[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14536]


[[Page Unknown]]

[Federal Register: June 16, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4999-7]

 

Notice of a Final List of Water Quality Limited Waterbodies in 
the State of Minnesota

AGENCY: Environmental Protection Agency.

ACTION: Notice of a final Clean Water Act section 303(d) list for the 
State of Minnesota.

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SUMMARY: The purpose of this notice is to announce the United States 
Environmental Protection Agency's (USEPA) final decision with respect 
to the list required of the State of Minnesota, under section 303(d) of 
the Clean Water Act (CWA). On December 8, 1993, the USEPA published (58 
FR 64584) a proposed list of waterbodies, subsequent to its 
disapproval, on August 9, 1993, of portions of the list prepared by the 
State of Minnesota. A total of 72 waterbodies have been identified as 
appropriate waterbodies for the development of total maximum daily 
loads (TMDLs), pursuant to section 303(d), 40 CFR part 130, and USEPA 
guidance, as resources permit. An additional number of waterbodies have 
been identified, for which implementation of a TMDL will be dependent 
on a variety of events or actions outside the control of the State of 
Minnesota. Copies of the lists may be obtained at the address provided 
in the addresses section.

ADDRESSES: Persons wishing to obtain a copy of the lists may do so by 
contacting Mr. Robert F. Pepin, U.S. Environmental Protection Agency, 
Region 5, Water Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604, telephone (312) 886-1505; or Mr. Greg Gross, Division of Water 
Quality, Minnesota Pollution Control Agency, 520 Lafayette Road, St. 
Paul, Minnesota 55155, telephone (612) 296-7213.

FOR FURTHER INFORMATION CONTACT: Mr. Robert F. Pepin or Mr. Greg Gross 
at the above addresses or telephone numbers.

SUPPLEMENTARY INFORMATION: Section 303(d) of the CWA requires that the 
States identify lists of waterbodies for which TMDL development is 
appropriate. Further, section 303(d) requires that the lists developed 
by the States be submitted to the USEPA for review and approval or 
disapproval. To the extent that the USEPA disapproves a State 
submittal, section 303(d) of the CWA requires that the USEPA develop 
and publish the list. The USEPA must also assure that public 
participation in the formulation of a list of waterbodies is consistent 
with 40 CFR part 25, and may publicly notice a State submittal for that 
purpose as well.
    The State of Minnesota had prepared several lists for the USEPA 
review, and had submitted and subsequently withdrawn several of these. 
On July 6, 1993, the USEPA received from Minnesota, a proposed list, 
which contained some, but not all of the waterbodies which the USEPA 
believed should be included on the list applicable to the State of 
Minnesota. As a result, the USEPA issued, on August 9, 1993, a partial 
approval of the list submitted by the State, approving the list to the 
extent that it did include waterbodies which were appropriately 
included on the list, but disapproving the submission in that it did 
not include all waterbodies which would be subject to the requirements 
of section 303(d).
    Subsequently, USEPA developed a list of additional waterbodies 
which it believed were subject to the requirements of section 303(d), 
and published a notice to that effect on December 8, 1993 (58 FR 
64584). The USEPA received written comments from four commenters, 
including the Minnesota Pollution Control Agency (MPCA). These comments 
are available for public inspection at the address listed above.

(A) Responses to Comments

    In making its final determination, the USEPA has carefully 
considered all comments received, and has revised its lists 
accordingly. In particular, changes have been made based upon the 
following.
    (1) The MPCA commented that 23 stream segments were not identified 
on the proposed list, and should be included.
    In alternate years, the State of Minnesota, pursuant to section 
305(b) of the CWA, provides a report to Congress, on the health of 
waters within the State. In its 1992 report, Minnesota had identified 
the 23 stream segments in question, as impaired, however, the USEPA had 
not included these segments on its proposed list, believing the data to 
be old and somewhat unreliable. Upon further review, however, it is 
apparent that these segments are contiguous with other waterbodies 
included upon the USEPA's proposed list, and that these other 
waterbodies are scheduled for TMDL development within the next few 
years. As MPCA intends to develop these TMDLs for the whole waterbody, 
the MPCA believes that the 23 segments the USEPA had originally 
proposed to exclude should also be listed. The USEPA agrees.
    (2) The MPCA commented that 65 segments that were identified by the 
USEPA in the proposed list should not be included because the data used 
to support listing does not reflect current conditions.
    The information provided by the commenter indicates that of the 65 
segments, remedial actions have been taken on 51 segments. In addition, 
exceedences of water quality standards were infrequent for five of the 
65 segments, and did not support a conclusion that the waterbodies were 
impaired. Finally, the impairment determination for nine segments was 
based on data that were typically five to 10 years of age, and was not 
thought to be indicative of current conditions. The USEPA agrees that 
these waterbodies should not be listed pursuant to section 303(d).
    (3) The MPCA commented that nine waterbodies that were identified 
in the proposed list should not be listed because the stated impairment 
is due to ubiquitous metals, for which there is no evidence, based upon 
biological sampling, that designated uses are impaired.
    For each of these waterbodies, the MPCA provided documentation that 
the impairments described were based upon one or more of the following: 
Rare excursions of the water quality standards; ambient levels of the 
various constituents higher than expected for the ecoregion, but no 
water quality standards exceedences measured; or misinterpretation by 
the USEPA of the data provided in the 305(b) report. The USEPA agrees 
with the MPCA that cause does not exist for listing these waterbodies.
    (4) The MPCA commented that approximately 245 segments of 
waterbodies which were included on the proposed USEPA list, should be 
excluded for a variety of reasons.
    All of the identified segments are segments which were listed 
because of the presence of a fish consumption advisory for mercury or 
polychlorinated biphenyls (PCBs). The MPCA commented that the sole, or 
primary source of mercury or PCBs to these waterbodies is airborne 
deposition, and that where control of these sources is outside the 
State, the State is unable to develop a TMDL. These segments, 
therefore, are not appropriate candidates for TMDL development at this 
time. The USEPA agrees that technology based standards imposed under 
the Clean Air Act which affect sources external to the State of 
Minnesota may obviate the future need for TMDL development in these 
waterbodies. A separate list of these waterbody segments can be 
obtained by contacting the USEPA at the address provided above.
    It is important to note that not all waterbodies for which fish 
consumption advisories exist fall into the category discussed above. 
There are certain waterbodies with fish consumption advisories, and for 
which TMDLs have been, or can be successfully developed at this time. 
These are not included in the 245 waterbodies on which the MPCA 
provided comments.
    (5) Two other commenters believed that the proposed list is 
inadequate because it fails to identify all water quality limited 
segments within the State of Minnesota. Where the State has failed to 
do so, one of the commenters stated there is a mandatory duty to 
identify all water quality-limited segments, and include them on the 
list of waterbodies for which TMDL development is appropriate.
    The USEPA interprets section 303(d) to require the identification 
of water quality-limited waterbodies for which TMDLs are appropriate. 
Such identification is to be based on existing and readily available 
data (40 CFR 130.7(b)(5)); consequently, there are no requirements 
within the Statute for additional monitoring or analysis. Since 40 CFR 
130.7(d)(1) requires the biennial submission of revised section 303(d) 
lists to the USEPA for approval, this provision recognizes, that 
information will become available in the future, which can be used to 
revise and update the decisions made under section 303(d). This 
provision supports the USEPA's position that current listings should be 
based on currently available information. The submission every 2 years 
of a section 303(d) list addresses this issue by allowing changes to 
the lists to reflect additional identification of impaired waterbodies, 
and allows for removal of waterbodies once standards are attained or 
TMDLs developed.
    Pursuant to section 305(b) of the CWA, States must prepare, on a 
biennial basis, a report to Congress which assesses the status of State 
waters. 40 CFR 130.7(b)(5) explicitly states that the section 305(b) 
report should be considered when developing the section 303(d) list. In 
preparation of the December 8, 1993, proposed list, Minnesota's 1992 
305(b) report was extensively used. All waterbodies listed as impaired 
in Appendix 1 of that report were considered for listing. For reasons 
provided in the December 8, 1992, FR notice, specific comments received 
in response to that notice, and elsewhere in this notice some 
waterbodies that were listed as impaired in the Fiscal Year 1992 
section 305(b) report were not included in today's list.
    (6) One commenter stated that even if the only available data are 
older than five years, if those data indicate water quality 
impairments, then the subject waterbodies should be listed on the 
section 303(d) list.
    Throughout its regulations and guidance the USEPA has consistently 
stated that all information should be used to develop a section 303(d) 
list. In using available information, however, it is imperative to 
consider its accuracy in order to assure that technically defensible 
determinations can be developed. The USEPA believes that data that are 
older than five years, or impairment assessments based on a subjective 
analysis, carry a large degree of uncertainty as to whether the 
impairment is still valid. As such information of this kind must be 
considered in light of all available information and cannot represent a 
prima facie basis for listing.
    (7) One commenter stated that the USEPA must actively solicit all 
interested parties for information on which to develop a section 303(d) 
list.
    Regulations governing the solicitation of public comment may be 
found at 40 CFR part 25. The USEPA believes that the publication of the 
proposed list in the December 8, 1993, FR notice fulfilled those 
requirements, and served as adequate solicitation of comment of all 
interested parties. In response to that publication the USEPA received 
four comment letters, one by a State agency and three by public 
interest groups. These comments have been thoroughly considered in the 
development of the final list.
    (8) One commenter stated that the proposed list does not meet the 
requirements of section 303(d) because it does not contain specific, 
calculated TMDLs for each waterbody listed.
    Section 303(d)(1)(A) requires the development of a list of 
waterbodies for which technology-based effluent limits are not 
stringent enough to achieve water quality standards. Section 
303(d)(1)(C) requires the development of TMDLs for the waters listed 
pursuant to section 303(d)(1)(A). The USEPA has interpreted the Act to 
require the development of the section 303(d) list prior to actually 
establishing TMDLs. The USEPA believes that to delay listing until the 
TMDLs are all completed would either lead to deceptively short lists of 
waterbodies, or would delay the process indefinitely. Because TMDL 
development can be a complex activity, involving many years of effort 
particularly in cases where specific stream conditions must be 
analyzed, or model development and calibration must be achieved, only a 
few TMDLs can be developed at any particular time. Even so, it is also 
recognized that remedial actions can take place before a TMDL is 
developed, therefore the Agency believes that the listing process 
should go forward as the initial step in order to encourage action even 
though actual TMDL development may take place later. It is reasonable, 
therefore, to conclude that development of individual TMDLs must follow 
list development.
    (9) One commenter stated that the proposed list does not contain 
any schedule for TMDL development for the next two years, and that the 
criteria by which the USEPA prioritized waters on the proposed list 
should focus on the protection human health.
    The December 8, 1993, Federal Register notice announced as being 
available for public review and comment a proposed section 303(d) list 
for Minnesota consisting of 447 water quality-limited segments. The 
notice further provided that the priority for TMDL development reflects 
that contained in the September 16, 1993, section 303(d) list submitted 
by the Minnesota Pollution Control Agency. In that submittal, the TMDLs 
identified for development through April 1994 were the Minnesota River 
and the Redwood River. These waterbodies continue to be listed as high 
priority for TMDL development. Because the prioritization of TMDLs as 
well as the resources and personnel to develop them are largely under 
the control of the State, the USEPA believes it is appropriate to defer 
to this State prioritization. It should be noted that these priorities 
are subject to annual review by the USEPA and the State in the annual 
program planning process under 40 CFR part 130 and as a result of the 
biennial updates of the 305(b) lists required under 40 CFR part 131 and 
section 305(b) of the CWA.
    (10) One commenter stated that the Mississippi River from the 
Minneapolis/St. Paul metropolitan area downstream to the Iowa border 
should be listed as high priority.
    The USEPA agrees that this waterbody is an important resource. In 
compliance with requirements of an National Pollutant Discharge 
Elimination System permit issued to the Metropolitan Waste Control 
Commission (MWCC), studies of phosphorus, the identified pollutant of 
concern, are being conducted by both the MWCC and the Minnesota 
Pollution Control Agency on the waterbody to define better the sources 
of the impairments and to ascertain needed remedial actions. Current 
information suggests that much of the loading of phosphorus is 
originating in the Minnesota River basin, which is high priority for 
TMDL development. It is anticipated that remedial actions in the 
Minnesota River basin will have significant positive impact on 
magnitude of impairments in the Mississippi River. It is anticipated 
that upon the completion of the studies and implementation of 
additional controls required through the NPDES permit and the results 
of the TMDL being developed for the Minnesota River, downstream impacts 
on the Mississippi River will be reduced such that this portion of the 
River does not meet the requirements for listing under section 303(d). 
Therefore, this waterbody continues to be listed as low priority on the 
section 303(d) list.
    (11) One commenter questioned why only two waterbodies were listed 
on the section 303(d) list.
    In the December 8, 1993, FR notice, USEPA proposed a list of 447 
waterbody segments. This was in addition to the two waterbodies which 
the State of Minnesota has identified as appropriate for TMDL 
development. While the USEPA agrees with the State of Minnesota, that 
those two waterbodies warrant listing pursuant to 303(d), the USEPA 
also believes, that additional waterbodies should be listed, and for 
that reason has proceeded with today's notice.
    (12) One commenter recommended that the following waterbodies be 
listed on the section 303(d) list as high priority for TMDL 
development.

--All Minnesota Outstanding Resource Value Waters
--All Minnesota designated trout streams and trout lakes
--All Minnesota designated canoe trails
--All Federal or Minnesota designated wild, scenic, and recreational 
rivers
--All waterbodies within any National Wildlife Refuge
--The entire length of the Mississippi River (presumed to include 
sections both upstream and downstream of the Minneapolis/St. Paul 
metropolitan area
--Lake Superior

    As stated above, the resources and personnel necessary to develop 
TMDLs are largely under the control of the State. In addition, the 
State's proximity to its public allows it to evaluate priorities in 
light of the public need more readily than USEPA. Consequently the 
USEPA believes it is appropriate to defer to the State in the matter of 
prioritization of waterbodies for TMDL development.

(B) Revisions to the Proposed Notice

    As a result of the public comments received and continuing review 
of the proposed notice by the USEPA, the following changes have been 
made to the final identification of the section 303(d) water quality-
limited segments for the State of Minnesota:
    (1) The final list of waterbodies for which TMDL development would 
be appropriate has been revised to include the 23 additional steam 
segments which the State has requested be included on the list, due to 
proximity to, and influence upon, other waterbodies for which TMDLs are 
being developed.
    (2) Waterbodies for which fish consumption advisories exist, and 
for which remedial measures lie outside the control of the State of 
Minnesota have been separately identified.
    (3) The final list of waterbodies for which TMDL development is 
appropriate excludes 65 stream segments included in the proposed list, 
for which the State has provided documentation that the information 
leading to the USEPA's decision to include these segments on the 
proposed list was not based on the most current information, and the 
more current information reveals that TMDLs are no longer appropriate.
    (4) The final list excludes nine stream segments identified in the 
State's comments which were described as meeting the designated uses, 
since the exceedences of numeric water quality criteria noted by the 
USEPA as the basis for our proposal to include these segments on the 
303(d) list were due to naturally occurring background concentrations.

(C) Final Notice

    This notice is being issued pursuant to section 303(d)(2) of the 
CWA. Under this section, the USEPA is required to publish an 
identification of water quality-limited segments if a state submission 
is disapproved. The disapproval of the Minnesota submission occurred on 
August 9, 1993.
    This notice identifies 72 water quality limited waterbodies for 
which TMDL development is appropriate and further identifies three 
waterbodies for which TMDL development is scheduled to be initiated 
over the next two years. This notice further identifies 245 waterbodies 
for which TMDL development is not feasible at this time. This 
constitutes USEPA's final determination.

    Dated: June 2, 1994.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 94-14536 Filed 6-15-94; 8:45 am]
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