[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Notices]
[Pages 45504-45505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22895]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6152-2]


Section 319 Federal Consistency Guidance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) requests public 
comment on proposed guidance on implementation of the Federal 
consistency provisions established by sections 319(b)(2)(F) and (k) of 
the Clean Water Act (CWA) (33 U.S.C. 1329(b)(2)(F) and (k)). These 
Federal consistency provisions authorize each State to review Federal 
activities for consistency with the State nonpoint source management 
program. If the State determines that an application or project is not 
consistent with the goals and objectives of its nonpoint source 
management program and makes its concerns known to the responsible 
Federal agency, the Federal agency must make efforts to accommodate the 
State's concerns or explain its decision not to in accordance with 
Executive Order 12372.
    The proposed Federal consistency guidance describes (a) the States' 
role in identifying Federal programs for consistency review, (b) the 
Federal obligation to accommodate the concerns of the States in 
accordance with Executive Order 12372, (c) the criteria and methods for 
reviewing Federal assistance programs and development projects for 
consistency with a State's nonpoint source management program, and (d) 
EPA's role in assisting States and Federal agencies with resolution of 
any conflicts which may arise. EPA has developed the draft guidance in 
close consultation with State and Federal agencies.
    The Federal consistency provision provides a tool to promote 
communication and cooperation between State and Federal agencies for 
achievement of shared water quality goals. The purpose of the guidance 
is to support closer coordination among State and Federal agencies to 
improve implementation of nonpoint source management programs and more 
effectively protect water quality.

DATES: Written comment should be addressed to the person listed 
directly below by November 24, 1998.

ADDRESSES: Comments should be sent to Robert Goo, Assessment and 
Watershed Protection Division (4503F), U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460, telephone (202) 260-
7025 or by E-mail to [email protected].
    This document is available on the Internet at www.epa.gov/owow/NPS 
or contact Robert Goo at (202) 260-7025 to request a copy.

FOR FURTHER INFORMATION CONTACT: Robert Goo at (202) 260-7025.

SUPPLEMENTARY INFORMATION:

I. Background

    Nonpoint source pollution is water pollution caused by rainfall or 
snowmelt moving over and through the ground and carrying natural and 
human-made pollutants into lakes, rivers, streams, wetlands, estuaries, 
coastal waters, and ground water. Atmospheric deposition and hydrologic 
modification are also sources of nonpoint pollution.
    Across the United States, States have reported that nonpoint source 
pollution is the most pervasive cause of water quality problems. See 
the National Water Quality Inventory: 1996 Report to Congress, 
available from EPA, at NCEPI, 11029 Kenwood Road, Bldg. 5, Cincinnati, 
OH, 45242. For further information, visit EPA's Office of Water 305(b) 
website at http://www.epa.gov/305b. Other information corroborates this 
finding. See the Index of Watershed Indicators, available online at 
http://www.epa.gov/surf. EPA and the States are accelerating their 
efforts to prevent and reduce nonpoint source pollution. See the Clean 
Water Action Plan at http://www.epa.gov/cleanwater.
    Congress enacted section 319 of the Clean Water Act in 1987, 
establishing a national program to control nonpoint sources of water 
pollution. Under section 319, States address nonpoint pollution by 
developing nonpoint source assessment reports that identify nonpoint 
source pollution problems and the nonpoint sources responsible for the 
water quality problems. States then develop management programs to 
control nonpoint source pollution. All States now have EPA-approved 
nonpoint source assessment reports and management programs and are 
implementing their management programs.
    Federal agencies have key roles to play in helping to control 
nonpoint source pollution. In recognition of this, Congress included in 
section 319 a provision to promote the consistency of Federal 
assistance programs and development projects with State nonpoint source 
management programs. Section 319 provides for State review of Federal 
assistance applications and development projects to determine their 
consistency with the requirements, goals, policies and other provisions 
of the State's nonpoint source management program. Use of the Federal 
consistency provision will provide States and Federal agencies the 
opportunity to improve nonpoint source programs through mutual 
cooperation and coordination of activities.
    The guidance that EPA is now proposing to publish on implementation 
of the Federal consistency provisions is intended to help States and 
EPA follow through on mutual commitments made between States and EPA to 
take steps to strengthen the linkage between State nonpoint source 
programs and Federal programs and activities through section 319. EPA 
intends to work with States and Federal agencies to support 
implementation of the section 319 Federal consistency provision. EPA 
will conduct educational and liaison activities, provide technical 
assistance to State and Federal agencies, and, if

[[Page 45505]]

requested, facilitate State-Federal negotiations and assist with 
mediation and conflict resolution. EPA will also work with Federal 
agencies to support their pollution abatement and environmental 
protection efforts and their efforts to ensure that their programs and 
policies are compatible with the Clean Water Act, the States' water 
quality standards and program implementation goals.

II. Scope of the Proposed Guidance

    The proposed guidance will cover the following topics:
    (1) Statutory Authority: Authority for the States' nonpoint source 
Federal consistency review is found in two provisions in section 319 of 
the Clean Water Act. Section 319(b)(2)(F) directs States to list 
Federal assistance applications and development projects which they 
would like to review for consistency in their State management program. 
Section 319(k) directs Federal Agencies to ``accommodate'' the concerns 
of the State according to EO 12372.
    (2) Executive Order 12372: Executive Order 12372 specifies that: 
(a) Federal agencies must provide opportunities for State and local 
consultation on proposed Federal financial assistance and development; 
(b) Federal agencies communicate with the States according to their 
State processes and to do so as early as is ``reasonably feasible.''; 
(c) States may develop their own processes to review and coordinate 
proposed Federal financial assistance and development; and (d) Federal 
agencies must ``make efforts to accommodate State and local elected 
officials' concerns.''
    (3) Federal Assistance Programs and Development Projects: Federal 
assistance applications and development projects covered by the 
consistency provision include all programs which are listed in the 
Catalogue of Federal Domestic Assistance and may have an effect on the 
purposes and objectives of the State's nonpoint source program, 
regardless of whether or not they are subject to Executive Order 12372.
    (4) State Nonpoint Source Management Programs: For States that did 
not include Federal consistency provisions in their original nonpoint 
source management programs, EPA recommends inclusion of Federal 
consistency in subsequent nonpoint source management program upgrades. 
A modified or upgraded nonpoint source management program defines 
Federal consistency review guidelines and identifies assistance 
programs and development projects that are or may be inconsistent with 
the State's nonpoint source management program.
    (5) How to Review for Consistency: States review Federal assistance 
programs and development projects for consistency by referring to the 
specific goals, objectives, programs, and authorities contained in the 
State's nonpoint source management program. States should outline their 
Federal consistency review process criteria and guidelines as clearly 
as possible in their Management Program. These criteria and guidelines 
may be provided to the State Single Point of Contact, all State and 
local agencies with nonpoint source responsibilities or interest, all 
relevant Federal agencies, and others, as appropriate.
    (6) Use of Existing Review Mechanisms: EPA provides information on 
other existing review processes that may also prove useful for ensuring 
Federal consistency with State nonpoint source management programs.

    Dated: August 10, 1998.
J. Charles Fox,
Acting Assistant Administrator, Office of Water.
[FR Doc. 98-22895 Filed 8-25-98; 8:45 am]
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