[Federal Register Volume 65, Number 22 (Wednesday, February 2, 2000)]
[Proposed Rules]
[Pages 4919-4923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 130

[FRL-6531-7]


Revision to the Water Quality Planning and Management Regulation 
Listing Requirements

AGENCY:  Environmental Protection Agency.

ACTION:  Proposed rule.

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SUMMARY:  The Environmental Protection Agency (EPA) is proposing to 
revise the Water Quality Planning and Management regulation to remove 
the requirement that States, Territories and authorized tribes submit 
to EPA for review by April 1, 2000, lists of impaired and threatened 
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. For the 
reasons discussed below, EPA is proposing to remove the requirement 
that such lists be submitted in 2000. In this document, EPA is not 
proposing to change the existing regulatory requirement if a court 
order, consent decree, or settlement agreement dated prior to January 
1, 2000, expressly requires EPA to take action related to a State's 
year 2000 list. Also, EPA is not in this notice proposing to change the 
existing regulatory requirement that subsequent lists be submitted on 
April 1, 2002, and on April 1 of subsequent even numbered years.

DATES:  Comments on this proposal must be submitted on or before March 
3, 2000. Comments provided electronically will be considered timely if 
they are submitted by 11:59 P.M. (Eastern time) March 3, 2000.

ADDRESSES:  Send written comments on the proposed rule to the Comment 
Clerk for the Year 2000 List Rule, Water Docket (W-99-25), 
Environmental Protection Agency, 401 M Street, SW; Washington, DC 
20460. EPA requests that commenters submit any references cited in 
their comments. EPA also requests that commenters submit an original 
and three copies of their written comments and enclosures. Commenters 
that want receipt of their comments acknowledged should include a self-
addressed, stamped envelope. All comments must be postmarked or 
delivered by hand. No facsimiles (faxes) will be accepted.
    EPA will also accept comments electronically. Comments should be 
addressed to the following Internet address: [email protected]. 
Electronic comments must be submitted as an ASCII or WordPerfect file 
avoiding the use of special characters and any form on encryption. 
Electronic comments must be identified by the docket number (W-99-25), 
and may be filed online at many Federal depository Libraries. No 
confidential business information (CBI) should be sent via e-mail.
    A copy of the comments received will be available for review at 
EPA's Water Docket; Room EB-57 (East Tower Basement), 401 M Street, SW, 
Washington, DC 20460. For access to docket materials, call (202) 260-
3027 between 9 a.m. and 3:30 p.m. for an appointment. An electronic 
version of this proposal will be available via the Internet at: http://www.epa.gov/OWOW/tmdl/index.html.

FOR FURTHER INFORMATION CONTACT:  Annette Widener, U.S. EPA, Office of 
Wetlands, Oceans and Watersheds (4503F), 401 M. St., SW., Washington, 
D.C. 20640, (202) 401-4078.

SUPPLEMENTARY INFORMATION:

    Authority: Clean Water Act Section 303.

I. Entities Potentially Regulated by the Proposed Rule

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               Category                   NAIAS codes         SIC codes                       Examples of potentially regulated entities
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State, Local, Tribal Government......                N/A                N/A  States, Territories, and authorized tribes
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    This table is not intended to be exhaustive, but rather provides a 
guider 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 part 130 of title 40 of the Code of Federal 
Regulations. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the FOR 
FURTHER INFORMATION CONTACT section.

II. Summary of Proposed Rule

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 controls are not stringent 
enough to attain and maintain State, Territorial and authorized Tribal 
water quality standards. The statute requires

[[Page 4920]]

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 impaired and threatened 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 
January 2000, EPA had approved the vast majority of the lists.

B. Proposed Rule

    Today, EPA is proposing to revise the existing regulatory 
requirement that section 303(d) lists be submitted on April 1, 2000. 
Under the existing regulations, States, Territories and authorized 
tribes are required to submit the next section 303(d) list to EPA on 
April 1, 2000, and thereafter on April 1 of every even-numbered year. 
EPA is today proposing to remove only the April 1, 2000, listing 
requirement for the following reasons.
    First, comprehensive revisions to the listing regulations were 
proposed in August 1999 in the Revisions to the Water Quality Planning 
and Management Regulation rule (also known as the TMDL Rule). See 64 FR 
46012 (Aug. 23, 1999). The changes in the listing requirements proposed 
in August would, if adopted, result in significant changes to the list 
development and submission process. The proposed changes are intended 
to provide clearer direction to States, Territories and authorized 
tribes in how to develop their lists, result in a comprehensive public 
accounting of impaired and threatened waterbodies, promote consistency 
among States, Territories and authorized tribes in the listing process, 
and ensure public participation. EPA believes that these proposed 
changes will result in better section 303(d) lists than are being 
prepared under current rules, and believes that States should devote 
resources to prepare for the anticipated new listing requirements 
rather than develop year 2000 lists under the current requirements.
    Second, EPA believes that establishing TMDLs is the crucial step in 
identifying actions needed to assure that waterbodies identified as 
impaired or threatened on the section 303(d) list attain and maintain 
water quality standards. Given the anticipated changes in listing 
requirements, EPA believes that until those new requirements are 
promulgated, States, Territories and authorized tribes should focus 
their resources on establishing TMDLs for waters already listed under 
section 303(d) and submitting them to EPA for review and approval, 
rather than developing a new list in the year 2000. It is important to 
note that, since EPA is proposing to remove the requirement for only 
the April 1, 2000, deadline, States, Territories and authorized tribes 
will be required to submit section 303(d) lists on April 1, 2002, under 
the current regulatory requirements. In addition, the date established 
for submission of the first 303(d) list in the promulgated TMDL Rule 
may be in advance of the existing April 2002 submittal requirement. In 
this case, less than four years would have elapsed between 1998 and 
when the first lists required by the revised regulations are submitted 
to EPA.
    Third, since all States, Territories and authorized tribes 
submitted 1998 section 303(d) lists and EPA has approved the vast 
majority of these lists, there currently exists an extensive, complete, 
and public accounting of impaired and threatened waterbodies for the 
entire Nation. If, as EPA is proposing, there is no requirement for an 
April 1, 2000 list, EPA expects States, Territories, and authorized 
tribes to continue monitoring the quality of their waterbodies and to 
establish and implement TMDLs for the waterbodies on their 1998 section 
303(d) lists. This will ensure continued progress towards attainment 
and maintenance of water quality standards Nationwide.
    The proposed rule includes a limited exception which would require 
a State to submit a list in the year 2000 only if a court order, 
consent decree, or settlement agreement dated prior to January 1, 2000, 
expressly requires EPA to take action related to that State's year 2000 
list. In recent years, litigation under section 303(d) has resulted in 
court orders, consent decrees, and settlement agreements in a number of 
States related to EPA obligations in implementing section 303(d). In 
order to avoid unsettling a commitment embodied in a court order, 
consent decree, or settlement agreement, today's proposed rule would 
not relieve such a State of the obligation to submit a year 2000 list 
if a court order, consent decree, or settlement agreement dated prior 
to January 1, 2000, expressly requires EPA to take action related to 
that State's year 2000 list. The Act grants EPA the discretionary 
authority to interpret the requirement that States submit lists ``from 
time to time.'' In the exercise of its discretionary authority, EPA 
believes it is appropriate to continue to require a year 2000 list in 
those States in which the absence of a year 2000 list would unsettle an 
existing court order, consent decree or settlement agreement. EPA has 
reviewed the consent decrees, court orders, and settlement agreements 
in cases involving TMDL programs and believes the only order, consent 
decrees, or settlement agreement with a requirement for EPA to take an 
action expressly related to a year 2000 list is a consent decree for 
Georgia. EPA solicits public comment on whether there are any other 
such court orders, consent decrees, and settlement agreements. If there 
are, EPA will notify those States and will identify those States in the 
notice of final rulemaking as States in which a year 2000 list would be 
required. EPA solicits comment on whether to include this exception in 
the final rule.
    In its August 1999 TMDL Rule proposal, EPA proposed to amend the 
existing regulations to change the April 1, 2000, deadline to October 
1, 2000, for submission by the States, Territories, and authorized 
tribes of their lists of impaired waters. EPA made this proposal in 
recognition of the fact that it was unlikely that the comprehensive 
changes it announced in August 1999 would be finalized far enough in 
advance of April 2000 to inform the States' April 2000 lists (64 FR 
46030). EPA proposed that States submit lists in October 2000 either 
using the new TMDL Rule (if finally promulgated ``well in advance of 
October 1'') or the current regulations (in the event the new 
regulations were delayed). Upon further consideration, EPA believes the 
best course is to eliminate the year 2000 list entirely. Today's 
proposal represents EPA's current thinking; however, the public may 
still submit comments on the August 23, 1999, TMDL Rule proposal to 
move the date of the year 2000 list from April 1 to October 1, 2000.
    Even though EPA is proposing to eliminate the requirement that 
States, Territories, and authorized tribes submit lists of impaired 
waters in April 2000, EPA understands that some States may wish to 
submit such lists anyway. In the event that States submit such lists to 
EPA, EPA intends to review and either approve or disapprove them even 
if this proposal to eliminate the April 2000 list becomes final.
    EPA intends to carefully review any proposed removal of a waterbody 
from a section 303(d) list to ensure there is

[[Page 4921]]

information specific to the waterbody to support the removal. Some 
examples of such information are when a State develops and EPA approves 
a TMDL for the waterbody/pollutant on the prior list, new information 
shows that the waterbody is achieving water quality standards for the 
pollutant at issue, or re-evaluation of the information supporting the 
initial listing shows that this information is incorrect. 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 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 list showing that a waterbody does not 
achieve water quality standards or is water quality limited and is 
required by the regulations to be listed. In August, 1999, EPA proposed 
to establish specific criteria for removing a water from a Section 
303(d) list, and is considering whether to promulgate that specific 
provision as part of final action on today's rule. See 64 FR 46049, 40 
CFR 130.29. EPA also intends to exercise its authority to add 
appropriate waterbodies if a State submits a year 2000 list before EPA 
promulgates the comprehensive changes to the TMDL program that were 
proposed on August 23, 1999.
    In developing today's proposal, EPA also considered retaining the 
existing regulatory requirement that States, Territories, and 
authorized tribes submit lists to EPA on April 1 of every even numbered 
year, including April 1, 2000. EPA rejected this option because, in 
light of EPA's pending effort to revise significantly the rules 
governing submission of lists and for the reasons discussed above, it 
does not promote effective and efficient use of government resources in 
identifying impaired waters as a first step toward restoring and 
maintaining the quality of the Nation's waters.

C. Comments Sought

    EPA seeks comments on whether to eliminate the April 1, 2000, 
listing deadline in light of the comprehensive improvements and 
clarifications being proposed to the existing listing requirements. EPA 
also requests comments on whether to move the April 2000 list 
submission date to another date prior to April 2002. EPA also requests 
comment whether to include in the final rule the limited exception 
which would require a State to submit a list in the year 2000 only if a 
court order, consent decree, or settlement agreement dated prior to 
January 1, 2000, expressly requires EPA to take action related to that 
State's year 2000 list.

III. 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.
    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 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 proposed rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule will not impose any requirements on small 
entities. It merely 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. The proposed 
rule applies only to those three categories of entities and does not 
impose requirements upon any small entities. Moreover, today's proposal 
would eliminate a requirement to submit a list of impaired waters in 
the year 2000, thereby saving States, Territories, and authorized 
tribes the economic impact of developing such lists.

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 proposed 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 achieves the objectives of the rule.

[[Page 4922]]

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 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 rule imposes no enforceable duty 
on any State, local, or tribal governments or the private sector. The 
proposal is deregulatory in nature in that it eliminates the current 
regulatory requirement that States, Territories, and authorized tribes 
submit lists of impaired waters in 2000. In addition, since today's 
proposal does not impose any requirements on the private sector, the 
private sector will incur no costs. Thus, today's proposal is not 
subject to the requirements of section 202 and 205 of UMRA.
    For the same reasons as listed above, EPA has determined that this 
proposed rule contains no regulatory requirements that might 
significantly or uniquely affect small governments. Thus, today's rule 
is not subject to the requirements of section 203 of UMRA.

D. Paperwork Reduction Act

    This proposed rule does not contain any information collection, 
reporting, or record keeping requirements. Thus, this rule is not 
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This 
rule would 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 proposed 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 proposed 
rule is deregulatory in nature and eliminates a current requirement 
that States, Territories, and authorized tribes submit lists of 
impaired waters in 2000. Thus, the requirements of section 6 of the 
Executive Order do not apply to this 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 proposal does not significantly or uniquely affect the 
communities of Indian tribal governments nor does it impose substantial 
direct compliance costs on them. The proposal is deregulatory in nature 
in that it eliminates the current regulatory requirement that States, 
Territories, and authorized tribes submit lists of impaired waters in 
2000. Currently, there are no tribes authorized to establish TMDLs or 
lists of impaired waters. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to today's proposal.

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 proposed rule is 
not subject to Executive Order 13045 because it is not ``economically 
significant''. As noted earlier, this rule is deregulatory in nature.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 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

[[Page 4923]]

not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve any technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. EPA welcomes comment on this aspect of the proposal 
rulemaking and specifically invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

List of Subjects in 40 CFR Part 130

    Environmental protection, Intergovernmental relations, Reporting 
and recordkeeping requirements, Water pollution control.

    Dated: January 27, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended 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. Section 130.7 is amended by adding a new sentence after the 
third sentence in paragraph (d)(1) to read as follows:


Sec. 130.7  Total maximum daily loads (TMDL) and individual water 
quality-based effluent limitations.

* * * * *
    (d) * * * (1) * * * For the year 2000 submission, a State must only 
submit a list required under paragraph (b) of this section if a court 
order, consent decree, or settlement agreement dated prior to January 
1, 2000, expressly requires EPA to take action related to that State's 
year 2000 list. * * *
* * * * *

[FR Doc. 00-2282 Filed 2-1-00; 8:45 am]
BILLING CODE 6560-50-P