[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80530-80546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31756]



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Part III





Department of Transportation





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Research and Special Programs Administration



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49 CFR Part 195



Pipeline Safety; Areas Unusually Sensitive to Environmental Damage; 
Final Rule

  Federal Register / Vol. 65, No. 246 / Thursday, December 21, 2000 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 195

[Docket RSPA-99-5455; Amdt. 195-71]
RIN 2137-AC34


Pipeline Safety: Areas Unusually Sensitive to Environmental 
Damage

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final Rule.

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SUMMARY: This final rule defines drinking water and ecological areas 
that are unusually sensitive to environmental damage if there is a 
hazardous liquid pipeline release. We refer to these areas as unusually 
sensitive areas (USAs). RSPA created this definition through a series 
of public workshops, pilot testing, a technical review of the pilot 
test results, and extensive collaboration with a wide-range of federal, 
state, public, and industry stakeholders. This final rule does not 
require specific action by pipeline operators but will be used in 
existing and future regulations.

DATES: Effective February 20, 2001.

FOR FURTHER INFORMATION CONTACT: Christina Sames at (202) 366-4561 or 
[email protected]. Copies of this document or other material 
in the docket can be obtained from the Dockets Facility, U.S. DOT, Room 
#PL-401, 400 Seventh Street, SW, Washington, DC 20590-0001. The Dockets 
Facility is open from 9:00 a.m. to 5:00 p.m., Monday through Friday, 
except on Federal holidays when the facility is closed. The public may 
review material in the docket by accessing the Docket Management 
System's home page at http://dms.dot.gov. An electronic copy of any 
document published in the Federal Register may be downloaded from the 
Government Printing Office Electronic Bulletin Board Service at (202) 
512-1661.

SUPPLEMENTARY INFORMATION: RSPA began its process to define unusually 
sensitive areas in 1992, when Congress amended the federal pipeline 
safety statute. The amended statute (49 U.S.C. 60109) required the 
Secretary of Transportation (Secretary) to prescribe regulations that 
establish criteria for identifying each hazardous liquid pipeline 
facility and gathering line located in an area that the Secretary 
describes as unusually sensitive to environmental damage if there is a 
hazardous liquid pipeline accident. We refer to these unusually 
sensitive areas as USAs for short. In 1996, Congress again amended the 
statute to require the Secretary to consider areas where a pipeline 
rupture would likely cause permanent or long-term environmental damage. 
We described these legislative mandates in more detail in the notice of 
proposed rulemaking (NPRM) (64 FR 73464; December 30, 1999) to define 
USAs.
    To fulfill the legislative mandate, RSPA began a series of public 
meetings and workshops to gather information to help us establish 
criteria for identifying USAs. We held meetings with other federal 
agencies and the pipeline industry to work out a definition. We held a 
series of public workshops to openly discuss draft definitions for 
USAs. These workshops helped develop guiding principles for determining 
which resources to concentrate on, a model of how the USA process could 
work, and helped define terms used to describe USAs. The workshops also 
identified drinking water and ecological resources that are of great 
importance to the nation and filtering criteria to identify those 
resources that could sustain permanent or long term damage if affected 
by a release. Participants at these meetings and workshops included 
representatives from the U.S. Coast Guard; the Departments of Interior, 
Agriculture, and Commerce; the Environmental Protection Agency (EPA); 
the American Waterworks Association; The Nature Conservancy; academia; 
the hazardous liquid pipeline industry and the public. Greater 
discussion on these workshops and meetings is found in the NPRM.

Notice of Proposed Rulemaking

    On December 30, 1999, RSPA issued a NPRM to define USAs (64 FR 
73464). The NPRM focused on drinking water and ecological resources. 
Cultural resources, recreational resources, and economic resource areas 
were not considered in the NPRM. RSPA determined that these areas 
should be addressed as a separate risk factor and under separate 
regulations.
    The NPRM proposed to identify USAs through a process that began by 
designating and assessing environmentally sensitive areas (ESAs), 
determining which ESAs are potentially more susceptible to permanent or 
long term damage from a hazardous liquid release (areas of primary 
concern), and finally identifying filtering criteria to determine which 
areas of primary concern can sustain permanent or long-term damage or 
are necessary for uninterrupted drinking water consumption by the human 
population. The areas that resulted from this process were the proposed 
USAs.
    Under the proposed USA definition, drinking water areas of primary 
concern are a subset of all surface intakes and groundwater-based 
drinking water supplies that provide potable water for domestic, 
commercial, and industrial users. These include public water systems, 
wellhead protection areas, and sole source aquifers. Definitions for 
these resources can be found in the NPRM and at the end of this final 
rule. Proposed filtering criteria included the depth and geology of a 
drinking water resource and if the public water system has an adequate 
alternative drinking water supply. Additional information on the 
proposed filter criteria can be found in the NPRM.
    The proposed ecological USA candidates focused on the 
characteristics of rarity, imperilment, or the potential for loss of 
large segments of an abundant population during periods of migratory 
concentration. These included threatened and endangered (T&E) species, 
critically imperiled and imperiled species, depleted marine mammals, 
and migratory waterbird concentration areas. Definitions for these 
resources can be found in the NPRM and at the end of this final rule. 
Proposed filtering criteria included the extent to which a species is 
vulnerable to extinction, areas that are critical to multiple sensitive 
species, and areas where a large percent of a species population could 
be impacted. Additional information on the proposed ecological filter 
criteria can be found in the NPRM.

How RSPA Will Use the USA Definition

    RSPA will use the USA definition in current and future pipeline 
safety regulations. Any regulatory application of this definition will 
be aimed at ensuring that operators implement appropriate additional 
protective measures for pipelines that could affect USAs. We anticipate 
using the USA definition in the following regulations.
     Integrity Management Rule. RSPA issued a final rule titled 
``Pipeline Safety: Pipeline Integrity Management in High Consequence 
Areas (Hazardous Liquid Operators with 500 or more miles of pipeline)'' 
on November 3, 2000, and it was published in the Federal Register on 
December 1, 2000 (65 FR 75378). The rule establishes new requirements 
to provide additional protection to high consequence areas. High 
consequence areas include USAs, populated areas, and commercially 
navigable waterways. The rule requires hazardous liquid pipeline 
operators who own or operate 500 or more miles

[[Page 80531]]

of pipeline to assess, evaluate, repair, and validate through analysis 
the integrity of any pipeline segment that could affect a high 
consequence area. Operators must develop and follow an integrity 
management program that provides for continually assessing the 
integrity of all pipeline segments that could affect any high 
consequence area, through internal inspection, pressure testing, or 
other equally effective assessment means. The program must also provide 
for periodically evaluating the pipeline segments through comprehensive 
information analysis, promptly remediating potential problems found 
through the assessment and evaluation, and ensuring additional 
protection to the segments and high consequence areas through 
preventative and mitigative measures.
    This integrity management rule was the first in a series of 
rulemakings that ultimately will require all regulated pipeline 
operators to have integrity management programs. This initial action 
covers about 87% of all the hazardous liquid pipelines in the U.S. 
These pipelines have the greatest potential to adversely affect 
critical areas, based on the volume they transport. RSPA is now 
preparing a NPRM with similar requirements for the remaining hazardous 
liquid pipelines currently regulated under 49 CFR Part 195. RSPA will 
then issue proposed integrity management program requirements for 
natural gas pipeline operators.
     Risk-based Alternative to Pressure Testing Older Hazardous 
Liquid and Carbon Dioxide Pipelines. Operators may elect a risk-based 
alternative in lieu of hydrostatically testing certain older pipelines 
(49 CFR 195.303). The alternative establishes test priorities based on 
the inherent risk of a given pipeline segment. One of the risk factors 
is to determine the pipeline segment's proximity to environmentally 
sensitive areas. In the preamble to the final rule, RSPA explained that 
it would consider defining the environmental factor in a future 
rulemaking once a definition of environmentally sensitive areas was 
finalized.
     Response Plans for Onshore Oil Pipelines under 49 CFR part 
194. Operators must consider areas of environmental importance that are 
in or adjacent to navigable waters for spill response planning. RSPA 
intends to amend the definition of environmental importance to include 
USAs. These regulations were mandated by the Federal Water Pollution 
Control Act as amended by the Oil Pollution Act of 1990 (OPA).
     Area Contingency Plans. 49 CFR part 194 also requires 
operators ensure their spill response plans are consistent with 
applicable Area Contingency Plans (ACPs). ACPs establish response 
strategies and priorities for a given area based on a local community 
assessment of all sensitive zones within that area. ACPs are created by 
Area Committees that are established under the U.S. Coast Guard in the 
coastal zone and by the U.S. Environmental Protection Agency in the 
inland zone. Area Committees base response priority and strategy 
determinations on environmental sensitivity, along with social, 
cultural, political, and economic sensitivities. Not all areas 
identified by the ACPs are USAs. The USA definition is not intended to 
dictate how a specific response should be undertaken, rather the 
definition provides a national perspective on environmental sensitivity 
considerations. We expect that pipeline operators and Area Committees 
will work cooperatively to consider the USA information when validating 
existing plans or revising plans during the normal 5-year planning 
cycle.
     Low Stress Pipelines. On July 12, 1999, RSPA issued a 
final rule extending part 195 regulations to certain pipelines 
operating at 20% specified minimal yield strength (SMYS) or less (39 FR 
35465). In that final rule, RSPA deferred proposing to regulate non-
volatile liquid low stress pipelines in rural sensitive areas since 
these areas had not been defined. We stated that we would reconsider 
the issue once there was a sensitive area definition.

USA Pilot Test, Public Workshop and Technical Review

    RSPA conducted a pilot test to determine if the proposed USA 
definition could be used to identify and locate unusually sensitive 
drinking water and ecological resources using available data from 
government agencies and environmental organizations. Texas, California, 
and Louisiana were the states chosen to test the proposed USA 
definition. These states contain approximately 45% of the nation's 
hazardous liquid pipelines and considerable drinking water and 
ecological resources.
    RSPA collected drinking water, ecological, and base map data for 
the pilot test. Computer models were created from the proposed USA 
definition to process the collected data. RSPA used a geographic 
information system (GIS) to run the computer models and create maps of 
the USAs. The results of the pilot test can be found on the following 
web site: http://ops.dot.gov./pilotresults.htm.
    The pilot test verified that the proposed USA definition could be 
used to identify and locate USAs. The pilot helped identify the types 
of data and the data attributes needed to run the computer models and 
what data are currently available in the pilot states. The pilot also 
helped in testing and modifying the model where incomplete data were 
not available.
    On April 27-28, 2000, RSPA conducted a public workshop to discuss 
the pilot test results and begin a technical review of those results. 
Workshop participants included drinking water and ecological resource 
experts from federal and state agencies, academia, environmental 
groups, and the public. RSPA also solicited drinking water and 
ecological experts to provide a formal technical review of the pilot 
results. These technical reviewers included the Department of the 
Interior's Fish and Wildlife Service, the Department of Agriculture's 
Forest Service, the Department of Commerce's National Marine Fisheries 
Service, the U.S. Environmental Protection Agency (EPA) Office of 
Groundwater and Drinking Water, Louisiana Department of Environmental 
Quality, Louisiana Natural Heritage Program, Texas Natural Resource 
Conservation Commission, Railroad Commission of Texas' Environmental 
Services Division, California Department of Fish and Game, University 
of California Davis, Colorado State University, University of Alabama, 
Dartmouth College, and The Nature Conservancy.
    Discussions at the workshop included background on the USA 
initiative, the proposed drinking water and ecological definitions, 
models that were used to apply the proposed definition, data that was 
gathered, how the data was processed using a GIS, and maps of the 
resulting USAs. Presentations from the workshop and a detailed summary 
of the workshop can be viewed from RSPA's USA Internet page: http://ops.dot.gov/init.htm#usa. Workshop participants also submitted their 
comments to the docket on this rulemaking.

Discussion of Comments Received From the Public Workshop and 
Technical Review

    The formal technical reviewers and other workshop participants 
stated the proposed USA definition and the computer model created from 
the proposed definition are reasonable and a significant start to 
defining USAs. They offered various suggestions for improving the 
proposed USA definition,

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the computer model created from the proposed definition, and the 
process used to create USA maps.

Drinking Water Recommendations

    1. Replace wellhead protection areas (WHPAs) with source water 
protection areas (SWPAs), specifically the areas of primary influence.
    A WHPA is an area surrounding a water well or well field that 
supplies a public water system through which contaminants are likely to 
pass and eventually reach the water well or well field. SWPAs are being 
created under a new EPA program, the Source Water Assessment Program 
(SWAP). The SWAP expands EPA's Wellhead Protection Program to cover 
surface water and places where groundwater interacts with surface 
water, in response to the 1996 Amendments to the Safe Drinking Water 
Act. State agencies are obtaining additional information than the data 
used to create the WHPAs in order to create SWPAs.
    Under SWAP, state agencies must perform a source water assessment 
for each public water system to analyze existing and potential threats 
to the quality of the public water. As part of the assessment, the 
state must delineate the SWPA for the public water system. All source 
water assessments and SWPAs must be completed by May 2003.
    The NPRM proposed that a WHPA for a community water system or a 
non-transient non-community water system that obtains its water supply 
from a Class I or Class IIA aquifer and does not have an adequate 
alternative source of water for a backup be considered a USA. The NPRM 
discussed community water systems, non-transient non-community water 
systems, and Class I and IIA aquifers in detail. Definitions for these 
terms can be found in the NPRM and at the end of this final rule.
    The formal technical reviewers and other workshop participants 
agreed that RSPA should replace WHPAs with SWPAs. These commenters 
stated that SWPAs are more appropriate since they are an expansion of 
the WHPAs and the SWPAs should be more accurate than the WHPAs. In 
addition, states are focusing their attention away from WHPAs and onto 
SWPAs. Therefore, the WHPAs may become obsolete over time.
    Since the SWAP is a new program, commenters suggested that RSPA 
continue to use WHPAs where SWPAs have not yet been identified. 
However, RSPA found that a few SWPAs have already been delineated as of 
August 2000.
    RSPA agrees with the commenters and in the final rule has replaced 
WHPAs with SWPAs. Where SWPAs have not been created, WHPAs will be used 
to identify USAs.
    2. Replace the Pettyjohn et al. Aquifer Classification Scheme with 
SWPAs.
    In the NPRM, RSPA proposed to use the Pettyjohn et al. aquifer 
classification scheme as a way to determine which ground water sources 
are more susceptible to contamination from a hazardous liquid release. 
The Pettyjohn et al. aquifer classification scheme can be found in EPA 
Report 600/2-91/043, ``Regional Assessment to Aquifer Vulnerability and 
Sensitivity in the Conterminous United States,'' August 1991. Under 
this classification scheme, aquifers are ranked as Class I (a-d), II 
(a-c), III, or U. Class I aquifers are surficial or shallow, are 
permeable, and are highly vulnerable to contamination. Class II 
aquifers are consolidated bedrock aquifers that are moderately 
vulnerable to contamination. Class III aquifers are consolidated or 
unconsolidated aquifers that are overlain by more than 50 feet of low 
permeability material and have a low vulnerability to contamination. 
Class U aquifers are undifferentiated aquifers where several lithologic 
and hydrologic conditions exist.
    One technical reviewer stated that it may be appropriate to replace 
the Pettyjohn et al. aquifer classification scheme used in the NPRM 
with SWPAs. Under the Source Water Protection Program, there are three 
components of source water assessment: (1) Delineating the boundaries 
of areas providing source waters to public water supplies (the SWPA); 
(2) identifying, to the extent practical, the origins of certain 
unregulated contaminants in the water supplies; and (3) determining the 
susceptibility of the source waters of the public water system(s) to 
contamination.
    For groundwater supplies, the SWPA delineation methods are very 
similar to the WHPA delineation methods, and many States are using 
previously delineated WHPAs as SWPAs for groundwater supplies. However, 
delineation of a SWPA is only the first step in the assessment process. 
The susceptibility analysis is a critical component of the program to 
identify those SWPAs that are most susceptible to contamination, and it 
has not been completed for most of the country.
    The Pettyjohn et al. aquifer classification scheme is a similar 
approach to determine the susceptibility of an aquifer to 
contamination. Since states will not complete their source water 
assessments until May 2003, RSPA considers it appropriate to continue 
to use the Pettyjohn approach that was characterized in the NPRM. RSPA 
will consider replacing the Pettyjohn et al. aquifer classification 
scheme with completed source water assessment data in the future. If we 
determine the SWPAs are an appropriate replacement to the Pettyjohn et 
al. aquifer classification scheme, we will issue a NPRM seeking comment 
on revising the USA definition.
    3. Make a preliminary drinking water USA a USA unless it is 
verified that an adequate alternative drinking water source exists. 
Change the adequate alternative drinking water source definition to 
extend the amount of time needed for the backup water source from one 
month to six months for groundwater systems.
    In the computer model created from the proposed USA definition, a 
drinking water resource passes through a series of filtering criteria 
to determine if the resource is susceptible to contamination from a 
pipeline release. Drinking water intakes and WHPAs that pass these 
filtering criteria are called preliminary drinking water USAs. All 
preliminary drinking water USAs are put through a final filter 
criterion--Is there an adequate alternative drinking water source that 
the preliminary drinking water USA can pull from? The NPRM proposed 
that an adequate alternative drinking water source be defined as a 
source of water that currently exists, can be used almost immediately 
with a minimal amount of effort and cost, will meet the short-term (at 
least one month) consumptive and hygiene requirements of the existing 
population of impacted customers, involves no perceptible change in 
water quality, and is temporary (until a long term alternative can be 
put in place, if necessary).
    During the pilot test, RSPA telephoned public water suppliers to 
determine if an adequate alternative drinking water source existed for 
preliminary drinking water USAs. If the public water supplier stated 
that an adequate alternative drinking water source existed, the 
drinking water resource did not become a USA. If the public water 
supplier could not be reached or if the information received from the 
supplier was too ambiguous to decipher, the preliminary drinking water 
source stayed as a preliminary drinking water USA and did not become a 
final USA. In the pilot states, the success rate for determining 
whether there was an adequate alternative drinking water source varied 
widely, from only 45 percent for California, to nearly 85 percent for 
Louisiana.
    The formal technical reviewers and workshop participants 
recommended that RSPA modify how the computer

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model created from the proposed USA definition processes adequate 
alternative drinking water sources. Commenters stated that all 
preliminary drinking water USAs should be treated as USAs unless the 
public water supplier states that an adequate alternative drinking 
water source exists. Most reviewers commented that, if it was not 
feasible to determine whether there was an adequate alternative 
drinking water source, the default assumption should be that there is 
no adequate alternative source.
    Participants and reviewers also recommended that RSPA change the 
proposed adequate alternative drinking water source definition to 
extend the amount of time needed for the backup water source for 
groundwater systems. Commenters stated that, in their experience, most 
spills that have affected surface water intakes resulted in short-term 
shutdowns of the intakes and that one month would be appropriate for 
surface water intakes. However, for groundwater systems, one month 
would not be enough time. Contamination to a groundwater system may 
take longer than a month to clean up and new wells might have to be 
drilled and connected to the water distribution system. Therefore, 
commenters suggested that the backup time be changed from one month to 
six--twelve months for groundwater systems.
    RSPA agrees with both recommendations and has incorporated them 
into the final rule. RSPA believes that six months is a sufficient 
amount of time for an adequate alternative drinking water source for a 
groundwater system.
    4. Remove the doubling of WHPAs in sole source aquifers.
    In the NPRM, RSPA proposed as USAs an area twice that of the WHPAs 
if the following conditions existed:
     The WHPA was in a sole source aquifer,
     The sole source aquifer was a Class I or IIa aquifer as 
determined by the Pettyjohn, et al., aquifer classification scheme, and
     There was not an adequate alternative drinking water 
source available.
    EPA defines a sole or principal source aquifer as one which 
supplies at least 50 percent of the drinking water consumed in the area 
overlying the aquifer. These areas can have no alternative drinking 
water source(s) which could physically, legally, and economically 
supply all those who depend on the aquifer for drinking water.
    Workshop participants and technical reviewers stated that RSPA 
should rely on the analysis conducted by a state and should not second 
guess a state by doubling the WHPA. Each state has set up delineation 
programs that include scientific analytical methods to determine the 
appropriate size of the WHPA. Therefore, the states can most 
competently determine the correct protection area that should be used.
    RSPA agrees with these comments. The final definition does not 
double the SWPAs or WHPAs in sole source aquifers.
    5. Update the definition for a Community Water System.
    In the NPRM, RSPA proposed to define a community water system as 
``a public water system that provides water to the same population year 
round.'' RSPA agrees that the final USA definition should use EPA's 
current definition for a community water system, as defined by statute. 
The current definition is ``A public water system that serves at least 
15 service connections used by year-round residents of the area served 
by the system or regularly serves at least 25 year-round residents.''
    6. Change the Filter Criteria to Consider All Class II Aquifers, 
Not Just Class IIa.
    In the NPRM, RSPA proposed that the WHPAs for community water 
systems or non-transient non-community water systems that obtain their 
water from a Class I or IIa aquifer and do not have an adequate 
alternative source of water for a backup be considered USAs. Class II 
aquifers are consolidated bedrock aquifers that are moderately 
vulnerable to contamination. They include the following sub-classes:
    Class IIa: Higher Yield Bedrock Aquifers. Consist of fairly coarse 
sandstone or conglomerate that contain lesser amounts of interbedded 
fine-grained clastics and occasionally carbonate units. In general, 
well yields must exceed 50 gallons per minute (gpm) to be included in 
this class.
    Class IIb: Lower Yield Bedrock Aquifers. Consist of the same 
clastic rock types present in the higher yield systems. Well yields are 
commonly less than 50 gpm.
    Class IIc: Covered Bedrock Aquifers. Consist of Class IIa and IIb 
aquifers that are overlain by less than 50 feet of unconsolidated 
material of low permeability.
    One technical reviewer recommended that all Class II aquifers 
(Pettyjohn et al., 1991) be considered. We are not adopting this 
recommendation. RSPA believes that class IIb and IIc are not 
significantly at risk of contamination from a release from a hazardous 
liquid pipeline. The USA delineation process is intended to identify 
those resources that are unusually sensitive to damage from a pipeline 
release. Lower-yield aquifers are at less risk of contamination because 
response actions should be effective in containing and cleaning up the 
spilled oil before the well becomes contaminated.
    7. Include sole source aquifers that are karst in nature USAs.
    One technical reviewer recommended that RSPA include all sole 
source aquifers that are karst in nature as USAs. Another reviewer 
recommended that the final USA definition include the recharge areas of 
the sole source aquifers that are karst in nature. Karst aquifers are 
composed of limestone or dolomite where the porosity is derived from 
connected solution cavities. They are often cavernous, with high rates 
of flow. These types of aquifers are very susceptible to contamination 
and EPA's data show at least one case of significant contamination in a 
karst aquifer as a result of a hazardous liquid pipeline release in the 
recharge area of the aquifer.
    The recharge area is the area contributing to the groundwater that 
may flow to the aquifer over a long time. Recharge areas for karst 
aquifers often include sinkholes, disappearing streams, etc. where 
surface contaminants can directly enter the aquifer. Even rapid and 
effective spill response is not likely to prevent groundwater 
contamination in these areas.
    RSPA agrees that the recharge area of karst aquifers are highly 
susceptible to contamination from a hazardous liquid pipeline release. 
RSPA does not agree that the entire karst aquifer is unusually 
sensitive. Although contaminants, once introduced, will flow rapidly 
within the aquifer, they cannot readily be introduced in non-recharge 
areas. According to the Pettyjohn et al. aquifer classification system, 
if there are 50 feet or more of imperious material overlying the 
aquifer, it is a Class III aquifer and is of low susceptibility of 
contamination, even if it is karst in nature.
    In the NPRM, RSPA proposed that the WHPAs for community water 
systems or non-transient non-community water systems that obtain their 
water from a Class I or IIa aquifer and do not have an adequate 
alternative source of water for a backup be considered USAs. A recharge 
area of a sole source aquifer that is karst in nature would be 
considered part of a Class I aquifer. The NPRM proposed that WHPAs be 
doubled for sole source aquifers to provide additional protection. 
While RSPA did not propose to include the

[[Page 80534]]

entire recharge area for sole source aquifers that are karst in nature, 
RSPA did show intent to provide these areas with additional protection.
    RSPA has conducted a national review of sole source aquifers that 
are karst in nature and has determined that including the recharge 
areas for these aquifers would only cause a minor increase in the 
amount of land mass identified as a USA. Therefore, RSPA has included 
the recharge areas of sole source aquifers that are karst in nature in 
the final USA definition.
    8. Where possible, consider artificial penetrations from abandoned 
wells, injection wells, seismic shot holes, etc.
    Three technical reviewers and several workshop participants 
expressed concern that artificial penetrations into an aquifer would 
provide a pathway for aquifer contamination that was unaccounted for in 
the Pettyjohn et al. aquifer classification. Artificial penetrations 
include abandoned wells, monitoring wells, injection wells, seismic 
shot holes, and improperly constructed water wells that allow 
groundwater interflow among aquifers. Artificial penetrations are of 
particular concern in many areas, including those with oil and gas 
exploration and production. In spite of the concern of the technical 
reviewers and workshop participants, the lack of data on the locations 
of these artificial penetrations makes it impossible to consider them 
in state or regional mapping applications or risk assessments at this 
time.

Ecological Recommendations

    1. Include in the USA definition all resources RSPA was asked to 
consider in the federal pipeline safety statute.
    One technical reviewer recommended that USAs include all resources 
that RSPA was asked to consider in 49 U.S.C. Sec. 60109. These 
resources include critical wetlands, riverine or estuarine systems, 
national parks, wilderness areas, wildlife preservation areas or 
refuges, wild and scenic rivers, and critical habitat for threatened 
and endangered species.
    RSPA has determined that not all of these resources should be 
considered USAs at this time. Congress required RSPA to establish 
criteria defining locations where unusually sensitive resources might 
incur permanent or long-term ``environmental'' damage in the event of 
an oil spill. Congress added the words ``permanent'' and ``long-term'' 
when it amended the USA identification requirements in 1996 (49 U.S.C. 
60109). As we explained in the NPRM, rather than focus on the 
geographic boundaries of these areas, we focused on particular 
ecological species and drinking water resources in these areas that 
could suffer irreparable harm from a hazardous liquid release. We 
believe that protecting those particular species and resources now will 
concentrate prevention, mitigation, and response resources on areas 
that are most susceptible to permanent or long-term damage.
    We believe that this approach satisfies the statutory mandate. We 
ran computer models that tested including various categories of 
resources, including all resources listed in the statutory mandate, for 
which existing data bases permitted computer modeling. Based on our 
analysis of all information currently available, we believe that by 
focusing on the particular ecological species and drinking water 
resources that could suffer irreparable harm, we will pick up a 
substantial extent of resources within the National Parks, National 
Wildlife Refuges, National Wilderness Areas, National Forests, and 
other resources that do not meet the filtering criteria being used in 
this rulemaking. Based on information currently available, it is not 
possible at this time to determine the extent of coverage in these 
nationally important resources areas.
    Although we have not included these other areas in this rulemaking, 
RSPA will consider extending protection to other environmentally 
sensitive and vital resources through future rulemaking. Other areas 
that will be considered include the National Parks, National Wildlife 
Refuges, National Wilderness Areas, National Forests, and other 
cultural and sensitive environmental resources that do not meet the 
filtering criteria being used in this rulemaking.
    The following provides additional information on some of the 
particular resources listed in the federal pipeline safety statute:

Critical Wetlands

    RSPA has not been able to find a strict definition of critical 
wetlands or a consistent program that identifies critical wetlands that 
could be applied to the ecological USA program. ``Critical wetland'' in 
many cases is a generally applied term used in a wide variety of 
situations.
    The most prevalent use of this term is in relation to issuance of 
permits for impacts to wetlands under Section 404 of the Clean Water 
Act. Some states have developed special conditions, mainly related to 
water quality criteria, that limit use of nationwide and other general 
permits in certain waters. The term ``critical wetland'' is used by a 
few states in this regard, however, the types of wetlands considered as 
``critical'' differ from state to state.
    The term ``critical wetland,'' when used in permitting programs, 
tends to require additional scrutiny to permit applications. It does 
not preclude the approval of permits. Indeed, permits are approved for 
these ``critical wetlands,'' subjecting these areas to environmental 
impacts.
    Although the USA definition does not use the term ``critical 
wetlands,'' the definition does include wetlands that are represented 
in the Ramsar program (Wetlands of International Importance) and the 
Western Hemisphere Shorebird Reserve Network (WHSRN) program. These 
wetlands include the Florida Everglades, the Okefenokee Swamp in 
Georgia, Cheyenne Bottoms in Kansas, and Ash Meadows in Nevada. The 
protection of rare and endangered species in ecological USAs also 
contributes to the protection of wetland habitats. For aquatic and 
wetland species, the computer model created from the proposed and final 
USA definition identifies potentially larger polygonal areas as USAs 
(using a five mile radius around the species occurrence locations, as 
well as a one-fourth mile buffer into adjacent upland habitats), 
relative to terrestrial species (using a one mile radius), increasing 
the amount of wetland or aquatic area protected.
    Finally, as a result of technical reviewer and workshop participant 
comments and other public comments to the NPRM, RSPA has revised the 
USA definition to include all occurrences of aquatic and aquatic-
dependent USA candidate species. This will further increase the number 
and extent of wetlands captured as USAs. Our discussion about including 
these species is found later in this document.

Riverine or Estuarine Systems

    Rivers and estuaries are extensive geographic features. Although 
all rivers and estuaries are important national resources, RSPA has 
decided to focus on the most sensitive portions that contain critically 
imperiled, imperiled, and threatened and endangered species.
    Many rivers and estuaries are captured in whole or part by the 
final definition. Areas such as the Chesapeake Bay estuary, the 
Delaware Bay estuary, San Francisco Bay, Florida Bay (in Everglades 
National Park), the Copper River delta in Alaska and the Altamaha River 
in Georgia will be captured as USAs due to their recognition in the 
Ramsar and/or WHSRN programs. USAs formed due to the presence of rare 
and endangered species also result in the protection of

[[Page 80535]]

estuaries and rivers. As an example, many estuaries, rivers, and 
streams in the California pilot test became ecological USAs because 
they contained critically imperiled salmon populations. Also, much of 
the Pearl River in the Louisiana pilot became a USA because it 
contained three or more occurrences of endangered and imperiled 
species.

National Parks, Wildlife Refuges, Wildlife Preserves, Wilderness Areas 
and Wild and Scenic Rivers

    We refer to these areas collectively as management areas, since 
they are managed primarily by the Departments of Interior and 
Agriculture. All of these areas are very important national resources. 
Rather than focus on the geographic boundaries of these areas, the 
proposed USA definition focuses on many areas within the boundaries as 
potential ecological USAs because of the presence of other protected 
species or natural communities.
    Management areas tend to receive more USA designations because 
there is more information on the ecological resources in these areas. 
Endangered and rare species surveys, migratory waterbird surveys and 
enhancement projects, and detailed natural resource mapping efforts are 
much more prevalent in management areas compared to lands under other 
types of ownership and management. Accordingly, under this rule, large 
portions of our national parks, wildlife refuges, etc. are likely to be 
identified and protected as USAs even without explicitly including 
these important national resources as a USA. Based on data currently 
available for our analysis, it is not possible to determine the exact 
extent of coverage with the boundaries.

Designated Critical Habitat for Threatened or Endangered Species

    During the public workshops that were held to help identify USAs, 
designated critical habitats (DCH) were considered as possible 
ecological USA candidates. RSPA chose to focus on the locations of the 
species rather than DCH because the location is a more focused 
identification of where the rare species currently exists. RSPA expects 
large areas of DCH to be USAs based on the presence of rare species. 
Due to the way in which critical habitats are described for some 
species, converting the DCH text descriptions to geographic boundaries 
would be difficult and, in some cases, impossible. We believe that 
protecting those particular species and resources now will concentrate 
prevention, mitigation and response resources to areas that are most 
susceptible to permanent or long-term damage.
    As new ecological information becomes available to RSPA and we 
identify and locate additional USAs, the operator has responsibility to 
apply this new information in its integrity management program.
    2. Include additional species concentration areas, such as 
rookeries.
    Four technical reviewers and workshop participants recommended that 
the USA definition include additional species congregation areas, such 
as migratory, breeding, calving, spawning, and nursery areas. 
Congregation areas are currently covered in the proposed definition 
through inclusion of Ramsar and Western Hemisphere Shorebird Reserve 
Network (WHSRN) sites. These sites protect highly significant migratory 
waterbird concentration areas and habitats. In these areas, a very 
large percent of a water bird species population concentrate, creating 
a situation where a relatively abundant species might have a large 
percentage of its population impacted by a petroleum spill. One of the 
best examples of this type of concentration area is the portion of 
Delaware Bay where 80-90 percent of the red knot (a shorebird) 
population stops-over to feed during migration.
    RSPA researched additional species aggregation and concentration 
areas and found standard definitions, classifications, and databases do 
not exist or are not complete enough to include them in the USA model. 
Of our three pilot states, only the eastern portion of Louisiana had 
additional species concentration data.
    From our research, we concluded that we should consider adding two 
programs to the ecological component of the USA definition when 
complete data is available: Colonial waterbird nesting sites and 
Important Bird Areas. Colonial waterbirds include seabirds and wading 
birds, such as herons, egrets, ibises, pelicans, gulls, and terns. 
Colonial waterbird nesting data are currently collected by many state 
resource agencies. States collect the data in a relatively standardized 
way, but the type of information collected and its format, quality, 
availability, etc. varies widely between states and even within 
individual states. This variability makes identifying unusually 
sensitive or highly significant colonies very difficult to impossible 
on a national or range-wide basis.
    To address the variability problem, two related national programs 
spearheaded by the USGS Biological Resources Division (BRD) are 
currently under development. One effort is to establish a national 
monitoring program for colonial waterbirds and a centralized database. 
The other is to develop a management plan for colonial waterbirds 
throughout North America. The USGS BRD's Patuxent Wildlife Research 
Center can be contacted for more information about these programs 
(http://www.pwrc.usgs.gov/ or phone: 301/497-5753).
    Important Bird Areas (IBAs) is a relatively new program headed by 
the American Bird Conservancy and the National Audubon Society to 
identify unusual or highly significant concentration bird areas. 
Criteria established for certain types of sites in the IBA program 
might be comparable to criteria used in the Ramsar and WHSRN programs. 
IBAs include wintering, breeding, and migratory sites and also cover 
additional species groups (IBA is not limited to migratory waterbirds). 
However, the exact criteria used to determine IBAs are not currently 
available and supporting data for different sites are still in 
development, making it difficult to evaluate sites for inclusion in the 
USA model. Furthermore, geographic information and/or maps to delineate 
IBA locations do not exist. A published account of the most significant 
IBAs for each state is expected in the near future. For more 
information about IBAs, contact the American Bird Conservancy (http://www.abcbirds.org/ or phone: 540/253-5780).
    Once complete data are available, RSPA will evaluate the data and 
determine whether to include these programs in the USA definition. If 
we determine that these programs should be included as USAs, RSPA will 
issue a NPRM seeking pubic comment on revising the USA definition.
    3. Add rare ecological communities (habitats), such as California's 
vernal pools.
    Five technical reviewers and various workshop participants 
recommended that RSPA add rare ecological communities (habitats) to the 
USA definition. RSPA carefully considered including rare ecological 
communities when developing the proposed USA definition. RSPA did not 
include them in the proposed definition because of the quality of the 
rare ecological community data at the time these resources were being 
considered. At that time, data providers indicated that the 
classification systems, nomenclature, conservation status ranks, etc. 
for the ecological community data were still in development and were 
not consistent.
    RSPA was concerned that different state groups and other data 
providers were using different classification

[[Page 80536]]

schemes, different naming conventions, inconsistent status ranks, etc. 
Therefore, RSPA did not include rare ecological communities in the 
proposed definition. Since that time, data standards for the natural 
community data have greatly improved.
    RSPA agrees that critically imperiled and imperiled rare ecological 
communities should now be included as ecological USA candidates, with 
the caveat that the natural community data must match recent 
nomenclature and conservation status rank conventions. RSPA believes 
including these resources in the final definition is consistent with 
our expressed intent to focus on resources that are susceptible to 
permanent or long term damage if affected by a release. All the same 
filtering criteria will be applied.
    RSPA tested a modification of the proposed definition that included 
rare communities. In our pilot states, adding rare communities 
increased the amount of land mass by less than 1% in Louisiana and 
California. It did not increase the land mass covered in Texas.
    4. Make imperiled, threatened and endangered, and depleted marine 
mammal species that are aquatic or aquatic dependent or are terrestrial 
and have a limited range USAs.
    Several technical reviewers and workshop participants recommended 
that RSPA modify the proposed definition to increase the USA species 
representation. For USAs, increasing species representation would 
increase the percent of critically imperiled, imperiled, threatened and 
endangered, and depleted marine mammal species that are covered as 
USAs.
    Technical reviewers and workshop participants discussed several 
ways to increase representation. One suggestion was to add as USAs all 
species that are aquatic or aquatic dependent and species that are 
terrestrial with a limited range (occupying a small area or can not 
move far). These species are more susceptible to permanent or long term 
damage since they are less likely or less able to avoid or leave an 
impacted area. These species are more likely to have all or a large 
part of the area they occupy or use as habitat or food sources 
disturbed, impacted, or destroyed during a spill.
    RSPA tested a modified USA definition that included aquatic or 
aquatic dependent species and species that are terrestrial and have a 
limited range. For terrestrial species, RSPA reviewed the ecological 
databases for the pilot states to determine an appropriate value for 
``limited range.'' RSPA determined that five acres was an appropriate 
value. Five acres or less seemed to successfully discriminate between 
those terrestrial species that have small ranges versus those that are 
easily recognized as wide-ranging species. Rare terrestrial species 
with limited ranges include most critically imperiled, imperiled and 
threatened and endangered plants and invertebrates.
    The following table compares the representation statistics that 
were achieved for imperiled species and threatened and endangered 
species with the proposed rule and the statistics achieved when we add 
aquatic, aquatic dependent, and limited range species. The 
representation statistics for critically imperiled species were 100% 
for both the proposed definition and the modified definition since all 
critically imperiled species are USAs.

------------------------------------------------------------------------
                                                         Threatened &
                                   Imperiled species  endangered species
------------------------------------------------------------------------
Proposed rule...................  TX: 70%             TX: 90%
                                   representation.     representation.
                                  LA: 30%             LA: 60%
                                   representation.     representation.
                                  CA: 93%             CA: 98%
                                   representation.     representation.
With changes....................  TX: 99%             TX: 90%
                                   representation.     representation.
                                  LA: 97%             LA: 92%
                                   representation.     representation.
                                  CA: 100%            CA: 100%
                                   representation.     representation.
------------------------------------------------------------------------

    RSPA agrees with the technical reviewers that these species should 
be made USAs. Adding these species is consistent with our intent in the 
proposed definition to provide additional protection to species in or 
near water. In the computer model created from the proposed USA 
definition, species that are aquatic or aquatic dependent are given a 
five mile buffer instead of the one mile buffer given to species that 
are terrestrial. In the pilot states, adding aquatic, aquatic 
dependent, and limited range species increased the amount of land mass 
by less than 2% in Texas, 4% in California, and 13% in Louisiana.
    5. Change multi-species protection areas (MSPAs) from three 
overlapping species to two overlapping species. Also, change MSPA to 
``multi-species assemblage areas.''
    In the proposed USA definition, a MSPA is defined as an area where 
three or more different critically imperiled or imperiled species, 
threatened or endangered species, depleted marine mammals, or migratory 
waterbird concentrations co-occur. Several technical reviewers and 
workshop participants recommended that MSPAs be changed from three 
overlapping species to two overlapping species to increase 
representation.
    The following table compares the representation statistics that the 
proposed rule achieved for imperiled species and threatened and 
endangered species with the proposed rule and the statistics achieved 
when we change MSPAs from three overlapping species to two overlapping 
species. The representation statistics for critically imperiled species 
were 100% for both the proposed definition and the modified definition 
since all critically imperiled species are USAs.

------------------------------------------------------------------------
                                                         Threatened &
                                   Imperiled species  endangered species
------------------------------------------------------------------------
Proposed rule...................  TX: 70%             TX: 90%
                                   representation.     representation.
                                  LA: 30%             LA: 60%
                                   representation.     representation.
                                  CA: 93%             CA: 98%
                                   representation.     representation.
With MSPA changes...............  TX: 84%             TX: 96%
                                   representation.     representation.
                                  LA: 63%             LA: 80%
                                   representation.     representation.
                                  CA: 97%             CA: 99%
                                   representation.     representation.
------------------------------------------------------------------------


[[Page 80537]]

    Comparing the representation statistics when adding aquatic, 
aquatic dependent, and limited terrestrial species with changing MSPAs 
from three overlapping species to two shows greater representation is 
achieved by adding aquatic, aquatic dependent, and limited terrestrial 
species. This modification will result in covering larger assemblage of 
species vulnerable to extinction and provides greater species 
protection. Therefore, in the final USA definition, RSPA chose to 
include the aquatic, aquatic dependent, and limited terrestrial 
species. RSPA did not change MSPAs from three overlapping species to 
two.
    Various workshop participants and technical reviewers also 
recommended that we change the term ``multi-species protection area'' 
to ``multi-species assemblage areas.'' RSPA agrees that this would be a 
more accurate portrayal of these areas and has changed the term in the 
final rule.
    6. Add species and ecological community occurrences that are in the 
best condition and are therefore the most viable, as identified by the 
Natural Heritage Programs' element occurrence rank (EORANK) or some 
other measure.
    One technical reviewer recommended that RSPA consider including 
those rare species and ecological community occurrences that are in the 
best condition and are therefore the most viable. The Natural Heritage 
Programs assign EORANKs to species and ecological community occurrences 
based on a population's size, condition, and landscape context. An 
EORANK of A means the species or community occurrence is in excellent 
condition and an EORANK of B means it is in good condition. EORANKs of 
C and D refer to occurrences that are marginal or poor. EORANKs of H 
and X refer to historical and extirpated occurrences.
    Rare species and ecological community occurrences with an EORANK of 
C or D are considered in other areas. All critically imperiled species 
and community occurrences are USAs, regardless of their EORANK. 
Imperiled species and ecological community occurrences, threatened and 
endangered species occurrences, and depleted marine mammal species 
occurrences that have an EORANK of C or D are USAs if the species is 
aquatic, aquatic dependent, or has a limited terrestrial range, or if 
it is part of a MSPA or migratory waterbird concentration area.
    RSPA agrees that rare species and community occurrences that are in 
the best condition and are therefore the most viable should be added as 
USAs. Adding these rare species and community occurrences ensures that 
the highest quality or most important occurrences for the remaining 
rare species and community occurrences (those that are not aquatic or 
aquatic dependent, or part of a multi-species assemblage area) are 
included as USAs. Accordingly, RSPA has added to the USA definition 
imperiled, threatened or endangered, or depleted marine mammal species 
occurrences and imperiled ecological community occurrences that have an 
EORANK of A or B. All critically imperiled species and community 
occurrences are already treated as automatic USAs.
    RSPA tested a modification of the proposed definition that included 
the most viable rare species and ecological community occurrences. In 
our pilot states, adding rare communities increased the amount of land 
mass by less than 1% in Texas, by 2% in California, and by 4% in 
Louisiana.
    7. Use the state conservation status ranks (S-ranks) to exclude 
extinct and historic species.
    One technical reviewer recommended that RSPA use the state 
conservation status ranks to remove species that are historical or 
extirpated. RSPA agrees to remove the species and ecological 
communities with an S-rank of SX in the computer model that will be 
created from the final USA definition. RSPA will not remove the species 
or communities with an SH ranking because there is sufficient 
variability in how this ranking is used and a possibility that the 
occurrence is still present that RSPA elects to err on the side of 
including SH occurrences.
    8. Include only occupied habitat for terrestrial species with large 
ranges.
    One technical reviewer recommended that RSPA include only those 
areas designated as being occupied for terrestrial species that have 
large ranges. This concept is already incorporated into the computer 
model created from the proposed USA definition. For species with large 
ranges that are mapped as polygons, areas described as ``potentially'' 
containing a species are not used in the computer model. Also, large 
polygonal distributions that are not classified as ``occupied habitat'' 
or ``specific bounded areas'' (e.g., areas where the specific 
boundaries of the species occurrence were mapped) are not used in the 
computer model.
    9. Include state listed threatened and endangered species and state 
priorities.
    Two technical reviewers recommended that RSPA consider including 
state listed threatened and endangered species and resources that the 
state considers important. RSPA considered including these species and 
resources, but found that state listings do not always reflect the 
nationwide, or range-wide, abundance of a species. In many cases, a 
species may be ranked or listed in a state because it is near the edge 
of its range and is therefore rare within that state. The species may 
be relatively abundant in the adjacent states. State rankings and 
listings can also be highly variable due to differences among states in 
ranking and listing procedures and regulations. For these reasons, RSPA 
does not agree that these resources should be included.

Miscellaneous Recommendations

    The technical reviewers and workshop participants also provided 
recommendations that apply to both the drinking water and ecological 
portion of the proposed rule, or to items that were not proposed in the 
NPRM. These include the following:
    1. Include cultural and Indian tribal concerns, economic, and 
recreational areas as USAs.
    One technical reviewer recommended that RSPA include the above 
resources as USAs. The proposed definition concentrated on drinking 
water and ecological resources. The NPRM did not propose to include 
other sensitive resource areas. Before proposing the USA definition, we 
sought extensive comment from drinking water experts, ecological 
resource experts, and interested public parties. We would not want to 
include these other areas now without an opportunity for public comment 
and evaluation by experts. RSPA intends to define other sensitive 
resource areas that need additional protection in a future rulemaking 
and will consider cultural and Indian tribal concerns, economic and 
recreational areas as a part of this process.
    2. Update USAs on a periodic basis, possibly every 4-5 years.
    Several technical reviewers and workshop participants stated that 
USAs need to be updated on a regular basis or they would become 
obsolete over time. RSPA agrees. RSPA intends to identify the locations 
of USAs through a comprehensive collection and analysis of drinking 
water and ecological resource data, contingent on the availability of 
funding and resources. These areas will be mapped using the National 
Pipeline Mapping System. Operators, other government agencies and the 
public will have access to these maps through the Internet. Individuals 
will be able to view maps of USAs and other high consequence areas 
nationally or by state, county, zip code, or zooming in or out of a 
particular area. Operators will then be able to use the maps as a guide 
to determine which areas of their

[[Page 80538]]

pipeline could affect USAs. Operators may need to contact resource 
agencies to obtain additional information on a particular species or 
drinking water intake in a USA. Nothing in this mapping, however, 
changes the definition of an USA in this rule.
    RSPA will map USA locations on a state by state basis, beginning 
with the states that have the largest number of liquid pipeline miles. 
RSPA expects to complete the first ten states by the end of the year. 
These states include Texas, Oklahoma, Kansas, Louisiana, Illinois, 
Wyoming, New Mexico, California, Missouri, and Montana. The remaining 
states are expected to be completed by the end of 2001.
    RSPA recognizes that inventories and maps of USAs have to be 
updated on a periodic basis to incorporate new information and 
databases. RSPA intends to update the USA maps every five years, 
contingent on the availability of funding and resources. RSPA will 
review new or revised drinking water and ecological programs and 
databases at that time and will incorporate new databases into the 
computer model created from the final USA definition at that time. RSPA 
will announce in the Federal Register and through other communication 
networks when revised USA maps are available.
    RSPA will also analyze new, revised, or refined drinking water and 
ecological programs every five years to determine if other programs 
should be added to the USA definition. RSPA will propose any revisions 
to the USA definition in a notice of proposed rulemaking.
    3. Create a petitioning process to correct, add, or remove USA 
designations.
    The pipeline safety regulations (49 CFR 190.331) allow interested 
persons to petition the Associate Administrator for Pipeline Safety to 
establish, amend, or repeal a substantive regulation. There is no need 
to create a separate process for USAs.
    4. Use regional, state, and local data sets, not just data sets 
that meet national standards.
    Various technical reviewers and workshop participants recommended 
that RSPA use regional, state, and local data sets when processing the 
computer model created from the USA definition. RSPA uses state 
databases as the primary data source for the USA computer model.
    The drinking water USA computer model relies on data solely 
provided by the states. State aquifer maps are used to determine 
aquifer classifications. State data on the well location, depth, 
source, etc. are used to identify the aquifers used by the wells. 
Source-water and wellhead protection programs are implemented at the 
state and local level.
    The ecological USA computer model uses data from the state Natural 
Heritage Programs (NHP) on rare and endangered species locations. The 
Environmental Sensitivity Index (ESI) and related ecological data sets 
are also used to augment the NHP data in coastal and marine areas. ESI 
data are developed primarily by federal agencies, although some states 
have their own ESI programs (e.g., Texas, Maine, Florida, Alabama). 
Regardless of the managing authority, the content of the ESI data sets 
are derived primarily from state agency sources.
    National programs often provide the guidance for these state-
implemented programs. RSPA considers it important that USAs be defined 
in a consistent manner nationwide. This requires data that conform to 
some common standard. The NHP and ESI data sources both conform to 
published national standards. The fact that they are nationally 
standardized also makes the application of the USA computer model much 
more uniform across states. Attempting to obtain, organize, and 
validate data that are not nationally standardized would require 
significant effort, time, and money well beyond RSPA's limited 
resources. Each additional data set would need to be evaluated for 
consistency and accuracy. Independently evaluating a wide variety of 
local, state, and regional data sets would not be feasible and could 
impede the creation of USA maps for the nation.
    Other local, state, and regional groups may submit their data to 
the appropriate state NHPs. This would assure that their information 
will be considered when revised USA maps are generated in future 
updates. Local, state, and regional groups may also participate in U.S. 
Coast Guard area planning meetings, or they may contact the NOAA 
Scientific Support Coordinator or the appropriate state contact in 
their area so that they can be identified as potential data providers 
when ESI data sets are developed and updated.

Discussion of Comments in Response to NPRM

    In addition to the technical review and workshop comments, RSPA 
received 24 additional comments to the NPRM. Most of these comments 
mirrored those received from the technical reviewers. RSPA received 
comments from ten government agencies (EPA Office of Emergency and 
Remedial Response; EPA Regions 3 and 8; U.S. Department of the 
Interior; U.S. Department of Commerce; U.S. Department of Energy; State 
of Missouri, Department of Natural Resources; State of Wyoming, 
Department of Environmental Quality; Hill Country Underground Water 
Conservation District; and the City of Austin), six advocacy groups 
(The Working Group on Community Right to Know, Environmental Defense, 
Friends of the Aquifer, Fuel Safe Washington, McHenry County Defenders, 
and STOP), two trade associations (American Water Works Association and 
the American Petroleum Institute), three pipeline operators (Equilon, 
Tosco, and BP Explorer), two separate comments from Argonne National 
lab, and one additional member of the public (Ruth Ellen Schelhaus). 
Most commenters expressed support for the proposed rule.

Drinking Water Recommendations

    The following briefly discusses the public comments (those not from 
the technical reviewers or workshop participants) to the drinking water 
portion of the proposed rule that mirrored those received from 
technical reviewers and workshop participants. Our rationale for 
accepting or rejecting these recommendations is discussed in more 
detail in the previous section on technical reviewer comments.
    1. Replace WHPAs with SWPAs. 
    Nine commenters recommended that RSPA replace WHPAs with SWPAs. 
RSPA agrees and has made this change to the final rule.
    2. Replace the Pettyjohn et al. Aquifer Classification Scheme with 
SWPAs. 
    Two commenters recommended that RSPA consider replacing the 
Pettyjohn et al. aquifer classification scheme used in the NPRM with 
SWPAs. Since states will not complete their source water assessments 
until May 2003, RSPA considers the approach proposed in the NPRM to be 
appropriate at this time. RSPA will consider replacing the Pettyjohn et 
al. aquifer classification scheme with completed source water 
assessment data in the future. RSPA will issue a NPRM seeking comment 
on revising the USA definition if we determine the SWPAs are an 
appropriate replacement to the Pettyjohn et al. aquifer classification 
scheme.
    3. Make a preliminary drinking water USA a USA unless it is 
verified that an adequate alternative drinking water source exists. 
Change the adequate alternative drinking water source definition to 
extend the amount of time needed for the backup water source from one 
month to six months for groundwater systems.
    Various commenters recommended that RSPA modify how the model 
processes adequate alternative drinking

[[Page 80539]]

water sources. They stated RSPA should treat a preliminary drinking 
water USA as a USA unless the public water supplier states that an 
adequate alternative drinking water source exists. Commenters also 
recommended that RSPA change the adequate alternative drinking water 
source definition to extend the amount of time needed for the backup 
water source for groundwater systems from one month to six--twelve 
months for groundwater systems. RSPA agrees with these recommendations 
and has incorporated them into the final rule.
    4. Remove the doubling of WHPAs in sole source aquifers.
    Five commenters recommended that RSPA rely on the WHPA analysis 
conducted by the States and not double the WHPAs. RSPA agrees and has 
removed the doubling.
    5. Update the Community Water System definition.
    RSPA agrees and has included EPA's most current definition.
    6. Include sole source aquifers that are karst in nature as USAs. 
    One commenter recommended that RSPA include all sole source 
aquifers that are karst in nature as USAs. RSPA does not agree that the 
entire karst aquifer is unusually sensitive but does agree that the 
recharge areas of these aquifers are. RSPA has included the recharge 
areas of sole source aquifers that are karst in nature as USAs.
    7. Where possible, consider artificial penetrations from abandoned 
wells, injection wells, seismic shot holes, etc.
    One commenter urged us to consider artificial penetrations into the 
aquifer. RSPA agrees that artificial penetration is a concern, but the 
lack of data on the locations of these artificial penetrations makes it 
impossible to consider this factor at the current time. RSPA will 
reconsider revising the USA definition to include this factor when 
better information is available.
    The following discusses comments on drinking water resources 
received to the NPRM that the technical reviewers did not address:
    1. Make all drinking water areas of primary concern USAs. Do not 
use filtering criteria. 
    In the proposed USA definition, drinking water areas of primary 
concern are identified. These areas are a subset of all surface intakes 
and groundwater-based drinking water supplies that provide potable 
water for domestic, commercial, and industrial users. Filtering 
criteria are applied to the areas of primary concern to determine which 
areas are more susceptible to contamination from a hazardous liquid 
release. Proposed filter criteria include the depth and geology of a 
drinking water resource and if the public water system has an adequate 
alternative drinking water supply.
    Eight commenters recommended that RSPA remove the proposed drinking 
water filter criteria and make all drinking water areas of primary 
concern USAs. RSPA does not agree with this recommendation. The 
majority of the technical reviewers and workshop participants agreed 
that certain drinking water resources are more susceptible to permanent 
or long term damage than others. Removing the filter criteria would 
make drinking water resources that have a very low or no probability of 
becoming contaminated from a release USAs.
    2. Remove the adequate alternative drinking water source filter. 
    In the proposed USA definition, drinking water areas of primary 
concern do not become USAs if an adequate alternative drinking water 
source exists. Five commenters recommended that RSPA remove this 
filtering criterion. The commenters stated that these alternatives may 
not always be available, pipeline operators do not have the expertise 
to determine if an alternate source exists, and available water supply 
and demand are subject to dramatic change over time.
    Removing this filter criterion would make all water intakes and 
WHPAs for community water systems and non-transient non-community water 
systems USAs. RSPA does not agree that this filter should be removed. 
Drinking water USAs are areas where a hazardous liquid release could 
represent an imminent threat to human health, due to contamination of 
community drinking water supplies. If an alternate source of drinking 
water is available, there is no immediate threat to human health. A 
community could switch to the alternative source and the alternative 
water source would provide the same water quality for essential uses.
    RSPA will determine if an adequate alternative drinking water 
supply is available by contacting operators of community water supplies 
that have been determined to be preliminary USAs. Pipeline operators 
will not make this determination. RSPA will also re-assess the adequate 
alternative drinking water supplies when USAs maps are updated.
    3. Add industrial water intakes as drinking water USAs.
    One commenter asked us to consider industrial water intakes as 
USAs. RSPA does not agree. Threats to industrial water intakes do not, 
by themselves, pose an imminent threat to human health. Temporary shut-
down of an industrial surface water intake poses more of an economic 
impact than a health impact. While such impacts are real and their 
avoidance is desirable, economic reasons alone do not justify treating 
industrial intakes as an unusually sensitive area.
    4. Include all aquifers as drinking water USAs. 
    One commenter asked us to consider treating all aquifers as USAs. 
RSPA researched the impact of including all aquifers as USAs and 
determined that this addition would make the majority of the United 
States a USA. This would dilute RSPA's and the industry's ability to 
focus additional prevention, mitigation, and response measures on those 
areas most in need of additional protection from a hazardous liquid 
release. In addition, not all aquifers have the ability to be impacted 
by a hazardous liquid release. Some aquifers are so deep or are of such 
geology that a hazardous liquid release could not reach and 
consequently impact the aquifer. Therefore, RSPA does not agree with 
the commenter.
    5. Include the entire aquifer of all sole source aquifers as 
drinking water USAs.
    Two commenters recommended that RSPA include all sole source 
aquifers as drinking water USAs. RSPA does not agree. RSPA researched 
EPA's guidance on sole source aquifers. EPA notes that the ground 
water's vulnerability to contamination can vary considerably within an 
aquifer. Therefore, EPA does not endorse using sole source aquifer 
status as the determining factor in making land use decisions that may 
impact ground water quality. EPA recommends that site-specific 
hydrogeological assessments be considered along with other factors to 
determine the vulnerability of the area to contamination.
    RSPA has followed EPA's guidance. RSPA has used the EPA aquifer 
vulnerability classification of Pettyjohn et al. (1991) to identify 
those ground water wells that are at risk of contamination from a 
pipeline release. RSPA has defined as USAs the SWPA or WHPA around each 
well to represent the USA for the vulnerable aquifers. States designate 
these areas to protect wells from a broad range of chemical 
contaminants. These state delineations consider the hydrogeological 
features important in determining the well's vulnerability to 
contamination. RSPA believes this is the best approach to identify the 
drinking water intakes most susceptible or unusually sensitive to a 
pipeline release.

[[Page 80540]]

    6. Include aquifer recharge zones as drinking water USAs.
    Three commenters recommended that RSPA include aquifer recharge 
zones as drinking water USAs. RSPA does not agree. The recharge zone is 
the entire area contributing to groundwater that may replace water 
drawn from an aquifer, such as by a community water supply. The time 
periods for water (and contaminant) transport in this zone can be very 
long, sometimes on the order of hundreds to thousands of years. RSPA 
believes that the WHPAs and SWPAs are the more appropriate areas to 
focus USAs. When designating WHPAs and SWPAs, states consider the 
ability of contaminants to reach and affect the public water supply 
within 2-5 years.
    RSPA has revised the USA definition to add the recharge zones of 
sole source aquifers in karst areas. Aquifers in karst areas are very 
susceptible to contamination if a hazardous liquid release occurs in 
the area. Sole source aquifers are the sole or primary drinking water 
source for an area and have no adequate backup water source. Because 
these areas can suffer long-term damage from a pipeline release, we 
have included them as USAs.

Ecological Recommendations

    The following briefly discusses the public comments (those not from 
the technical reviewers or workshop participants) to the ecological 
portion of the proposed rule that mirrored those received from 
technical reviewers and workshop participants. Our rationale for 
accepting or rejecting these recommendations is discussed in greater 
detail in the section on the technical experts' comments.
    1. Include all resources RSPA was asked to consider in the federal 
pipeline safety statute as USAs.
    Seven commenters recommended that RSPA include all resources listed 
for consideration in 49 U.S.C. Sec. 60109 as USAs. These resources 
include critical wetlands, riverine or estuarine systems, national 
parks, wilderness areas, wildlife preservation areas or refuges, wild 
and scenic rivers, and critical habitat for threatened and endangered 
species.
    RSPA has not included them. Congress required us to establish 
criteria defining locations where unusually sensitive resources might 
incur permanent or long-term environmental damage in the event of an 
oil spill. Congress added the words ``permanent'' and ``long-term'' 
when it amended the USA identification requirements in 1996. Not all 
areas and resources listed in the statute are subject to permanent or 
long term environmental damage. RSPA believes Congress intended that 
RSPA focus on protecting those areas where additional prevention, 
mitigation, and response measures are most needed. Including all areas 
RSPA was asked to consider in the mandate would divert resources to 
areas that are not susceptible to permanent or long-term damage. All 
areas that are sensitive cannot be defined as ``unusually sensitive'' 
if the expected focusing of attention is to occur. Thus, instead of 
including all listed areas at this time, we decided to focus on the 
drinking water and ecological resources within these areas that would 
likely suffer irreparable harm if affected by a release. Although RSPA 
has not included these other areas in this rulemaking, we will consider 
extending protection to other environmentally sensitive and vital 
resources through future rulemaking.
    2. Include additional species concentration areas, such as 
rookeries and Important Bird Areas.
    Four commenters recommended that RSPA include additional species 
congregation areas, such as migratory, breeding, calving, spawning, and 
nursery areas. RSPA researched additional species aggregation and 
concentration areas and found standard definitions, classifications, 
and databases do not exist or are not currently in a format that would 
support their inclusion in the USA model. Two programs that RSPA will 
consider in the future are the colonial waterbird nesting sites and 
Important Bird Areas.
    3. Add rare ecological communities (habitats).
    Five commenters recommended that RSPA add rare ecological 
communities (habitats) to the USA definition. RSPA agrees and has 
revised the final rule to add these resources. The natural community 
data will be treated the same as the rare and endangered species data, 
in that critically imperiled and imperiled natural communities will be 
USA candidates and filtering criteria will be applied.
    4. Make species that are aquatic or aquatic dependent and species 
that are terrestrial and have a limited range USAs.
    One commenter recommended that RSPA modify the proposed rule to 
increase species representation by adding all aquatic or aquatic 
dependent species and terrestrial species with a limited ranges as 
USAs. These species are more susceptible to permanent or long-term 
damage since they are less likely or unable to avoid or leave an 
impacted area. These species are more likely to have all or a large 
part of the area they occupy or use as habitat or food sources 
disturbed, impacted, or destroyed during a spill. RSPA agrees and has 
added these species as USAs.
    5. Change multi-species protection areas (MSPAs) from three 
overlapping species to two overlapping species.
    Three commenters recommended that RSPA modify the NPRM to increase 
species representation by changing the MSPAs from three overlapping 
species to two overlapping species. RSPA tested this change and found 
that the representation statistics improved when we added aquatic, 
aquatic dependent, and limited terrestrial species as USAs. Therefore, 
RSPA decided to include the aquatic, aquatic dependent, and limited 
terrestrial species as USAs and did not change MSPAs from three 
overlapping species to two.
    6. Add species and ecological community occurrences that are in the 
best condition and are therefore the most viable, as identified by The 
Natural Heritage Program's element occurrence rank (EORANK) or some 
other measure.
    Three commenters recommended that RSPA include rare species and 
ecological communities that are in the best condition and are therefore 
the most viable as USAs. RSPA has made this change to the final rule.
    7. Include only the occupied habitat for terrestrial species with 
large ranges.
    Three commenters recommended that RSPA include only those areas 
designated as being occupied for terrestrial species that have large 
ranges. This concept is already incorporated into the computer model 
created from the proposed USA definition.
    8. Include state listed threatened and endangered species and state 
priorities.
    Seven commenters recommended that RSPA include state listed 
threatened and endangered species and resources important to the state. 
RSPA considered including these species and resources, but state 
listings do not always reflect the nationwide, or range-wide, abundance 
of a species. State rankings and listings can also be highly variable 
due to differences among states in ranking and listing procedures and 
regulations. For these reasons, RSPA does not agree that these 
resources should be included.
    The following discusses comments on ecological resources received 
to the NPRM that were not addressed by the technical reviewers:
    1. Include all environmentally sensitive areas.
    Three commenters recommended that RSPA make all environmentally 
sensitive areas USAs. RSPA does not agree. Environmentally sensitive 
areas are part of the USA definition and identification process in that 
we

[[Page 80541]]

considered and evaluated these areas to determine USA candidates. Not 
all environmentally sensitive areas are unusually sensitive. Making all 
environmentally sensitive areas USAs would divert prevention, 
mitigation and response resources to areas that are not susceptible to 
permanent or long-term damage. To do so would not be consistent with 
the statutory mandate in 49 U.S.C. 60109.
    2. Include all resources in the oil spill Area Contingency Plans 
(ACPs) and areas subject to soil erosion or subsidence.
    One commenter recommended that RSPA include all ACP resources as 
USAs. RSPA does not agree and has not included these areas in the final 
definition. Ecological resources identified in the ACPs comprise all 
environmentally sensitive areas. Including all environmentally 
sensitive areas would divert prevention, mitigation and response 
resources to areas that are not susceptible to permanent or long-term 
damage. This final rule does not decrease the status of any ecological 
resource identified in the ACPs, nor does it decrease the amount of 
protection afforded these areas under the Oil Pollution Act of 1990.
    The commenter also recommended that RSPA include all areas subject 
to soil erosion and subsidence. Soil erosion and subsidence are risk 
assessment factors that are related to pipeline vulnerability (the 
likelihood of a pipeline release). They have no direct relationship to 
ecological sensitivity (how sensitive a resource is to a disturbance or 
impact).
    3. Make all ecological candidates USAs. Do not use filtering 
criteria.
    Six commenters recommended that RSPA remove the filtering criteria 
used to identify ecological USAs. The majority of the technical 
reviewers and workshop participants agreed that certain species are 
more susceptible to permanent or long term damage. Likewise, most 
technical reviewers and workshop participants accepted that all 
individual occurrences of all candidate species do not need to be USAs. 
Therefore, RSPA will continue to use filter criteria.
    RSPA has not filtered imperiled species since these species are 
closest to the brink of extinction. RSPA has also not filtered aquatic, 
aquatic dependent, or limited terrestrial species since they are the 
most vulnerable and sensitive to spill impacts. In addition, the most 
viable species occurrences are not filtered. This ensures that the best 
examples of each candidate species are protected as USAs. Finally, 
clusters or ``hot spots'' of species vulnerable to extinction are not 
filtered. The multi-species USAs provide protection to unique areas 
where groups of species vulnerable to extinction co-occur.
    4. Include vulnerable species as USAs or USA candidates.
    Three commenters recommended that RSPA include vulnerable species 
as USAs. Vulnerable species are defined by The Nature Conservancy as 
rare species, typically with 21 to 100 occurrences or 3,000 to 10,000 
individuals.
    RSPA considered including vulnerable species as USA candidates. 
RSPA held detailed discussions with experts in the field of 
conservation biology, including representatives from The Nature 
Conservancy. Through these conversations, we decided that USA 
candidates should be limited to critically imperiled and imperiled 
species. If a pipeline release impacts a critically imperiled or 
imperiled species, it could eliminate 5% to 100% of the known 
occurrences for that species. If a pipeline release impacts a 
vulnerable species, the largest impact would be an elimination of less 
than 5% of the known occurrences for that species. Vulnerable species 
are picked up in part by the USA definition since several of these 
species are also federally listed threatened or endangered species. 
RSPA will consider including vulnerable species and other sensitive 
resources in a future rulemaking.

Miscellaneous Recommendations

    The following briefly discusses the public comments (those not from 
the technical reviewers or workshop participants) that mirrored those 
received from technical reviewers and workshop participants. Our 
rationale for accepting or rejecting these recommendations is discussed 
in more detail in the previous section on technical reviewer comments.
    1. Include cultural and Indian tribal concerns, economic, and 
recreational areas as USAs.
    Eleven additional commenters recommended that RSPA include the 
above resources as USAs. The proposed definition focused on drinking 
water and ecological resources that needed additional protection. We 
would not want to now include other areas not proposed without an 
opportunity for public comment and technical review. RSPA intends to 
define other sensitive resource areas that need additional protection 
in a future rulemaking and will consider cultural and Indian tribal 
concerns, economic and recreational areas as a part of this process.
    2. Update USAs on a periodic basis, possibly every 4-5 years.
    Six commenters stated that USAs need to be updated on a regular 
basis or they would become obsolete over time. RSPA agrees. RSPA 
intends to identify the locations of USAs and to map these areas. RSPA 
will update the USA maps every five years, contingent on the 
availability of funding and resources. RSPA will review new or revised 
drinking water and ecological programs and databases at that time and 
will incorporate new databases into the computer model created from the 
final USA definition at that time. RSPA will announce in the Federal 
Register and through communication networks when revised USA maps are 
available.
    RSPA will also analyze new, revised, or refined drinking water and 
ecological programs every five years to determine if other programs 
should be added to the USA definition. RSPA will propose any revisions 
to the USA definition in a notice of proposed rulemaking.
    3. Create a petitioning process to correct, add, or remove USA 
designations.
    Eight commenters recommended that RSPA create a petitioning process 
to add, modify, or appeal a USA designation. The pipeline safety 
regulations (49 CFR 190.331) allow interested persons to petition the 
Associate Administrator for Pipeline Safety to establish, amend, or 
repeal a substantive regulation. There is no need to create a separate 
process for USAs.
    4. Use regional, state, and local data sets, not just data sets 
that meet national standards.
    Two commenters recommended that RSPA use regional, state, and local 
data sets when creating USAs. RSPA agrees and uses state databases as 
the primary data source for the USA computer model created from the 
proposed definition. However, RSPA considers it important that USAs be 
defined in a consistent manner nationwide. This requires data that 
conform to some common standard. Attempting to obtain, organize, and 
validate data that are not nationally standardized would require 
significant effort, time, and money well beyond RSPA's limited 
resources. Each additional data set would need to be evaluated for 
consistency and accuracy. Independently evaluating a wide variety of 
local, state, and regional data sets would not be feasible and could 
impede the creation of USA maps for the nation.
    The following discusses miscellaneous comments received to the NPRM 
that technical reviewers did not address:
    1. Consider short-term damage caused by a release.
    Seven commenters recommended that RSPA consider the short-term 
effects of

[[Page 80542]]

a hazardous liquid pipeline release. Several of these commenters 
recommended that RSPA specifically consider the short term effects of a 
release on waterways and fish. Short term effects are those that are 
reversible or can be mitigated by interim actions.
    RSPA does not agree that short term effects should be a major 
consideration when designating USAs. However, RSPA has placed high 
priority on protecting human health, even in the short term, in 
defining an adequate alternative drinking water source as one that must 
be readily available, of the same water quality, and must be able to 
supply the community for at least a one month period of time for 
surface water intakes and for at least six months for ground water 
wells. In addition, RSPA has added all species vulnerable to extinction 
that rely on water or are terrestrial and can not move far. Including 
all resources that could suffer short-term injuries would cover the 
majority of the U.S.
    2. RSPA should designate and map USAs.
    Four commenters stated that RSPA should designate and map USAs. As 
mentioned above, RSPA intends to identify, designate, and map the 
locations of USAs through a comprehensive collection and analysis of 
drinking water and ecological resource data, contingent on the 
availability of funding and resources. These areas will be mapped using 
the National Pipeline Mapping System. Operators, other government 
agencies and the public will have access to these maps through the 
Internet. Individuals will be able to view USAs nationally or by state, 
county, zip code, or zooming in or out of a particular area. Operators 
will then be able to determine which areas of their pipeline could 
impact USAs. Operators may need to contact resource agencies to obtain 
additional information on a particular species or drinking water intake 
in a USA.

Discussion of Comments and Modifications Received From the 
Technical Hazardous Liquid Pipeline Safety Standards Committee

    On May 3-4, 2000, the Technical Hazardous Liquid Pipeline Safety 
Standards Committee (THLPSSC) met to discuss and vote on the USA 
proposed rule. The THLPSSC is RSPA's statutory advisory committee for 
hazardous liquid pipeline safety. The Committee has 15 members 
representing industry, government, and the public. Each proposed 
hazardous liquid pipeline safety standard must be submitted to the 
THLPSSC for the Committee's view as to its technical feasibility, 
reasonableness, cost-effectiveness, and practicability. During the May 
meeting, the THLPSSC deferred from voting on the USA proposed rule 
stating the members of the committee would like the results of the 
technical review before voting.
    On September 11, 2000, the THLPSSC again convened by teleconference 
to discuss and vote on the proposed rule. A transcript of the meeting 
is in the docket. Nine Committee members voted the proposed rule and 
its regulatory analysis as technically feasible, reasonable, cost-
effective, and practical, with modifications. One THLPSSC member 
abstained from the vote. Most of the suggested modifications mirrored 
those received from the technical reviewers. RSPA has added to the 
final rule all of the THLPSSC's recommended changes that passed a 
majority vote. The following discusses each recommended change:
    1. Modify the NPRM to add the most viable USA candidate occurrences 
(critically imperiled, imperiled, threatened and endangered, and 
depleted marine mammals occurrences) as USAs.
    The THLPSSC voted 10 to 1 in favor of this recommendation. The 
committee member that voted against the proposal stated the vote was 
negative because she would be voting yes on a motion to include all USA 
candidates as USAs.
    2. Modify the NPRM to add rare communities.
    The THLPSSC voted unanimously in favor of this recommendation.
    3. Modify the NPRM to make the USA candidate species that are 
aquatic or aquatic dependent or are terrestrial and have a limited 
range USAs.
    The THLPSSC voted 7 to 4 in favor of this recommendation. One 
THLPSSC member abstained from the vote.
    4. Include in the preamble to the final rule that RSPA intends to 
consider in a future rulemaking the inclusion of vulnerable species as 
USAs.
    The THLPSSC voted unanimously for RSPA to add to the preamble of 
this final rule that we will consider adding vulnerable species as USAs 
in a future rulemaking.
    5. Replace WHPAs with SWPAs.
    The THLPSSC voted unanimously in favor of this recommendation.
    6. Change the adequate alternative drinking water source definition 
to extend the amount of time needed for the backup water source from 
one month to six months for groundwater systems. Make preliminary 
drinking water USAs interim USAs when it can not be verified that an 
adequate alternative drinking water source exists. Interim USAs would 
be treated like all other USAs and this would give a quality code to 
individuals looking at the data.
    The THLPSSC voted 10 to 2 in favor of this recommendation. One 
THLPSSC member abstained from the vote. One voter against the proposal 
stated the vote was negative because she would be voting for the 
removal of the adequate alternative drinking water filter later.
    7. Modify the adequate alternative drinking water source definition 
to include the ability of the alternative source to provide fire 
fighting capabilities.
    The THLPSSC voted 6 to 5 in favor of this recommendation.
    8. Remove the doubling of WHPAs in sole source aquifers.
    The THLPSSC voted unanimously in favor of this recommendation.
    9. Make the recharge areas of sole source aquifers that are karst 
in nature USAs.
    The THLPSSC voted unanimously in favor of this recommendation.
    In addition to the THLPSSC's recommendations that passed a majority 
vote, the Committee also discussed other recommendations. These include 
the following:
     Include colonial waterbird data, which are additional 
species concentration areas,
     Remove the USA filtering criteria,
     Create a simultaneous rule that would cover cultural and 
other natural resource areas,
     Change the adequate alternative drinking water source 
definition to extend the amount of time needed for the backup water 
source from one month to six months for surface water systems,
     Make preliminary drinking water USAs final USAs when it 
can not be verified that an adequate alternative drinking water source 
exists.
     Remove the adequate alternative drinking water source 
filter criterion, and
     Make all sole source aquifer recharge areas USAs.

    None of these recommendations passed a majority vote and RSPA has 
not included them in this final rule.

Resources Not Included in the Final Rule

    There are many other resources that government agencies, 
environmental organizations, and others consider sensitive to a 
hazardous liquid pipeline release. These include national parks, 
wetlands, wildlife preservation areas, refuges, fish hatcheries, 
vulnerable species, cultural resources, recreation areas, and economic 
resource areas. RSPA currently protects these resources

[[Page 80543]]

under 49 CFR parts 194 and 195. RSPA will consider extending protection 
to other environmentally sensitive and vital resources through future 
rulemaking and will consider the above listed resources as a part of 
this process.

Mapping of USAs

    RSPA intends to identify the locations of USAs through a 
comprehensive collection and analysis of drinking water and ecological 
resource data, contingent on the availability of funding and resources. 
These areas will be mapped using the National Pipeline Mapping System. 
Operators, other government agencies and the public will have access to 
these maps through the internet. Individuals will be able to view USAs 
and other high consequence areas nationally or by state, county, zip 
code, or zooming in or out of a particular area. Operators will then be 
able to determine which areas of their pipeline have the ability to 
impact USAs. Operators may need to contact resource agencies to obtain 
additional information on a particular species or drinking water intake 
in a USA.
    As additional ecological and drinking water resource information 
becomes available, and RSPA identifies and locates additional USAS, the 
operator has the responsibility to apply this new information in its 
integrity management program.
    RSPA will map USA locations on a state by state basis, beginning 
with the states that have the largest number of liquid pipeline miles. 
RSPA expects to complete the first ten states by the end of the year. 
These states include Texas, Oklahoma, Kansas, Louisiana, Illinois, 
Wyoming, New Mexico, California, Missouri, and Montana. The remaining 
states are expected to be completed by the end of 2001.
    RSPA recognizes that inventories and maps of USAs have to be 
updated on a periodic basis to incorporate new information and 
databases. RSPA intends to update the USA maps at least every five 
years, contingent on the availability of funding and resources. RSPA 
will review new or revised drinking water and ecological programs and 
databases and will incorporate new databases into the computer model 
created from the final USA definition. RSPA will announce in the 
Federal Register and through other communication networks, including 
during inspections, when revised USA maps are available.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Policies and Procedures

    The Department of Transportation considers this action to be a 
significant regulatory action under section 3(f) of Executive Order 
12866 (58 FR 51735; October 4, 1993). Therefore, it was forwarded to 
the Office of Management and Budget. This final rule is significant 
under Department of Transportation's regulatory policies and procedures 
(44 FR 11034; February 26, 1979) because of its significant public and 
government interest.
    This final rule has no cost impact on the pipeline industry or the 
public because it is only a definition.
    The USA definition is used in the ``Pipeline Safety: Pipeline 
Integrity Management in High Consequence Areas (Hazardous Liquid 
Operators with 500 or more miles of pipeline)'' (65 FR 75378; December 
1, 2000) final rule and potentially other current or future 
regulations. A cost-benefit analysis has been prepared for the 
Integrity Management rulemaking. RSPA will perform a cost-benefit 
analysis on any other rulemakings that require operators to take 
specific actions on pipelines that could affect USAs.

B. Regulatory Flexibility Act

    This final rule will not impose additional requirements on pipeline 
operators, including small entities that operate regulated pipelines. 
Based on the above information showing that there is no economic impact 
of this rulemaking, I certify, pursuant to Section 605 of the 
Regulatory Flexibility Act (5 U.S.C. 605), that this final rulemaking 
would not have a significant economic impact on a substantial number of 
small entities.

C. Federalism Assessment

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not adopt any regulation that:
    (1) has substantial direct effects on the States, the relationship 
between the national government and the States, or the distribution of 
power and responsibilities among the various levels of government;
    (2) imposes substantial direct compliance costs on State and local 
governments; or
    (3) preempts state law.
    Therefore, the consultation and funding requirements of Executive 
Order 13132 (64 FR 43255: August 10, 1999) do not apply. Nevertheless, 
RSPA worked with state government representatives from Texas, 
California, and Louisiana to review our USA pilot test results. RSPA 
also conducted an aggressive communication plan to notify interested 
parties, including states, of our USA work.

D. Executive Order 13084

    The final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084, ``Consultation and 
Coordination with Indian Tribal Governments.'' Because the final rule 
does not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13084 do not apply.

E. Paperwork Reduction Act

    On December 30, 1999 (64 FR 73463) RSPA published the USA NPRM. In 
the NPRM, RSPA stated ``This proposed rulemaking contains no 
information collection that is subject to review by OMB under the 
Paperwork Reduction Act of 1995.'' No comments were received on this 
issue. Therefore, RSPA concludes that this final rule contains no 
paperwork burden and is not subject to OMB review under the Paperwork 
Reduction Act of 1995.
    This final rule, like the proposed rule, is simply a definition. 
The USA definition is used in the ``Pipeline Safety: Pipeline Integrity 
Management in High Consequence Areas (Hazardous Liquid Operators with 
500 or more miles of pipeline)'' (65 FR 75378; December 1, 2000) final 
rule and potentially other current or future regulations. A paperwork 
burden analysis has been prepared for the Integrity Management 
rulemaking. RSPA will perform a paperwork burden analysis on any other 
rulemakings that require operators to take specific actions on 
pipelines that could affect USAs.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more to either State, local, or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

G. National Environmental Policy Act

    RSPA has analyzed the final rule defining USAs in accordance with 
section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 
Section 4332), the Council on

[[Page 80544]]

Environmental Quality regulations (40 CFR Parts 1500-1508), and DOT 
Order 5610.1D. An Environmental Assessment was prepared for the initial 
USA definitions proposed in a Notice of Proposed Rulemaking (64 FR 
73464). RSPA did not receive any public comment on the Environmental 
Assessment. We have revised the Environmental Assessment to evaluate 
the USA definition changes made in response to public and other agency 
comments. Both the Environmental Assessment and modifications are 
available in the Docket.
    The Environmental Assessment provides sufficient evidence to 
determine that the provisions of the final rule are expected to have no 
significant impact on the environment. Therefore, in accordance with 40 
CFR Section 1508.13, RSPA has made a Finding of No Significant Impact 
(FONSI) for the final rule defining USAs. The FONSI is available in the 
Docket. The basis for arriving at this conclusion is summarized below.
    The final rule establishes definitions delineating how specific 
drinking water and ecological resources that are unusually sensitive to 
environmental damage will be identified. These definitions alone do not 
pose any new requirements on pipeline operators, and thus have no 
impact on the environment. However, in the Environmental Assessment, 
RSPA examined current and potential future regulations to project what 
future environmental impacts might be expected.
    RSPA has recently published a final rule on Pipeline Integrity 
Management in High Consequence Areas (65 FR 75378; December 1, 2000). 
This rule establishes new requirements for operators operating 500 or 
more miles of hazardous liquid pipeline to provide additional 
protection for high consequence areas, which include USAs. This rule 
specifies new requirements to assess, evaluate, repair, and validate 
the integrity of pipelines that could affect high consequence areas. As 
part of this rulemaking, RSPA prepared an Environmental Assessment to 
understand the impacts of these requirements (available in Docket No. 
99-6355). RSPA concluded that the combined impacts of the integrity 
management rule provisions to protect high consequence areas will 
result in positive environmental impacts. The number of incidents and 
the environmental damage from failures in and near high consequence 
areas are likely to be reduced. However, from a national perspective, 
the impact is not expected to be significant for the pipeline operators 
covered by the final rule. RSPA has issued a FONSI for the integrity 
management rule (also available on the Docket).
    RSPA also examined other regulatory requirements which could be 
impacted by the definition and identifications of USAs. These are:
     Integrity Management in High Consequence Areas for 
Operators Operating less than 500 Miles of Pipeline. This rule is 
expected to be similar to the new rule for larger pipeline operators 
described above.
     Risk-based Alternative to Pressure Testing Older Hazardous 
Liquid and Carbon Dioxide Pipelines (49 CFR 195.303). Environmental 
sensitivity is a risk factor to be considered in setting pressure test 
schedules. RSPA may clarify that USAs must be considered in identifying 
areas of environmental sensitivity.
     Response Plans for Onshore Oil Pipelines (49 CFR 194). 
Areas of environmental importance are to be addressed in response 
plans. RSPA may amend the definition of environmental importance to 
include USAs. Area Committees and OPS may use the USA definition in 
reviewing and validating response plans and response plan revisions.
     Jurisdiction of Rural Low Stress Pipelines. Currently 
pipelines operating at low stress in rural areas are exempt from 
compliance with 49 CFR 195 requirements. RSPA may consider removing 
this exemption for low stress lines that could impact USAs.
    RSPA's initial assessment is that each of the above changes would 
have some positive environmental impacts in reducing the likelihood of 
pipeline spills and/or minimizing the consequences should a spill 
occur. However, without specification of the particular regulatory 
requirements, projections of the expected benefits are highly 
uncertain. When RSPA establishes specific requirements in these area, 
Environmental Assessments will be performed to fully understand the 
impacts and guide decision-making.

List of Subjects in 49 CFR Part 195

    Anhydrous ammonia, Carbon dioxide, Hazardous liquids, Petroleum, 
Pipeline safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, RSPA hereby amends 49 CFR part 
195 as follows:

PART 195--[AMENDED]

    1. The authority citation for part 195 continues to read as 
follows:

    Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118; 
and 49 CFR 1.53.


    2. Section 195.2 is amended by adding a new definition in 
alphabetical order to read as follows:


Sec. 195.2  Definitions.

* * * * *
    Unusually sensitive area (USA) means a drinking water or ecological 
resource area that is unusually sensitive to environmental damage from 
a hazardous liquid pipeline release, as identified under Sec. 195.6.

    3. Section 195.6 is added to read as follows:


Sec. 195.6  Unusually Sensitive Areas (USAs).

    As used in this part, a USA means a drinking water or ecological 
resource area that is unusually sensitive to environmental damage from 
a hazardous liquid pipeline release.
    (a) An USA drinking water resource is:
    (1) The water intake for a Community Water System (CWS) or a Non-
transient Non-community Water System (NTNCWS) that obtains its water 
supply primarily from a surface water source and does not have an 
adequate alternative drinking water source;
    (2) The Source Water Protection Area (SWPA) for a CWS or a NTNCWS 
that obtains its water supply from a Class I or Class IIA aquifer and 
does not have an adequate alternative drinking water source. Where a 
state has not yet identified the SWPA, the Wellhead Protection Area 
(WHPA) will be used until the state has identified the SWPA; or
    (3) The sole source aquifer recharge area where the sole source 
aquifer is a karst aquifer in nature.
    (b) An USA ecological resource is:
    (1) An area containing a critically imperiled species or ecological 
community;
    (2) A multi-species assemblage area;
    (3) A migratory waterbird concentration area;
    (4) An area containing an imperiled species, threatened or 
endangered species, depleted marine mammal species, or an imperiled 
ecological community where the species or community is aquatic, aquatic 
dependent, or terrestrial with a limited range; or
    (5) An area containing an imperiled species, threatened or 
endangered species, depleted marine mammal species, or imperiled 
ecological community where the species or community occurrence is 
considered to be one of the most viable, highest quality, or in the 
best condition, as

[[Page 80545]]

identified by an element occurrence ranking (EORANK) of A (excellent 
quality) or B (good quality).
    (c) As used in this part--
    Adequate Alternative Drinking Water Source means a source of water 
that currently exists, can be used almost immediately with a minimal 
amount of effort and cost, involves no decline in water quality, and 
will meet the consumptive, hygiene, and fire fighting requirements of 
the existing population of impacted customers for at least one month 
for a surface water source of water and at least six months for a 
groundwater source.
    Aquatic or Aquatic Dependent Species or Community means a species 
or community that primarily occurs in aquatic, marine, or wetland 
habitats, as well as species that may use terrestrial habitats during 
all or some portion of their life cycle, but that are still closely 
associated with or dependent upon aquatic, marine, or wetland habitats 
for some critical component or portion of their life-history (i.e., 
reproduction, rearing and development, feeding, etc).
    Class I Aquifer means an aquifer that is surficial or shallow, 
permeable, and is highly vulnerable to contamination. Class I aquifers 
include:
    (1) Unconsolidated Aquifers (Class Ia) that consist of surficial, 
unconsolidated, and permeable alluvial, terrace, outwash, beach, dune 
and other similar deposits. These aquifers generally contain layers of 
sand and gravel that, commonly, are interbedded to some degree with 
silt and clay. Not all Class Ia aquifers are important water-bearing 
units, but they are likely to be both permeable and vulnerable. The 
only natural protection of these aquifers is the thickness of the 
unsaturated zone and the presence of fine-grained material;
    (2) Soluble and Fractured Bedrock Aquifers (Class Ib). Lithologies 
in this class include limestone, dolomite, and, locally, evaporitic 
units that contain documented karst features or solution channels, 
regardless of size. Generally these aquifers have a wide range of 
permeability. Also included in this class are sedimentary strata, and 
metamorphic and igneous (intrusive and extrusive) rocks that are 
significantly faulted, fractured, or jointed. In all cases groundwater 
movement is largely controlled by secondary openings. Well yields range 
widely, but the important feature is the potential for rapid vertical 
and lateral ground water movement along preferred pathways, which 
result in a high degree of vulnerability;
    (3) Semiconsolidated Aquifers (Class Ic) that generally contain 
poorly to moderately indurated sand and gravel that is interbedded with 
clay and silt. This group is intermediate to the unconsolidated and 
consolidated end members. These systems are common in the Tertiary age 
rocks that are exposed throughout the Gulf and Atlantic coastal states. 
Semiconsolidated conditions also arise from the presence of 
intercalated clay and caliche within primarily unconsolidated to poorly 
consolidated units, such as occurs in parts of the High Plains Aquifer; 
or
    (4) Covered Aquifers (Class Id) that are any Class I aquifer 
overlain by less than 50 feet of low permeability, unconsolidated 
material, such as glacial till, lacustrian, and loess deposits.
    Class IIa aquifer means a Higher Yield Bedrock Aquifer that is 
consolidated and is moderately vulnerable to contamination. These 
aquifers generally consist of fairly permeable sandstone or 
conglomerate that contain lesser amounts of interbedded fine grained 
clastics (shale, siltstone, mudstone) and occasionally carbonate units. 
In general, well yields must exceed 50 gallons per minute to be 
included in this class. Local fracturing may contribute to the dominant 
primary porosity and permeability of these systems.
    Community Water System (CWS) means a public water system that 
serves at least 15 service connections used by year-round residents of 
the area or regularly serves at least 25 year-round residents.
    Critically imperiled species or ecological community (habitat) 
means an animal or plant species or an ecological community of extreme 
rarity, based on The Nature Conservancy's Global Conservation Status 
Rank. There are generally 5 or fewer occurrences, or very few remaining 
individuals (less than 1,000) or acres (less than 2,000). These species 
and ecological communities are extremely vulnerable to extinction due 
to some natural or man-made factor.
    Depleted marine mammal species means a species that has been 
identified and is protected under the Marine Mammal Protection Act of 
1972, as amended (MMPA) (16 U.S.C. 1361 et seq.). The term ``depleted'' 
refers to marine mammal species that are listed as threatened or 
endangered, or are below their optimum sustainable populations (16 
U.S.C. 1362). The term ``marine mammal'' means ``any mammal which is 
morphologically adapted to the marine environment (including sea otters 
and members of the orders Sirenia, Pinnipedia, and Cetacea), or 
primarily inhabits the marine environment (such as the polar bear)'' 
(16 U.S.C. 1362). The order Sirenia includes manatees, the order 
Pinnipedia includes seals, sea lions, and walruses, and the order 
Cetacea includes dolphins, porpoises, and whales.
    Ecological community means an interacting assemblage of plants and 
animals that recur under similar environmental conditions across the 
landscape.
    Element occurrence rank (EORANK) means the condition or viability 
of a species or ecological community occurrence, based on a 
population's size, condition, and landscape context. EORANKs are 
assigned by the Natural Heritage Programs. An EORANK of A means an 
excellent quality and an EORANK of B means good quality.
    Imperiled species or ecological community (habitat) means a rare 
species or ecological community, based on The Nature Conservancy's 
Global Conservation Status Rank. There are generally 6 to 20 
occurrences, or few remaining individuals (1,000 to 3,000) or acres 
(2,000 to 10,000). These species and ecological communities are 
vulnerable to extinction due to some natural or man-made factor.
    Karst aquifer means an aquifer that is composed of limestone or 
dolomite where the porosity is derived from connected solution 
cavities. Karst aquifers are often cavernous with high rates of flow.
    Migratory waterbird concentration area means a designated Ramsar 
site or a Western Hemisphere Shorebird Reserve Network site.
    Multi-species assemblage area means an area where three or more 
different critically imperiled or imperiled species or ecological 
communities, threatened or endangered species, depleted marine mammals, 
or migratory waterbird concentrations co-occur.
    Non-transient Non-community Water System (NTNCWS) means a public 
water system that regularly serves at least 25 of the same persons over 
six months per year. Examples of these systems include schools, 
factories, and hospitals that have their own water supplies.
    Public Water System (PWS) means a system that provides the public 
water for human consumption through pipes or other constructed 
conveyances, if such system has at least 15 service connections or 
regularly serves an average of at least 25 individuals daily at least 
60 days out of the year. These systems include the sources of the water 
supplies--i.e., surface or ground. PWS can be community, non-transient 
non-community, or transient non-community systems.
    Ramsar site means a site that has been designated under The 
Convention on Wetlands of International Importance

[[Page 80546]]

Especially as Waterfowl Habitat program. Ramsar sites are globally 
critical wetland areas that support migratory waterfowl. These include 
wetland areas that regularly support 20,000 waterfowl; wetland areas 
that regularly support substantial numbers of individuals from 
particular groups of waterfowl, indicative of wetland values, 
productivity, or diversity; and wetland areas that regularly support 1% 
of the individuals in a population of one species or subspecies of 
waterfowl.
    Sole source aquifer (SSA) means an area designated by the U.S. 
Environmental Protection Agency under the Sole Source Aquifer program 
as the ``sole or principal'' source of drinking water for an area. Such 
designations are made if the aquifer's ground water supplies 50% or 
more of the drinking water for an area, and if that aquifer were to 
become contaminated, it would pose a public health hazard. A sole 
source aquifer that is karst in nature is one composed of limestone 
where the porosity is derived from connected solution cavities. They 
are often cavernous, with high rates of flow.
    Source Water Protection Area (SWPA) means the area delineated by 
the state for a public water supply system (PWS) or including numerous 
PWSs, whether the source is ground water or surface water or both, as 
part of the state source water assessment program (SWAP) approved by 
EPA under section 1453 of the Safe Drinking Water Act.
    Species means species, subspecies, population stocks, or distinct 
vertebrate populations.
    Terrestrial ecological community with a limited range means a non-
aquatic or non-aquatic dependent ecological community that covers less 
than five (5) acres.
    Terrestrial species with a limited range means a non-aquatic or 
non-aquatic dependent animal or plant species that has a range of no 
more than five (5) acres.
    Threatened and endangered species (T&E) means an animal or plant 
species that has been listed and is protected under the Endangered 
Species Act of 1973, as amended (ESA73) (16 U.S.C. 1531 et seq.). 
``Endangered species'' is defined as ``any species which is in danger 
of extinction throughout all or a significant portion of its range'' 
(16 U.S.C. 1532). ``Threatened species'' is defined as ``any species 
which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range'' (16 
U.S.C. 1532).
    Transient Non-community Water System (TNCWS) means a public water 
system that does not regularly serve at least 25 of the same persons 
over six months per year. This type of water system serves a transient 
population found at rest stops, campgrounds, restaurants, and parks 
with their own source of water.
    Wellhead Protection Area (WHPA) means the surface and subsurface 
area surrounding a well or well field that supplies a public water 
system through which contaminants are likely to pass and eventually 
reach the water well or well field.
    Western Hemisphere Shorebird Reserve Network (WHSRN) site means an 
area that contains migratory shorebird concentrations and has been 
designated as a hemispheric reserve, international reserve, regional 
reserve, or endangered species reserve. Hemispheric reserves host at 
least 500,000 shorebirds annually or 30% of a species flyway 
population. International reserves host 100,000 shorebirds annually or 
15% of a species flyway population. Regional reserves host 20,000 
shorebirds annually or 5% of a species flyway population. Endangered 
species reserves are critical to the survival of endangered species and 
no minimum number of birds is required.

    Issued in Washington, DC December 8, 2000.
Kelley S. Coyner,
Administrator.
[FR Doc. 00-31756 Filed 12-20-00; 8:45 am]
BILLING CODE 4910-60-P