[Federal Register Volume 67, Number 49 (Wednesday, March 13, 2002)]
[Rules and Regulations]
[Pages 11247-11248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6064]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7157-1]


Withdrawal of the Federal Designated Use for Shields Gulch in 
Idaho

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: In July 1997, EPA promulgated new use designations for five 
water bodies in the State of Idaho, including the designation of cold 
water biota for Shields Gulch. On March 14, 2000 the U.S. District 
Court for the District of Idaho vacated and remanded that portion of 
the EPA rule designating Shields Gulch for cold water biota uses to the 
EPA for further consideration. To conform with the U.S. District Court 
order, EPA is withdrawing the cold water biota designated use for 
Shields Gulch.

DATES: This rule is effective March 13, 2002.

ADDRESSES: The administrative record for the Federal use designations 
for surface waters of Idaho is available for public inspection at EPA 
Region 10, Office of Water, 1200 Sixth Avenue, Seattle, Washington 
98101 during normal business hours of 8 a.m. to 4:30 p.m.

FOR FURTHER INFORMATION CONTACT: Robert Van Brunt at EPA Headquarters, 
Office of Water (4305), 1200 Pennsylvania Ave NW., Washington, DC 20460 
(tel: 202-260-2630, fax 202-260-9830) or e-mail [email protected] 
or Lisa Macchio at EPA Region 10, Office of Water, 1200 Sixth Avenue, 
Seattle, Washington 98101 (tel: 206-553-1834, fax 206-553-0165) or e-
mail [email protected].

SUPPLEMENTARY INFORMATION:

Potentially Affected Entities

    Citizens concerned with water quality in Idaho may be interested in 
this rulemaking. Entities discharging pollutants to Shields Gulch, its 
tributaries, and waters they flow into could be affected by this 
rulemaking since water quality standards are used in determining NPDES 
permit limits. Currently, we are not aware of any entities discharging 
pollutants to Shields Gulch, however, potentially affected categories 
and entities could include:

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                                            Examples of potentially
               Category                        affected entities
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Industry..............................  Industries discharging
                                         pollutants to Shields Gulch,
                                         its tributaries, and waters
                                         they flow into.
Federal, State, Tribal or local         Publicly-owned treatment works
 governments.                            discharging pollutants to
                                         Shields Gulch, its
                                         tributaries, and waters they
                                         flow into.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be potentially affected 
by this action. This table lists the types of entities that EPA is now 
aware could potentially be affected by this action. Other types of 
entities not listed in the table could also be affected. If you have 
any questions regarding the applicability of this action to a 
particular entity, consult Lisa Macchio, listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

Background

    On July 31, 1997, pursuant to section 303(c) of the Clean Water Act 
(CWA), EPA promulgated cold water biota as a designated beneficial use 
for several water body segments, including Shields Gulch (PB 148S)--
below mining impact. In designating beneficial uses, EPA relied on the 
rebuttable presumption implicit in the CWA and EPA's regulations at 40 
CFR part 131, that in the absence of data to the contrary, ``fishable'' 
uses are attainable. EPA concluded that the presumption that fishable 
uses were attainable had not been rebutted for the water body segments 
in question.
    On March 19, 1999, the Idaho Mining Association challenged EPA's 
promulgation in the U.S. District Court of Idaho. On March 14, 2000, 
the Court, while upholding the legality of the rebuttable presumption 
approach under the CWA, found that EPA was arbitrary and capricious in 
determining that the presumption of a fishable use had not been 
rebutted for Shields Gulch. Therefore, the Court ordered that portion 
of the EPA rule designating Shields Gulch for cold water biota uses 
vacated and remanded to the EPA for further consideration. To conform 
with the Court's order, EPA is withdrawing the cold water biota 
designated use for Shields Gulch. The State has revised its water 
quality standards since EPA's July 31, 1997, promulgation and now 
applies the cold water biota use to Shields Gulch as a matter of State 
law. Therefore, withdrawing the Federal use designation will not result 
in a change in the level of environmental protection for Shields Gulch.
    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because this is a strictly legal 
issue of the impact of the District Court decision on the July 31, 
1997, Federal designated use for Shields Gulch. Thus, notice and public 
procedure are impracticable. EPA finds that this constitutes good cause 
under 5 U.S.C. 553(b)(B).
    EPA has also determined that good cause exists under section 553(d) 
of the Administrative Procedure Act to waive the requirement for a 30-
day period before the rule becomes effective because this rule relieves 
a restriction. Therefore, the rule will be effective March 13, 2002.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. Because the 
agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does 
not significantly or uniquely affect small governments or impose a

[[Page 11248]]

significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA. This rule does not have substantial direct effects on 
tribal governments, on the relationship between the Federal government 
and Indian Tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian Tribes, as specified in 
Executive Order 13175 (65 FR 67249, November 6, 2000).
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132 (64 FR 
43255, August 10, 1999). This rule also is not subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.
    This action does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    Section 7 of the Endangered Species Act (16 U.S.C. 1656 et seq.), 
requires Federal agencies, in consultation with the U.S. Fish and 
Wildlife Service and National Marine Fisheries Service, to ensure that 
their actions are unlikely to jeopardize the continued existence of 
listed species or adversely affect designated critical habitat of such 
species. EPA has determined that this action has no effect on listed 
species or critical habitat because there are no listed species in 
Shields Gulch.
    The Congressional Review Act (5 U.S.C 801 et seq.), as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of March 13, 2002. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

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

    Dated: March 7, 2002.
Christine Todd Whitman,
Administrator.


    For the reasons set out in the preamble title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 131--WATER QUALITY STANDARDS

    1. The authority citation for part 131 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.


Sec. 131.33  [Amended]

    2. Section 131.33 is amended by revising paragraph (b) to read as 
follows:


Sec. 131.33  Idaho

* * * * *
    (b) Use designations for surface waters. In addition to the State 
adopted use designations, the following water body segments in Idaho 
are designated for cold water biota: Canyon Creek (PB 121)--below 
mining impact; South Fork Coeur d'Alene River (PB 140S)--Daisy Gulch to 
mouth; Blackfoot River (USB 360)--Equalizing Dam to mouth, except for 
any portion in Indian country; Soda Creek (BB 310)--source to mouth.
* * * * *

[FR Doc. 02-6064 Filed 3-12-02; 8:45 am]
BILLING CODE 6560-50-P