consideration. The sessions will provide a review of
EPA's current water quality standards regulation and a summary of the
clarifications that EPA is considering. Clarifying questions and brief
oral
[[Page 44931]]
comments (three minutes or less) will be accepted at the sessions, as
time permits.
B. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2010-0606. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although
all documents in the docket are listed in an index, some information is
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. Publicly available docket materials are
available in hard copy at the EPA Docket Center Public Reading Room,
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426. The docket can also accessed electronically at EPA Dockets at
http://www.epa.gov/edocket/. Once in the system, select ``search'',
then key in the appropriate docket identification number.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
Electronic versions of this notice and other water quality
standards documents are available at EPA's water quality standards Web
site http://www.epa.gov/waterscience/standards.
II. Background
Statutory and Regulatory Overview
Water quality standards serve as the foundation for the water
quality-based approach to pollution control and are a fundamental
component of watershed management. Water quality standards are
provisions of state, tribal, or federal law that define the water
quality goals of a water body, or segment thereof, by designating the
use or uses to be made of the water body; establishing criteria based
on sound science that are protective of applicable uses; and protecting
water quality through antidegradation requirements. See 40 CFR part
131. States and tribes adopt water quality standards to protect public
health or welfare, enhance the quality of water, and serve the purposes
of the Act. See Clean Water Act (CWA or Act) 303(c). ``Serve the
purposes of the Act'' (as defined in sections 101(a)(2), and 303(c) of
the CWA) means that water quality standards should: (1) Include
provisions for restoring and maintaining chemical, physical, and
biological integrity of state and tribal waters; (2) provide, wherever
attainable, water quality for the protection and propagation of fish,
shellfish, and wildlife and recreation in and on the water; and (3)
consider the use and value of state and tribal waters for public water
supplies, propagation of fish and wildlife, recreation, agricultural
and industrial purposes, and navigation. See 40 CFR 131.2.
The statutory basis for water quality standards and EPA's
regulation is section 303(c) of the CWA. Section 303(c)(2) of the CWA
directs states to consider the use and value of waters for specific
purposes, including public water supply, propagation of fish and
wildlife, recreational purposes, agricultural and industrial water
supplies and other purposes including navigation. Section 303(c)(2)
also requires that standards protect public health or welfare, enhance
the quality of water and serve the purposes of the Act. CWA section
303(c)(1) requires that states review their standards at least once
every three years. CWA section 303(c)(3) establishes timelines for EPA
review and approval or disapproval of new or revised standards, and CWA
section 303(c)(4) specifies requirements regarding promulgation of
federal water quality standards in cases where a new or revised
standard is found by EPA not to be consistent with the CWA or in any
case where the Administrator determines that a new or revised standard
is necessary to meet the requirements of the CWA.
EPA's Water Quality Standards regulation is at 40 CFR part 131. The
regulation implements the requirements of section 303(c) of the CWA.
Fundamentally, the regulation: (1) Defines when and how designated uses
may be revised; (2) requires criteria to protect those uses and be
based on sound science; (3) requires EPA and states to prevent the
degradation of water quality, except under certain circumstances; (4)
requires states/tribes to review their water quality standards at least
every three years and engage the public in any revisions to water
quality standards; and (5) specifies roles of states and EPA and
provides administrative procedures for EPA's review and approval or
disapproval of any new or revised state water quality standards.
III. Changes to EPA's Water Quality Standards Regulation Under
Consideration
EPA is planning to propose a limited set of targeted changes to its
water quality standards regulation to improve its effectiveness in
helping restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. EPA expects to publish a proposed
rule in the Federal Register in Summer 2011.
The core requirements of the current regulation have been in place
since 1983. These requirements have provided a solid foundation for
water quality-based controls, including CWA section 303(d) assessments,
listings, and Total Maximum Daily Loads (TMDLs), as well as discharge
permits issued under the National Pollutant Discharge Elimination
System (NPDES). The intent of the changes EPA is considering is to add
or modify a limited number of provisions to address the specific areas
described below.
The following is a brief summary of the clarifications to the water
quality standards regulation that EPA is considering.
A. Antidegradation Implementation Methods
The current regulation specifies that states and authorized tribes
must identify the methods to implement the antidegradation policies
that they are required to adopt in their water quality standards. 40
CFR 131.12(a). The regulation does not specify what the implementation
methods must include, but only states that such methods must be, as the
policies must be, ``consistent with'' 40 CFR 131.12(a). EPA is
considering modifying the regulation to specify that antidegradation
implementation methods must meet specific minimum requirements.
Specifically, EPA is considering adding a subparagraph (b) to 40 CFR
131.12 (which currently has a subparagraph (a) but not (b)) that would
specify minimum elements to be included in state or authorized tribe
antidegradation implementation methods. EPA is also considering
requiring that antidegradation implementation methods be adopted into
state and tribal water quality standards, and thus be subject to EPA
review and approval under CWA section 303(c), rather than having them
simply be identified. In the listening sessions, EPA will invite views
from the public on these potential changes, including what the minimum
requirements should include.
[[Page 44932]]
B. Administrator's ``Determination''
The CWA provides that the Administrator may determine that a
revised or new standard is necessary to meet the requirements of the
CWA. Section 303(c)(4)(B). If such a determination is made, EPA must
promptly propose a revised or new federal standard to augment or
replace the state's or authorized tribe's water quality standards, and
promulgate the proposed standard within 90 days of proposal. See CWA
303(c)(4). Since this provision was enacted by Congress in 1972, there
have been recurring instances of confusion or misunderstanding about
what constitutes such a determination. EPA is considering clarifying in
the water quality standards regulation that an Administrator's
determination must be signed by the Administrator or his/her duly
authorized designee, and must include a statement that the document
constitutes a determination under section 303(c)(4)(B) of the CWA. In
the listening sessions, EPA will invite views from the public on these
changes.
C. Designated Uses
Section 101(a)(2) of the Act establishes a goal, wherever
attainable, of water quality that provides for the protection and
propagation of fish, shellfish, and wildlife and recreation in and on
the water. The water quality standards regulation requires that the
state or authorized tribe perform a use attainability analysis (that
is, a structured scientific assessment of factors affecting attainment
of designated uses) and submit this assessment to EPA in order to
remove certain designated uses, including any designated use that is
specified as a national goal in section 101(a)(2) of the CWA. See 40
CFR 131.10. The regulation does not, however, specify which uses, if
any, must be adopted to replace the use that is being removed. EPA is
considering clarifying that designated uses reflecting the CWA
101(a)(2) goals of the CWA are presumed attainable unless otherwise
demonstrated and that states and authorized tribes must designate such
uses unless they have conducted a use attainability analysis to support
a lesser designated use and EPA has approved that action. EPA is also
considering clarifying that the highest attainable use(s) closest to
the section 101(a)(2) goal must be adopted if a CWA 101(a)(2) goal use
is unattainable. In the listening sessions, EPA will invite views from
the public on these changes.
D. Variances
The current regulation allows states and authorized tribes to adopt
variances as general policies for applying and implementing their water
quality standards. See 40 CFR 131.13. The regulation does not provide a
definition of, a description of, or any requirements for the use of
variances. EPA is considering establishing regulatory requirements for
variances to ensure proper use of variances and reduce the possibility
of inappropriate use. In the listening sessions, EPA will invite views
from the public on these clarifications, and what the regulatory
requirements should include.
E. Triennial Reviews
The CWA and the current water quality standards regulation require
states and authorized tribes to review their water quality standards at
least once every three years, and modify standards or adopt new
standards as appropriate. CWA 303(c); 40 CFR 131.20. EPA is considering
revising the regulatory requirements to clarify that states and
authorized tribes must solicit and consider public comments in
determining the scope of each such triennial review. EPA is also
considering establishing a new triennial review requirement that states
and authorized tribes must evaluate whether their existing water
quality criteria continue to be protective of designated uses, taking
into consideration any new information, including EPA's most recent
national recommended CWA 304(a) water quality criteria, that has become
available since the state or tribal criteria were adopted or last
revised. In the listening sessions, EPA will invite views from the
public on these changes.
F. Updates To Reflect Court Decisions
EPA is considering making three clarifications to the water quality
standards regulation to codify the results of court decisions over the
years.
First, EPA is considering revising the definition of ``water
quality standards'' in 40 CFR 131.3 to reflect the results of and EPA's
actions on remand from Florida Public Interest Research Group Citizen
Lobby, Inc., Save our Suwannee, Inc., et al. v. EPA, et al., 386 F.3d
1070 (11th Cir. 2004) concerning Florida's Impaired Water Rule (IWR).
That court decision and EPA's response to it more clearly define which
of state or tribal provisions constitute water quality standards that
need to be submitted to EPA for review and approval. EPA is considering
revising 40 CFR part 131 to reflect these developments.
Second, EPA is considering specifying that authorizing provisions
for compliance schedules for implementing water quality-based effluent
limits in NPDES permits must be adopted as part of a state's or tribe's
water quality standards, and therefore be submitted to EPA for review
and approval. See In the Matter of Star-Kist Caribe, Inc., 1990 WL
324290 (EPA), 3 EAD 172 (April 16, 1990).
Third, EPA is considering clarifying that states and authorized
tribes must submit to EPA records of public participation that has
occurred in reviewing and revising state or tribal water quality
standards. These records would include public comments, and the state's
or tribe's responses to the comments. This change would reflect the
results of City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir.
1996).
In the listening sessions, EPA will invite views from the public on
these changes.
IV. Other EPA Outreach
EPA expects to conduct outreach with additional stakeholders as
well as local, state, and tribal governments before proposing any
revisions to the water quality standards regulation. This outreach
includes discussions and consultation with federally-recognized Indian
tribes, consistent with Executive Order 13175 (Tribal Consultation);
consultation with representatives of elected officials of state and
local government, consistent with Executive Order 13132 (Federalism);
and consultation with state water quality program officials as co-
regulators. EPA will continue outreach efforts prior to finalizing any
revisions.
Dated: July 22, 2010.
Ephraim S. King,
Director, Office of Science and Technology.
[FR Doc. 2010-18557 Filed 7-29-10; 8:45 am]
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