[Federal Register Volume 67, Number 98 (Tuesday, May 21, 2002)]
[Rules and Regulations]
[Pages 35735-35743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12283]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 140

[FRL-7212-4]


Marine Sanitation Devices (MSDs); Regulation to Establish a No 
Discharge Zone (NDZ) for State Waters within the Boundary of the 
Florida Keys National Marine Sanctuary (FKNMS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is establishing a NDZ for State waters within the 
boundaries of

[[Page 35736]]

the FKNMS pursuant to section 312 (f)(4)(A) of the Clean Water Act. 
This action is being taken in response to an October 27, 1999, 
resolution passed by the FKNMS Water Quality Protection Program 
Steering Committee and a December 8, 1999, resolution of the Board of 
County Commissioners of Monroe County, Florida to establish a NDZ area 
for State waters within the FKNMS. These resolutions led to a December 
7, 2000, letter from Governor Jeb Bush of Florida requesting this 
action.

DATES: This rule will take effect June 19, 2002.

ADDRESSES: Written comments or requests for information may be 
submitted to Wesley B. Crum, Chief, Coastal Programs, EPA Region 4, 61 
Forsyth Street, Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT: Drew Kendall at (404) 562-9394 
or Fred McManus at (404) 562-9385.

SUPPLEMENTARY INFORMATION:

I. Background

    The proposed rule was published in the Federal Register on July 26, 
2001 (66 FR 38967). A 90-day comment period followed (ending October 
26, 2001), during which time, EPA Region 4 received 1,050 comments via 
letter, fax, or E-Mail. The comment tally was 1,016 in favor and 34 
opposed. This Federal Register document will address comments submitted 
in response to the July 26, 2001 (66 FR 38967), Federal Register 
document. Comments in opposition to the NDZ designation are addressed 
in section II below in general subject categories. Comments in favor of 
the NDZ designation focused on the fact that the FKNMS contains unique 
marine ecosystems(seagrass meadows, third largest coral barrier reef in 
the world, and mangrove islands) that are a State and national treasure 
and of high ecological, educational, aesthetic, recreational, and 
commercial value. Commentors supporting the NDZ pointed out that these 
ecosystems support tremendous biological diversity, containing more 
than 6,000 species of plants, fish and invertebrates that depend upon 
pristine water quality. Further, they stated that all boaters who use 
the FKNMS share the responsibility to protect this resource for future 
generations and that establishment and compliance with the NDZ is 
important and necessary to protect water quality.
    A map which delineates the area to be designated can be obtained or 
viewed by accessing the FKNMS's Web site at http://www.fknms.nos.noaa.gov/, by calling the Sanctuary office at (305) 
743-2437, or by writing to the Sanctuary Superintendent at P.O. 
Box 500368, Marathon, Florida 33050. Basically, State waters extend 
from land out to a distance of three statute miles on the Atlantic side 
of the Florida Keys and nine nautical miles on the Gulf side. It should 
be noted that the National Oceanic and Atmospheric Administration 
(NOAA) is pursuing NDZ status for Federal waters within the FKNMS. It 
is estimated that NOAA will complete its rule-making process in late 
2002 or early 2003.
    Currently, there are about 30 pump out facilities located 
throughout the Florida Keys. To obtain a list of these facilities you 
may contact George Garrett, Director of Marine Resources for Monroe 
County, at (305) 289-2507, E-mail at 
[email protected], or by writing to Monroe County 
Service Center, 2798 Overseas Highway, Suite 420, Marathon, Florida 
33050-2227.
    The Florida Keys are a national treasure of international acclaim 
that contain unique environments and possess high value to humans when 
properly conserved. Adjacent to the Florida Keys land mass are located 
spectacular, unique nationally significant marine environments, 
including seagrass meadows, mangrove islands, and extensive living 
coral reefs. These marine environments support rich biological 
communities possessing extensive conservation, recreational, 
commercial, ecological, historical, research, educational, and 
aesthetic values. These marine environments are the maritime equivalent 
of tropical rain forests in that they support high levels of biological 
diversity, are fragile and easily susceptible to damage from human 
activities, including nutrient enrichment. The economy of the Florida 
Keys is based in large part on tourism and fisheries that are directly 
tied to the ecological resources and quality of the waters surrounding 
the Florida Keys. In recognition of this, Congress created the FKNMS 
with the signing of H.R. 5905 (Public Law 101-605, the FKNMS and 
Protection Act) on November 16, 1990. The purpose of a marine sanctuary 
is to protect resources and their conservation, recreational, 
ecological, historical, research, educational, or aesthetic values 
through comprehensive long-term management. The mission of the National 
Marine Sanctuary Program is to identify, designate, and comprehensively 
manage marine areas of national significance. National Marine 
Sanctuaries are established for the public's long-term benefit, use, 
and enjoyment. Congress also recognized the critical role of water 
quality in maintaining the ecological resources of the Florida Keys, 
and directed the U.S. EPA and the State of Florida to develop a Water 
Quality Protection Program (WQPP) for the Sanctuary. The WQPP was 
finalized in September 1996 and implementation of the numerous 
recommended actions within the WQPP is ongoing.
    The State of Florida recognized the importance of water quality to 
ecosystem structure and function and declared the State waters 
surrounding the Florida Keys as "Outstanding Florida 
Waters" (OFW) in 1985. Florida Statute grants the Florida 
Department of Environmental Protection the power to establish rules 
that provide for the category of water bodies called OFW, which are 
worthy of special protection because of their natural attributes. No 
degradation of water quality is allowed in OFW, except as allowed in 
Florida Administrative Code (F.A.C.) 62-4.242(2). In addition, 
the Florida Keys have been designated as an "Area of Critical 
State Concern." The objective of this program is to provide 
another level of legislative review for development plans within areas 
where unique and fragile natural resources exist and local protection 
may be lacking. "Areas of Critical State Concern" are 
declared where there is a perceived need to protect public resources 
from risk by unregulated or inadequately regulated development. 
Further, the pristine and unique habitats of the Florida Keys have led 
to the establishment of special protection areas by the Federal 
government, including the Key West Wildlife Refuge and the Great White 
Heron Wildlife Refuge. These actions are further evidence of the 
importance of the Florida Keys and their unique natural resources.
    The purpose of the WQPP is to recommend priority corrective actions 
and compliance schedules addressing point and nonpoint sources of 
pollution to restore and maintain the chemical, physical, and 
biological integrity of the FKNMS. This includes restoration and 
maintenance of a balanced, indigenous population of corals, shellfish, 
fish and wildlife, and recreational activities in and on the water. 
NOAA's Final Management Plan/Environmental Impact Statement for the 
FKNMS became effective on July 1, 1997 and includes the WQPP. The 
Monroe County Board of County Commissioners and the State of Florida 
recognize and support this document.
    There is a large community in the Florida Keys that live on boats 
and many live-aboard vessels are permanently anchored in harbors and 
are not capable of movement. Transient vessels also anchor in harbors 
and other

[[Page 35737]]

protected sites and are very numerous in winter months. The number of 
live-aboard vessels has increased dramatically in recent years. While 
the Clean Vessel Act prohibits the dumping of raw sewage, treated 
wastewater from vessels may be discharged into State waters. Wastewater 
treatment (disinfection) by Type I and II MSDs does not remove 
nutrients from wastewater. Many live-aboard and transient vessels 
discharge wastewater into surface waters. It is estimated that 
nutrients from vessel wastewater account for about 2.8% of nitrogen and 
3.0% of phosphorus loadings into nearshore waters of the Florida Keys 
(U.S. EPA, 1993, Phase II Report). Nutrient loadings from vessels may 
be relatively small contributions to total Keys-wide loadings. However, 
loadings from vessels are a significant source of nutrients to harbors 
and result in eutrophication of waters that typically exhibit poor 
circulation/flushing. Violations of fecal coliform standards are common 
in marinas and harbors throughout the Florida Keys (Florida Department 
of Environmental Regulation 1987, 1990). The WQPP Phase II Report 
(1993) and other studies have determined that discharges of wastewater 
from vessels are degrading water quality in nearshore and confined 
waters. The final WQPP document (1996) identified the need to eliminate 
sewage discharges from live-aboard vessels and other vessels as a high 
priority action item. The State of Florida, as requested by the City of 
Key West, recently determined that the protection and enhancement of 
the quality of waters surrounding the City of Key West require greater 
environmental protection. This action prohibits the discharge from all 
vessels of any sewage, whether treated or not, into such waters out to 
a distance of 600 feet from shore. The U.S. EPA, pursuant to section 
312(f)(3) of the Clean Water Act (Public Law 92-500), recently 
(August 25, 1999) concurred with the State's determination that 
adequate pumpout facilities for safe and sanitary removal and treatment 
of sewage from all vessels are reasonably available for the waters 
surrounding the City of Key West.
    The Board of County Commissioners of Monroe County, Florida has for 
some time been concerned about water quality in the Florida Keys. 
Monroe County's Comprehensive Plan is very strongly predicated upon 
environmental protection and the associated Executive Order and Work 
Program adopted by the Florida Governor and Cabinet are geared toward 
assisting Monroe County with improving and protecting water quality. 
The Board of County Commissioners of Monroe County has adopted a 
resolution requesting that the Governor of the State of Florida 
petition the EPA to declare all waters of the State within the 
boundaries of the FKNMS to be a NDZ for sewage, whether treated or not, 
from all vessels. Monroe County believes that this action would be a 
major step in protecting water quality around the Keys and especially 
in those areas where there are high concentrations of vessels. The NDZ 
designation is fully supported by the WQPP Steering Committee and is 
consistent with the overall goals of the WQPP for the FKNMS. This 
designation is also consistent with Florida's Area of Critical State 
Concern Program and the Principles for Guiding Development for the 
Florida Keys. The Governor of the State of Florida supports Monroe 
County's decision and submitted the County's request to EPA Region 4, 
asking EPA to designate all State waters within the boundary of the 
FKNMS as a NDZ under the authority of section 312(f)(4)(a) of the CWA.
    Section 312(f)(4)(a) states: "If the EPA Administrator 
determines upon application by a State that the protection and 
enhancement of the quality of specified waters within such State 
requires such a prohibition, he shall, by regulation completely 
prohibit the discharge from a vessel of any sewage (whether treated or 
not) into such waters." This authority has now been delegated to 
EPA Regional Administrators. On December 7, 2000, the Governor of 
Florida, Jeb Bush, requested that EPA Region 4 establish the NDZ status 
for State waters within the FKNMS. The EPA Region 4 Administrator 
concurs with this request.

II. Response to Comments

A. Clarification of the Requirements of Section 312 of the CWA

    Several commentors appeared to misinterpret the different 
requirements of Clean Water Act (CWA) section 312(f)(4)(A) and CWA 
section 312(f)(3) and which regulatory process was being used to 
propose this NDZ. To propose a NDZ in this situation, there are two 
primary but distinct regulatory approaches that may be followed. Under 
CWA section 312(f)(3), the State may designate a NDZ based on a State 
determination that protection and enhancement of the quality of the 
waters within the area requires additional protection and a 
determination by EPA that adequate pump out facilities for safe and 
sanitary removal and treatment of sewage from vessels are reasonably 
available. This is contrasted with CWA section 312(f)(4)(A), which 
focuses solely on the water quality issues and does not require EPA to 
make the determination that adequate pump out facilities are reasonably 
available for State waters within the boundary of the NDZ. Under 
section 312(f)(4)(A), "if EPA determines upon application by a 
State that the protection and enhancement of the quality of specified 
waters within the state requires a prohibition, EPA shall, by 
regulation completely prohibit the discharge from a vessel of any 
sewage, whether treated or not, into such waters." In this 
particular matter, the Board of County Commissioners of Monroe County, 
by resolution, requested that Florida Governor Jeb Bush submit an 
application to EPA for a NDZ designation pursuant to section 
312(f)(4)(A). The Governor honored this request and applied to EPA 
under the authority of section 312(f)(4)(a) based on the State's 
finding that its waters within the boundary of the FKNMS have 
particular environmental importance considering the unique, fragile, 
and ecologically important natural resources of the Florida Keys 
ecosystem. However, although section 312(f)(4)(A) does not require an 
analysis of whether adequate pump out facilities are reasonably 
available, due to the number of comments received related to this 
issue, EPA, working with the County and the State has provided 
information concerning this issue below.

B. Adequate Pump Out Facilities

    Many commentors' letters expressed concern about the adequacy of 
existing pump out facilities in the Florida Keys, including the total 
number of facilities and the availability of the pump outs. In 
addition, a few commentors stated that EPA did not investigate the 
availability of pump out facilities. Although it was not required for 
this determination under section 312(f)(4)(a), staff from EPA, the 
Florida Department of Environmental Protection (FDEP), and Monroe 
County did conduct a survey and collect information on the existing and 
planned pump out facilities throughout the Florida Keys. This effort 
identified 29 locations with active pump-out stations and several more 
in the planning stages (see the summary section of this final notice 
for instructions on how to obtain this information). The types of pump 
outs varied from stationary facilities located on docks, to carts that 
boaters can roll to their vessels, to pump out boats/barges that 
navigate to vessels in need of pump out services. The hours of 
operation usually coincided with the normal business hours of marinas 
and

[[Page 35738]]

many facilities were open seven days a week. Several pump out stations 
in Key West are capable of servicing large vessels. During the survey, 
a review of GIS maps identified several areas throughout the Florida 
Keys where gaps exist and where additional pump out facilities may be 
needed. The survey effort resulted in the development of a detailed 
spreadsheet and maps with specific information concerning all pump out 
facilities in the Florida Keys. Ideally, about 26 additional pump out 
facilities are recommended (by the interagency planning group mentioned 
above) throughout the Florida Keys for total coverage along the entire 
length of the islands which would eliminate the identified gaps. It 
should be noted that most of those areas in the Florida Keys with large 
populations and density of vessels have available pump out stations.
    Currently, the majority of existing marinas in the Florida Keys are 
not required to provide pump out services. State regulations only 
require installation of pump out systems for new and expanded docking 
facilities where the development project involves construction of ten 
or more slips in Outstanding Florida Waters, pursuant to Rule 
62-312.430 of the Florida Administrative Code (F.A.C.), or in 
sovereign submerged lands owned by the State, in accordance with 
Rule  18-21.0041(1)(b)6, F.A.C.
    The FDEP Division of Law Enforcement administers the Clean Vessel 
Act (CVA) grant program. Under this program, grants are available to 
fund installation of vessel sewage pump out facilities and portable 
toilet dump stations at marinas. These grants can be used to fund 
mobile pump out systems and are available to local governments and 
commercial and non-profit entities operating marinas, boat ramps, 
mooring fields, etc.
    Projects under this program receive federal/state funds for up to 
75% of the project cost. Grantees are required to provide pump out 
services to the recreational boating public and fees shall not exceed 
$5.00 per service, unless justified and approved by FDEP and the U.S. 
Fish and Wildlife Service. FDEP staff is currently working with local 
governments and marina owners to increase the number of pump out 
facilities. Since 1996, eighteen pump out facilities have been funded 
with CVA grants totaling approximately $520,000 in the Florida Keys. In 
addition, National Fish and Wildlife Foundation and Coastal Improvement 
Assistance Program (CIAP) grants obtained by Monroe County will be used 
to establish mooring fields. CIAP grants will also be used to develop 
additional pump out systems.
    FDEP in consultation with EPA and many other state, regional, 
local, and federal government agencies and concerned citizens have 
initiated an effort to develop an implementation plan for the NDZ. This 
implementation plan will consist of many components, including a public 
education/outreach program, a strategy to develop additional 
infrastructure (pump outs, mooring fields, etc.) and an enforcement 
strategy. Initial efforts will be focused on public education and 
outreach and the construction of additional pump out facilities in 
areas where gaps have been identified. Initially, enforcement of the 
NDZ will be focused in the marinas, harborages, and other protected 
areas where vessels congregate and where pump out facilities are 
available. Later, after pump out stations are added in the areas with 
gaps, enforcement will be expanded to all areas of the Florida Keys.
    One group of commentors representing the tugboat, barge, and 
towboat industry commented that there are no existing facilities in the 
Florida Keys that can accommodate large tug/towboat units. In 1999, 
pursuant to section 312(f)(3) of the CWA, the State of Florida 
designated the waters around the City of Key West out to a distance of 
600 feet from shore as a NDZ and EPA determined that adequate pump out 
facilities for safe and sanitary removal and treatment of sewage from 
vessels are reasonably available. In addition, according to the 
Assistant City Manager of Key West, there are existing facilities in 
the City of Key West that can accommodate large ocean-going vessels and 
can provide pump out services. The dock at Mallory Square can 
accommodate large tugs and towboats and presently, the City pumps the 
holding tanks of large vessels by running a hose from the dock to a 
sewage collection line that is directly connected to the City's state-
of-the-art sewage treatment and disposal facility. The City has plans 
to install a large capacity pump station capable of servicing large 
vessels at Mallory Square by April 2002. The U.S. Naval Base at Truman 
Annex in Key West can also accommodate large vessels and is equipped 
with a pump out station that is directly connected to the collection 
system of the City's wastewater treatment facility. This U.S. Naval 
facility may be transferred to the City of Key West in the near future 
and can now be used by the City in emergency situations for pump out 
services. The U.S. Coast Guard Base at Trumbo Point does receive fuel 
shipments via tankers and this facility has a pump out station that is 
connected to the Key West wastewater management system. In addition, 
the City of Key West operates a pump out vessel with a capacity of 300 
gallons and is scheduled to acquire another pump out vessel with a 
capacity of 1,000 gallons by summer 2002. Accordingly, consistent with 
our 1999 determination, EPA still believes that there are sufficient 
pump out facilities in the Key West area to service the limited number 
of ocean-going tugs, towboats, and other large vessels with 
destinations in the Key West area. Further, we believe that ocean-going 
barge traffic navigating through Sanctuary waters should be able to 
retain the minimum volume of sewage generated while in Sanctuary waters 
and then discharge that sewage when outside the established NDZ in an 
environmentally safe manner.

C. Effectiveness of Land-Based Wastewater Treatment Facilities/Adequacy 
of Existing MSDs

    Some commentors questioned whether land-based wastewater treatment 
systems were more effective at treating and disposing of sewage from 
vessels than Type 1 and 2 MSDs. EPA believes that the land based 
facilities which are available to treat the pumped sewage are more 
effective in removing a greater range of pollutants than the Type 1 and 
Type 2 MSDs. Type 1 and 2 MSDs are flow-through devices for treating 
and discharging sewage on commercial and recreational vessels that are 
equipped with installed toilets. When operated properly, these devices 
macerate fecal material and add chemicals, or otherwise treat/disinfect 
the sewage to meet specified requirements for fecal coliform bacteria. 
However, Type 1 and 2 MSDs do not remove nutrients and other pollutants 
(e.g.; oxygen demanding materials) that contribute to water quality 
degradation. The City of Key West and the City of Key Colony Beach have 
recently completed significant and costly upgrades to their wastewater 
management systems, including construction of advanced wastewater 
treatment plants, subsurface well injection of effluent, and 
replacement of inadequate sewage collection lines. In addition, there 
are waste water treatment facilities in the Miami area that properly 
treat and dispose of sewage pumped from vessel holding tanks. Further, 
Monroe County's Sanitary Wastewater Master Plan has been completed and 
the County is pursuing wastewater system upgrades to state-of-the-art 
wastewater management systems that remove the vast majority of

[[Page 35739]]

nutrients from sewage prior to disposal. Pursuant to recent State 
legislation, all new and expanded land-based wastewater discharges 
permitted in the Florida Keys after June 1999 are required to meet best 
available technology standards for treatment and disposal, including 
nutrient removal. In addition, the legislation requires all existing 
sewage treatment plants and on-site sewage treatment and disposal 
systems to meet these standards by year 2010.
    Several commentors stated that they had already installed an 
approved Type 1 MSD and that this type device is adequate to protect 
the environment. Boaters who have taken the initiative to install 
approved Type 1 MSD devices are to be commended. However, as mentioned 
above, Type 1 MSDs do not remove nutrients or the biochemical oxygen 
demand loading from vessel sewage. The population of the Florida Keys 
includes a large number of individuals that live on their boats and 
many of these vessels are permanently anchored in various harbors 
throughout the chain of islands. Thousands of transient vessels also 
anchor in harbors and other protected sites and are especially numerous 
in the winter months. Nutrient loadings from vessels may be a 
relatively minor contribution to total Keys-wide loadings. However, 
loadings from vessels are a significant source of nutrients to harbors 
and other protected areas that experience poor circulation and flushing 
contributing to eutrophication. Several scientific studies have 
determined that discharges from vessels have caused degraded water 
quality in nearshore areas of confined and semi-confined waters. The 
discharge of minimally treated sewage from vessels is not consistent 
with the numerous actions that the State of Florida and Monroe County 
have taken to restore and protect the water quality of the Florida 
Keys, and which formed the basis for the State's application for a NDZ.

D. Land-Based Sources of Pollution

    Some respondents to the NDZ Federal Register Notice pointed out 
that land-based sources of pollution are the primary cause of water 
quality problems in the Florida Keys and that the relative contribution 
of vessel sewage versus other sources is minuscule. It is true that 
comparatively, most sewage nutrients entering the nearshore waters of 
the Florida Keys are from land-based sources such as inadequate 
cesspits, malfunctioning septic systems, and leaky collection lines 
associated with aging wastewater treatment plants. It is also true that 
the relative contribution of vessel sewage versus other sources 
represents a small percentage of the overall sewage load entering the 
system. Several scientific studies conducted in the Florida Keys have 
documented that sewage and the associated nutrients from onsite 
wastewater treatment systems migrate from land to semi-confined waters 
(canal systems) and other nearshore coastal waters and cause water 
quality degradation and eutrophication of the environment. It is 
estimated that nutrients from vessel wastewater account for only about 
2.8% of the total nitrogen and 3.0% of the total phosphorus loadings 
into nearshore waters of the Florida Keys (EPA, 1999). However, 
loadings from vessels are a significant source of nutrients to harbors, 
marinas, and other protected areas where vessels congregate and result 
in eutrophication of waters that typically exhibit poor circulation and 
flushing. The WQPP document and action plan (EPA, 1996) concluded that 
sewage discharges from vessels were degrading water quality in 
nearshore and confined waters. However small the contribution from 
vessels may be, the fact remains that nutrients from vessel sewage does 
negatively impact the fragile environment of the Florida Keys 
(additional information is provided in section G below).

E. Enforcement

    Several commentors expressed concern over the relatively large size 
of the proposed NDZ and felt that enforcement would be difficult. These 
respondents also commented that previous NDZ designations in other 
areas (i.e., Rhode Island) have been ineffective. As mentioned above, 
FDEP in consultation with EPA and many other state, regional, local, 
and federal government agencies and concerned citizens have initiated 
an effort to develop an implementation plan for the NDZ. This 
implementation plan will consist of many components, including a public 
education/outreach program, a strategy to develop additional 
infrastructure (pump outs, mooring fields, etc.), and an enforcement 
strategy. Initial efforts will be focused on public education and 
outreach and the construction of additional pump out facilities in 
areas where gaps have been identified. The NDZ implementation plan 
recommends that enforcement activities be phased in after the public 
education/outreach initiative. The recommended approach is to conduct a 
comprehensive public education/outreach program, after the NDZ 
designation becomes effective, before taking formal enforcement action, 
issuing citations, and imposing penalties. This phased approach will 
not apply to the previously established NDZ for the jurisdictional 
waters surrounding the City of Key West. Marine law enforcement 
agencies including federal, State, and local governments will actively 
participate in the implementation of the public education/outreach 
program by distributing information on the NDZ regulations to boaters.
    Initially, enforcement of the NDZ will be focused in the marinas, 
harborages, and other protected areas where vessels congregate and 
where pump out facilities are available. Later, after pump out stations 
are added in the areas that have been identified as requiring pump 
outs, enforcement activities can be expanded to all areas of the 
Florida Keys. Achieving 100% compliance with the NDZ designation in all 
the State waters of the FKNMS is probably not realistic. However, EPA 
does believe that the vast majority of the boating public will 
voluntarily comply with the requirements of the NDZ and utilize the 
available pump out stations. This will lead to a decrease in the amount 
of nutrients and other pollutants entering the waters of the FKNMS and 
an increase in the level of protection for the waters and unique marine 
resources of the Florida Keys ecosystem. EPA staff reviewed the 
magazine articles provided by respondents concerning the Rhode Island 
NDZ and have discussed the status of this NDZ with staff from EPA 
Region 1 in Boston, Massachusetts. Problems do appear to exist with the 
availability of pump out facilities during certain times of the day and 
in some specific areas throughout the designated NDZ area. However, 
this information does not lead to a conclusion that the NDZ for the 
State of Rhode Island is ineffective. Based on the existing level of 
public concern for and demonstrated desire to protect the environment 
of the Florida Keys and the level of commitment and willingness to 
cooperate and coordinate on the part of all levels of government, we 
are confident that the NDZ designation for State waters within the 
boundary of the FKNMS will be successful.

F. Economic Impacts, Safety, and Feasibility

    The Florida Keys have been, and continue to be an international 
tourist/boating destination. According to a study sponsored by NOAA, 
the Florida Keys Tourist Development Council, and The Nature 
Conservancy, visitors in the Florida Keys spent $1.38 billion during 
the 12-month period from June 1997 through May 1998. The primary

[[Page 35740]]

attractions for people who visit this area are warm weather, historic 
areas, fishing, and diving/snorkeling activities that are available in 
the nearby coral reef communities. Currently, the coral reef ecosystem 
is degrading. Coral reefs require waters low in nutrients to thrive. 
Therefore, actions that reduce the input of nutrients into this system 
are likely to benefit coral reefs. If the coral reefs and associated 
biological resources are allowed to decline, then a significant portion 
of the attraction for visiting this area will no longer exist.
    One commentor thought that a NDZ would make it illegal to discharge 
grey water associated with bathing and washing dishes. Designation of 
an area as a NDZ does not make it illegal to discharge grey water. 
Another commentor believed that the NDZ would outlaw existing Type 1 
and 2 MSDs currently installed onboard vessels. The NDZ designation 
would not cause existing Type 1 and 2 MSDs to be in violation by their 
mere presence onboard the vessel. However, it would be illegal for 
vessel operators to discharge from these devices while inside the NDZ. 
Type 1 and 2 MSDs should be secured to prohibit discharge while 
navigating or otherwise situated within the NDZ.
    Some commentors stated that holding tanks were personally 
unacceptable and installation of Type 3 MSDs could cause various 
problems, including unpleasant odors, decrease in boat stability, and 
substantially reduce the limited usable space on the average vessel. 
Cost to retrofit was also cited as a negative impact on boat owners. It 
is indisputable that boating safety is an important consideration. 
Neither EPA or the State of Florida would promulgate any rule which 
compromises the safety of the boating public. Installation of a holding 
tank should be approached no differently than any other marine 
retrofit, and if done properly by a well-trained and certified marine 
mechanic, safety, odor, and cost issues can be dealt with effectively. 
According to the Monroe County Department of Marine Resources and the 
FDEP Division of Law Enforcement, the average cost of installing a 
typical Type 3 MSD in most vessels should be about $600. As an 
alternative, portable toilets (i.e.; porto-potties) can be purchased 
($50 to $100) and used onboard most vessels, or boaters can tie-up at a 
marina with shoreside facilities.
    The vast majority of vessels that operate within the FKNMS are 
recreational (approximately 22,000 registered recreational vessels). 
However, there are a significant number of commercial fishing, charter/
dive/party boats, and some tugboats/towboats that operate within the 
boundary of the FKNMS. According to the U.S. Coast Guard, most charter/
dive/party boats in the Florida Keys are already equipped with Type 3 
MSDs and these commercial vessels will be able to use the available 
pump out facilities (most already do this) and comply with the NDZ 
rule. Other commercial vessels without Type 3 MSDs should be able to 
retrofit for less than $1,000 in most cases. A commercial vessel (e.g., 
tugboat/towboat, etc.) operator with an existing Type 2 MSD that 
chooses not to retrofit (prohibitive cost or other considerations) may 
install an appropriate portable toilet in addition to the existing Type 
2 MSD for use while navigating through waters of the FKNMS designated 
as a NDZ.
    Several commentors were concerned about the cost to pump out vessel 
holding tanks. EPA, FDEP, and Monroe County conducted a survey and 
collected information on the existing pump outs in the Florida Keys and 
determined that the range of costs to pump out was from $5.00 to 
$25.00, with the majority of pump out facilities charging $5.00. The 
number of times a tank will need to be pumped out will depend on usage. 
Live-aboards will have to pump out fairly often while less frequent 
boat users will need to empty the tank much less often. Using $10.00 as 
the pump out charge, ($10 is on the high end, most pump outs cost $5) 
and one pump out per week, results in an estimated annual cost of $520 
per vessel per year. Annual costs in this range are considered 
reasonable. It should also be noted that pump out fees may qualify as a 
business expense and may be tax deductible for some vessel owners.
    One commentor suggested that it would be a better use of funds from 
FDEP to provide money for research into more effective MSD technology. 
The State of Florida, in accordance with section 312 (f)(4)(A) filed an 
application for the designation of the NDZ and EPA has the 
responsibility of processing that application. EPA would always 
encourage research into more effective means to reduce pollution that 
is being discharged into the nation's waters. However, whether FDEP 
should fund research into more effective MSDs is an issue that EPA 
would defer to the State.

G. Availability of Scientific Evidence to Support NDZ

    Several commentors claimed that there is no scientific evidence to 
demonstrate that the proposed NDZ will improve water quality in the 
Florida Keys aquatic environment. It is their opinion that Type I or 
Type II MSDs are effective and that their use does not contribute to 
water quality problems.
    As part of the Florida Keys National Marine Sanctuary and 
Protection Act of 1990, specific programs were established to address 
water quality issues. Water quality matters in the Florida Keys are 
reviewed and evaluated by the Steering Committee for the Water Quality 
Protection Program. The Steering Committee consists of federal and 
State resource agency managers, local elected officials and 
knowledgeable citizens. The Steering Committee receives technical 
guidance from the Water Quality Protection Program Technical Advisory 
Committee which consists of scientists from the Florida Keys and South 
Florida. Both committees concurred that water quality concerns in the 
Florida Keys must be addressed comprehensively. The committees 
concluded that elimination of discharges from vessels, including 
discharge from Type I or Type II MSDs, will eliminate a known source of 
water quality degradation.
    A major challenge to scientists and managers working in the Florida 
Keys, and elsewhere, is being able to differentiate the natural 
variability of ecosystems from human-caused disturbances. Signs of 
ecosystem stress in the Florida Keys include loss of coral cover and 
diversity, particularly at offshore bank reefs, increasing nitrogen and 
phosphorus concentrations in the near shore waters, decreased water 
clarity, and changes in the natural benthic community composition. 
Comprehensive monitoring has documented a 37% reduction in stony coral 
coverage between 1996 and 2000. Also, the reason that monitoring was 
initiated was the observed, but poorly quantified loss of coral cover 
at many sites prior to 1996. Habitat and water quality degradation in 
canals and other semi-confined waters within the Florida Keys has been 
measured and is related to population density. The distance from shore 
at which ecological changes are attributable to sources of pollution 
continues to be a subject of scientific debate.
    Scientists have postulated that the observed degradation of the 
Florida Keys marine ecosystem is due to multiple stressors operating on 
different scales. The increase in atmospheric carbon dioxide and 
warming of ocean waters is occurring on a global scale and may be 
responsible for weakening corals through bleaching or other heat-
related stresses. Nutrient addition to coastal waters is a local 
stressor that may be more easily managed than others by implementing 
wastewater and storm water treatment technologies to

[[Page 35741]]

eliminate or significantly reduce nutrient addition.
    Just like lawn fertilizer, human wastes contain nutrients that if 
discharged to water can stimulate algal growth and deplete the amount 
of oxygen in the water. Algal growth and changes in water chemistry are 
two of the identified factors in ecosystem decline. The most readily 
observed impacts of nutrient addition occur in confined waters (canals, 
marina basins) because of reduced circulation and/or reduced dilution. 
However, it is feared that if nutrient additions continue or increase, 
those perturbations will result in changes in community structure 
further and further from shore.
    Manipulative experiments in seagrass beds in south Florida have 
demonstrated that the time course of response of seagrass beds to 
nutrient enrichment is on the order of decades. Since the bank reefs 
are already stressed and are a major component of the economy of the 
Keys, it is prudent to reduce all manageable sources of pollution 
before additional environmental degradation occurs.
    The Florida Keys ecosystem is, hydrologically, very 
"open." Water current directions and speeds are very 
complex and are just beginning to be understood. Nutrients and other 
pollutants derived from other geographical areas undoubtedly reach 
waters surrounding the Florida Keys. The mass balance loadings from 
these various sources have not been quantified because of the 
hydrological complexity. However, nutrient loadings from land-based 
sources and vessels in the Keys have been estimated (EPA, 1993; Monroe 
County Sanitary Wastewater Master Plan, 2000; Monroe County Storm Water 
Master Plan, 2001). Nutrient loading to a water body can come from 
various land-based sources including residential, commercial, and 
municipal sewage treatment systems, poor storm water practices, and 
other discharges from shoreline facilities and boats.
    It is estimated that nutrients from vessel wastewater account for 
only about 2.8% of the total nitrogen and 3.0% of the total phosphorus 
loadings into nearshore waters of the Florida Keys (EPA, 1999). While 
these percentages may not seem significant Keys-wide, it is thought 
that vessel discharge is a major contributor of nutrients in harbors 
and other anchorages where vessels congregate.
    Type I MSDs treat sewage with disinfectant chemicals before 
discharge and the discharges must not show any visible floating solids. 
Type II MSDs provide a higher level of maceration and disinfection, and 
the discharge contains a greater level of chemicals. Neither Type I or 
Type II MSDs remove nutrients from the discharge. Raw sewage or 
improperly treated sewage from vessels or other sources is not only 
visually repulsive, but also has the potential to expose swimmers and 
shellfish to pathogens.
    Waterborne illnesses directly attributable to sewage pollution 
include hepatitis, typhoid, cholera, and gastroenteritis. The 
indicators used to detect the presence of sewage pollution are usually 
not the pathogens themselves, but rather a type of bacteria called 
fecal coliform bacteria. Fecal coliform bacteria detected in water can 
be an indicator of the presence of human waste and the potential 
exposure to diseases. Enterococci bacteria are another indicator of 
fecal contamination that is more specific to human wastes than fecal 
coliform bacteria. When bacteria levels exceed designated public health 
standards, swimming beaches and shellfish beds may be closed, which can 
harm tourism and deteriorate the quality of life.
    Several studies conducted by the FDEP, or its predecessor agency, 
have documented water quality standard violations or other signs of 
eutrophication (nutrient enrichment) in areas where vessels congregate 
in the Florida Keys. In 1985, State scientists studied the water 
quality of waters surrounding the Keys in preparation for their 
proposed designation as Outstanding Florida Waters (OFW). That study 
concluded that the majority of waters met the criteria for designation 
as OFW, but that certain areas, including canals and other confined 
waters exhibited low values in dissolved oxygen, high nutrient 
concentrations, and violations of the fecal coliform standard. These 
areas were listed as "hot spots" by EPA (Phase 1 Report, 
1992). Included in that list are several marinas or boat basins (e.g., 
Plantation Yacht Harbor, Faro Blanco Marina, Boot Key Harbor, Oceanside 
Marina, and Garrison Bight Marina).
    In 1984, FDEP (1987) measured water quality parameters in the 
vicinity of the City of Marathon (Middle Keys). High levels of 
nutrients and fecal coliform bacteria were found at Faro Blanco Marina 
during the tourist season due to discharge of sewage from vessels. In 
1990, the Florida Department of Environmental Regulation conducted an 
intensive one-year study to assess the water quality in Boot Key Harbor 
(Marathon). Boot Key Harbor is a basin with limited flushing that has 
approximately 400 live-aboard vessels during winter months. The canals 
discharging into the basin and the basin itself had reduced oxygen 
concentration and high fecal coliform concentrations. Fecal coliform 
levels in the basin were highest during winter months at stations in 
close proximity to live-aboard vessels; violations of the State 
standard for fecal coliform bacteria were common.
    In 1994, Lapointe et al. assessed nutrient concentrations along 
transects from known sources, including House Boat Row (Cow Key 
Channel), Key West. Nutrients were highest at the sources and decreased 
seaward. They found elevated nutrients hundreds of meters offshore of 
the source. Because any degradation from ambient conditions is a 
violation of OFW standards, these elevated nutrient concentrations were 
a violation of State water quality standards. They also concluded that 
nutrient enrichment was resulting in significant degradation to 
seagrass community structure for a considerable distance from shore.
    One commentor stated that the use of MSDs on commercial vessels 
transiting the Keys would cause no water quality or habitat 
degradation. There are no site-specific scientific studies available 
that directly address that matter. There are many variables to consider 
in assessing the impacts of vessels transiting Keys waters including 
the volume of discharge, level of treatment, the number of vessels, the 
depth and distance from shore or other sources of pollution, current 
patterns, and the habitat type at the discharge point. The dilution of 
wastewater from a single vessel transiting the Keys may be so great 
that the discharge may not cause serious ecological problems and may 
not be detectable within a short distance from the point of discharge. 
However, the cumulative impact from many transiting vessels could be 
significant. The potential impacts are increased if the transiting 
vessels discharge in close proximity to coral reef or seagrass 
habitats. As a practical matter, allowing some vessels to discharge at 
some locations within the FKNMS would lead to confusion among boaters 
and enforcement problems. Thus, it is our determination that the 
prudent and expedient course of action is to eliminate all discharges 
of wastewater from all vessels in State waters in the FKNMS.

H. Geographic Scope of NDZ

    At least one commentor noted that the jurisdictional waters 
surrounding the City of Key West have previously been designated as a 
NDZ and suggested that the proposed Keys-wide NDZ be limited

[[Page 35742]]

to 600 feet from shore and only in areas with adequate pump outs. EPA, 
pursuant to section 312 (f)(3) of the CWA, concurred (August 1999) with 
the State of Florida's determination that adequate pump out facilities 
for safe and sanitary removal and treatment of sewage from all vessels 
are reasonably available for waters surrounding the City of Key West. 
The action cited above prohibits the discharge from all vessels of any 
sewage, whether treated or not, into such waters around Key West out to 
a distance of 600 feet from shore.
    Based on information provided by the Monroe County Department of 
Marine Resources, there are many vessel anchorage areas (both nearshore 
and offshore) throughout the Florida Keys that are outside the zone 
that would be delineated by a line 600 feet from shore. Many, if not 
most, of these anchorages are situated in areas with extensive living 
corals, seagrass meadows, and other unique and ecologically important 
marine resources. A NDZ limited to 600 feet from shore would not 
provide an increased level of protection to a vast area within the 
FKNMS that contains fragile and nationally significant marine 
resources. In addition, limiting the NDZ area to a line 600 feet from 
shore would cause confusion among the boating public and would 
complicate and confound enforcement of the NDZ designation. Therefore, 
EPA believes that the NDZ should encompass all State waters within the 
boundary of the FKNMS to provide the highest level of protection 
afforded by law to the waters and the precious marine ecosystem of the 
Florida Keys.

III. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is significant and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. This Order defines 
"significantly regulatory action" as likely to result in a 
rule that may:

    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact or entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

EPA, in consultation with local and State government officials, has 
determined that this rule is not a "significant regulatory 
action" under the terms of Executive Order 12866 and is therefore 
not subject to OMB review.

B. Executive Order 13132

    The State of Florida is requesting that EPA take action to 
designate State waters within the FKNMS as a NDZ. Therefore, this order 
does not apply.

C. Executive Order 13175

    This order pertains to compliance costs of this rule to tribes. 
There are no tribal lands within the boundaries of the FKNMS. 
Therefore, this order does not apply.

D. Executive Order 13045

    This order authorizes EPA the discretion to consider health or 
safety risks (especially for children) when making regulatory 
determinations. The net result of this action will be to improve 
environmental conditions within the FKNMS.

E. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 6501 
et seq whenever an agency is developing regulations, it must prepare 
and make available for public comment the impact of the regulations on 
small entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions). A regulatory flexibility analysis is not 
required if the head of the agency certifies that the rule will not 
have significant economic impact on a substantial number of small 
entities. EPA policy dictates that an Initial Regulatory Flexibility 
Analysis (IRFA) be prepared if the proposed action will have any 
significant effect on any small entities. An abbreviated IRFA can be 
prepared depending on the severity of the economic impact and relevant 
statute's allowance of alternatives. After considering the economic 
impacts of this proposed regulation/rule on small entities, EPA 
certifies that this action will not have a significant economic impact 
on a substantial number of small entities.

F. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and recordkeeping burden on the regulated 
community, as we minimize the cost of Federal information collection 
and dissemination. In general, the Act requires that information 
requests and recordkeeping requirements affecting 10 or more non-
Federal respondents be approved by OMB. Since today's rule would not 
establish or modify any information and recordkeeping requirements, it 
is not subject to the requirements of the Paperwork Reduction Act.

G. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statute is required 
for EPA rules under section 205 of the Act, EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must consider that alternative, unless the Administrator 
explains otherwise in the final rule. Before EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the Act a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them opportunity for meaningful and timely input during the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them of compliance 
with the regulatory requirements.
    EPA, in consultation with local and State government officials, has 
determined that this rule does not include a Federal mandate that will 
result in estimated annualized costs of $100 million or more to either 
State, local, and tribal governments in the aggregate, or to the 
private sector. All vessels that are equipped with MSDs and that 
navigate throughout the FKNMS are already subject to the EPA MSD 
Standard at 40 CFR part 140 and the U.S. Coast Guard MSD Standard at 33 
CFR part 159. These standards prohibit the overboard discharge of 
untreated vessel sewage in State waters in the FKNMS and require that 
vessels with on-board toilets shall have U.S. Coast Guard certified 
MSDs which

[[Page 35743]]

either retain sewage or treat sewage to the applicable standards.
    There are 3 types of MSDs certified by the U.S. Coast Guard. Only 
those vessels that have either one of the two types of certified flow-
through devices will be affected by this rule. Those vessels affected 
by this rule will either retain and pump out treated sewage or 
discharge outside of the designated NDZ. Any costs associated with 
those activities is minimal and it is therefore estimated that the 
annualized costs to State or tribal governments in the aggregate, or to 
the private sector, will not exceed $100 million.
    Therefore, this rule is not subject to the requirements of sections 
202 and 205 of the Act. Because the rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments, it is also not subject to the requirements of section 203 
of the Act. Small governments are subject to the same requirements as 
other entities whose duties result from this rule and they have the 
same ability as other entities to retain and pump out treated sewage or 
discharge outside of the designated zones.

List of Subjects in 40 CFR Part 140

    Environmental protection, Sewage disposal, Vessels.

    Dated: May 7, 2002.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.

    Title 40, Chapter 1, Part 140 of the Code of Federal Regulations is 
amended as follows:

PART 140-[AMENDED]

    1. The authority citation for part 140 continues to read as 
follows:

    Authority: 33 U.S.C. 1322.

    2. Section 140.4 is amended by adding paragraph (b)(1)(ii)to read 
as follows:


 140.4  Complete prohibition.

* * * * *
    (b) ***
    (1) ***
    (ii) Waters of the State of Florida within the boundaries of the 
Florida Keys National Marine Sanctuary as delineated on a map of the 
Sanctuary at http://www.fknms.nos.noaa.gov/.
* * * * *
[FR Doc. 02-12283 Filed 5-20-02; 8:45 am]
BILLING CODE 6560-50-P