[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Proposed Rules]
[Pages 79020-79028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32582]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, and 130

[WH-FRL-7430-5]


Withdrawal of Revisions to the Water Quality Planning and 
Management Regulation and Revisions to the National Pollutant Discharge 
Elimination System Program in Support of Revisions to the Water Quality 
Planning and Management Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: Today's action proposes to withdraw the final rule entitled 
``Revisions to the Water Quality Planning and Management Regulation and 
Revisions to the National Pollutant Discharge Elimination System 
Program in Support of Revisions to the Water Quality Planning and 
Management Regulation (``the July 2000 rule'') published in the Federal 
Register on July 13, 2000. The July 2000 rule amended and clarified 
existing regulations implementing a section of the Clean Water Act 
(CWA), which requires States to identify waters that are not meeting 
applicable water quality standards and to establish pollutant budgets, 
called Total Maximum Daily Loads (TMDLs), to restore the quality of 
those waters. The July 2000 rule also amended EPA's National Pollutant 
Discharge Elimination System (``NPDES'') regulations to include 
provisions addressing implementation of TMDLs through NPDES permits. 
The July 2000 rule has never become effective; it is currently 
scheduled to take effect on April 30, 2003. Regulations that EPA 
promulgated in 1985 and amended in 1992 remain the regulations in 
effect for implementing the TMDL Program. Today, EPA is proposing to 
withdraw the July 2000 rule, rather than allow it to go into effect or 
again propose to extend its effective date. EPA believes that 
significant changes would need to be made to the July 2000 rule before 
it could serve as the blueprint for an efficient and effective TMDL 
Program. Furthermore, EPA needs additional time beyond April 2003 to 
decide whether and how to revise the currently-effective regulations 
implementing the TMDL Program in a way that will best achieve the goals 
of the CWA.

DATES: Written comments on this proposed rule should be submitted by 
January 27, 2003. Comments provided electronically will be considered 
timely

[[Page 79021]]

if they are submitted by 11:59 p.m. January 27, 2003.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in section C, regarding Additional Information for Commenters 
of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For information about today's 
proposal, contact: Francoise M. Brasier, U.S. EPA Office of Wetlands, 
Oceans and Watersheds (4503T), U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone (202) 566-
2385.

SUPPLEMENTARY INFORMATION:

A. Authority

    Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303, 
305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g), 
1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, 
and 1373.

B. Entities Potentially Regulated by the Proposed Rule

                 Table of Potentially Regulated Entities
------------------------------------------------------------------------
                                               Examples of potentially
                 Category                        regulated entities
------------------------------------------------------------------------
Governments...............................  States, Territories and
                                             Tribes with CWA
                                             responsibilities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in this table could also be regulated. To determine whether 
you may be regulated by this action, you should carefully examine the 
applicability criteria in Sec.  130.20 of title 40 of the Code of 
Federal Regulations. If you have any questions regarding the 
applicability of this action to you, consult the person listed in the 
FOR FURTHER INFORMATION CONTACT section.

C. Additional Information for Commenters

1. How Can I Get Copies of This Document and Other Related Information 
?

    a. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0037. The official public docket is 
the collection of materials that is available for public viewing at the 
Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426. For access to docket materials, please call 
ahead to schedule an appointment. A reasonable fee may be charged for 
copying.
    b. Electronic Access. An electronic version of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket to 
submit or view public comments, access the index listing of the 
contents of the official public docket, and to access those documents 
in the public docket that are available electronically. Once in the 
system, select ``search,'' then key in the appropriate docket 
identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in the preceding section C.1.a.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

2. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comments. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments. Commenters who want EPA to 
acknowledge receipt of their comments should include a self-addressed, 
stamped envelope.
    a. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket and follow the online instructions for submitting comments. 
Once in the system, select ``search,'' and then key in Docket ID No. 
OW-2002-0037. The system is an ``anonymous access'' system, which means 
EPA will not

[[Page 79022]]

know your identity, e-mail address, or other contact information unless 
you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected]., Attention Docket ID No. OW-2002-0037. Electronic 
comments must be submitted as a WordPerfect 5.1, 6.1, or 8 file or as 
an ASCII file, avoiding the use of special characters. Electronic 
comments on this action may be filed on line at many Federal Depository 
Libraries. In contrast to EPA's electronic public docket, EPA's e-mail 
system is not an ``anonymous access'' system. If you send an e-mail 
comment directly to the Docket without going through EPA's electronic 
public docket, EPA's e-mail system automatically captures your e-mail 
address. E-mail addresses that are automatically captured by EPA's e-
mail system are included as part of the comment that is placed in the 
official public docket, and made available in EPA's electronic public 
docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in section C.2.b., 
which follows. These electronic submissions will be accepted in 
WordPerfect 5.1, 6.1 or 8 file or an ASCII file format. Avoid the use 
of special characters and any form of encryption.
    b. By Mail. Send an original and three copies of your comments and 
enclosures (including references) to: Water Docket, Environmental 
Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., 
Washington, DC, 20460, Attention Docket ID No. OW-2002-0037.
    c. By Hand Delivery or Courier. Deliver your comments to: the Water 
Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301 
Constitution Ave., NW., Washington, DC, Attention Docket ID No. OW-
2002-0037. Such deliveries are only accepted during the Docket's normal 
hours of operation from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays as identified in section C.1.a.
    d. By Facsimile. No facsimiles (faxes) will be accepted.

3. How Should I Submit CBI To the Agency?

    Do not submit information through EPA's electronic public docket or 
by e-mail that you consider to be CBI. You may claim information that 
you submit to EPA as CBI by marking any part or all of that information 
as CBI. (If you submit CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM as CBI and then identify electronically within the disk 
or CD ROM the specific information that is CBI). Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

4. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    [sbull] Explain your views as clearly as possible.
    [sbull] Describe any assumptions that you used.
    [sbull] Provide any technical information and/or data you used that 
support your views.
    [sbull] If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    [sbull] Provide specific examples to illustrate your concerns.
    [sbull] Offer alternatives.
    [sbull] Make sure to submit your comments by the comment period 
deadline identified.
    [sbull] To ensure proper receipt by EPA, identify the appropriate 
docket identification number in the subject line on the first page of 
your response. It would also be helpful if you provided the name, date, 
and Federal Register citation related to your comments.

I. Basis for Today's Action and Request for Comment

A. What Is the Statutory and Regulatory Background for Today's Action?

    TMDLs are one of the many tools Congress authorized in the CWA to 
help achieve the Act's main objective to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
(CWA section 101(a)). Section 303(d) of the CWA requires States to 
identify and establish a priority ranking for waters for which 
technology-based effluent limitations required by section 301 are not 
stringent enough to implement applicable water quality standards, 
establish TMDLs for the pollutants causing impairment in those waters, 
and submit to EPA, from time to time, the list of impaired waters and 
TMDLs. EPA must review and approve or disapprove lists and TMDLs within 
30 days of the time they are submitted. If EPA disapproves a list or a 
TMDL, EPA must establish the list or TMDL. In addition, some courts 
have interpreted the statute as requiring EPA to establish lists and 
TMDLs when a State fails to do so.
    Listing impaired waters and establishing TMDLs for waters impaired 
by pollutants from point and nonpoint sources does not, by itself, 
create any new or additional implementation authorities to control 
point or nonpoint sources. Section 303(d) of the Act requires that 
TMDLs ``be established at a level necessary to implement the applicable 
water quality standards,'' and section 303(d)(2) requires a State to 
incorporate TMDLs into its ``current plan'' under section 303(e). Under 
the section 303(e) process, States develop and update state-wide water 
quality management (WQM) plans, produced in accordance with sections 
208 and 303(e) of the Act, to direct implementation of the requirements 
of the Act.
    Under CWA section 402, the NPDES Program regulates the ``discharge 
of a pollutant,'' other than dredged or fill materials from a ``point 
source'' into ``waters of the United States.'' The CWA and NPDES 
regulations define ``discharge of a pollutant,'' ``point source,'' and 
``waters of the United States.'' The NPDES Program is administered at 
the Federal level by EPA unless a State, tribe or U.S. Territory 
assumes the program after receiving approval by the Federal government. 
Currently, 45 States have received approval to administer the NPDES 
Program in their States. Under section 402, discharges of pollutants to 
waters of the United States are authorized by an individual NPDES 
permit or a general permit applicable to multiple similar facilities or 
activities. NPDES permits commonly contain numerical limits on the 
amounts of specified pollutants that may be discharged and may specify 
best management practices (BMPs) designed to minimize water quality 
impacts. These numerical effluent limitations and BMPs or other non-
numerical effluent limitations implement both technology-based and 
water quality-based requirements of the Act. Technology-based 
limitations represent the degree of control that can be achieved by 
point sources using various levels of pollution control technology. If

[[Page 79023]]

necessary to achieve or maintain compliance with applicable water 
quality standards, NPDES permits must contain water quality-based 
limitations more stringent than the applicable technology-based 
requirements. One basis for water quality-based effluent limits in 
NPDES permits is a wasteload allocation from a TMDL. See 40 CFR 
122.44(d)(1)(vii). The NPDES Program regulations appear at 40 CFR parts 
122-125.
    EPA issued regulations governing identification of impaired waters 
and establishment of TMDLs in 1985 and revised them in 1992 (Sec. Sec.  
130.2 and 130.7). Among other things, these currently effective 
regulations provide that:
    [sbull] States must identify those waters still requiring TMDLs 
because technology-based effluent limitations required by the CWA or 
more stringent effluent limitations and other pollution controls (e.g., 
management measures) required by local, State, or Federal authority are 
not stringent enough to implement applicable water quality standards 
(WQS) (Sec.  130.7(b)(1));
    [sbull] These lists of waters not meeting WQS must be submitted to 
EPA every two years (on April 1 of every even-numbered year) (Sec.  
130.7(d)(1));
    [sbull] The lists must include an identification of the pollutant 
or pollutants causing or expected to cause the impairment, and a 
priority ranking of the waters that identifies the waters targeted for 
TMDL development in the next two years (Sec.  130.7(b)(4));
    [sbull] States, in developing lists, must assemble and evaluate all 
existing and readily available water quality-related data and 
information (Sec.  130.7(b)(5));
    [sbull] States must submit with each list a description of the 
methodology used to develop the list and provide EPA with a rationale 
for any decision not to use any existing and readily available water 
quality-related data and information (Sec.  130.7(b)(6));
    [sbull] A TMDL is the sum of individual wasteload allocations for 
point sources (WLA), load allocations for nonpoint sources and natural 
background (LA). Wasteload allocations are defined as the portion of a 
receiving water's loading capacity that is allocated to one of its 
point sources of pollution. (Sec.  130.2 (h) and (i));
    [sbull] Load allocations are defined as the portion of a receiving 
water's loading capacity that is attributed to nonpoint sources of 
pollution or natural background. They are best estimates of the 
loading, which can range from reasonably accurate estimates to gross 
allotments. Where possible, natural, background and nonpoint source 
loads should be distinguished (Sec.  130.2(g));
    [sbull] TMDLs must be established at levels necessary to attain and 
maintain the applicable narrative and numerical water quality standards 
with seasonal variations and a margin of safety that takes into account 
any lack of knowledge concerning the relationship between effluent 
limitations and water quality (Sec.  130.7(c)(1));
    [sbull] If best management practices (BMPs) or other nonpoint 
source pollution controls make more stringent load allocations 
practicable, the wasteload allocations can be made less stringent 
allowing for nonpoint source control tradeoffs (Sec.  130.2(i));
    [sbull] EPA must approve or disapprove lists and TMDLs within 30 
days of submission. If disapproved, EPA must establish a list or a TMDL 
within 30 days (Sec.  130.7(d)(2));
    [sbull] The process for involving the public in the development of 
lists of impaired waters and TMDLs must be described in the State's 
Continuing Planning Process (CPP) (Sec.  130.7(a));
    [sbull] Under proper technical conditions, TMDLs can be calculated 
for all pollutants (43 FR 60665).
    The 1985 regulation also identifies specific elements that comprise 
the WQM plan, including the ``identification of implementation measures 
necessary to carry out the plan, including financing, the time needed 
to carry out the plan, and the economic, social and environmental 
impact of carrying out the plan in accordance with section 
208(b)(2)(E)'' (Sec.  130.6(c)(6)). Once approved by EPA, TMDLs are 
incorporated into these State WQM plans (Sec.  130.7(d)(2)). Permitting 
authorities implement wasteload allocations included in a TMDL through 
enforceable water quality-based discharge limits in NPDES permits 
authorized under section 402 of the CWA. The primary mechanism for 
implementing nonpoint source load allocations within TMDLs is through 
the State section 319 nonpoint source management program, coupled with 
a wide variety of other State, local, tribal, and Federal programs 
(which may be regulatory, non-regulatory, or incentive-based, depending 
on the program), as well as voluntary action by committed citizens.

B. Why Did EPA Promulgate the July 2000 Rule?

    On July 13, 2000, EPA published a final rule revising the TMDL 
regulations previously promulgated in 1985 and revised in 1992 (65 FR 
43586). In 1996, the Agency determined that there was a need for a 
comprehensive evaluation of implementation of section 303(d) 
requirements. The reasons for this need were threefold. First, EPA was 
concerned with the lack of progress in the program despite the 
regulations issued by EPA in 1985 and 1992, and a series of policy 
memoranda including a 1997 request that States work to improve the rate 
of establishing TMDLs. Second, stakeholders had raised concerns with 
the lack of clarity and consistency in the program. Third, 
environmental and public interest organizations had started filing 
lawsuits alleging that EPA should be held accountable, under the CWA, 
for its failure to oversee and supplement inadequate State 303(d) 
listing and TMDL establishment efforts.
    EPA convened a committee under the Federal Advisory Committee Act 
(TMDL FACA Committee) to undertake such an evaluation and make 
recommendations for improving implementation of the TMDL Program, 
including recommendations for revised regulations and guidance. In 
1998, after careful deliberation, the Committee submitted to EPA its 
final report containing more than 100 recommendations, a subset of 
which required regulatory changes (Report of the Federal Advisory 
Committee on the Total Maximum Daily Load (TMDL) Program. EPA 100-R-98-
006, July 1998). The committee reached consensus on most 
recommendations although minority reports were filed on some issues. 
These recommendations guided EPA in the development of the proposed 
rule of August 23, 1999, (64 FR 46012) and the final rule of July 13, 
2000 (65 FR 43586). EPA proposed changes intended to resolve issues 
concerning the identification of impaired waterbodies by promoting more 
comprehensive inventories of impaired waters. The rule was also 
intended to improve implementation of TMDLs by requiring, as part of 
the TMDL, implementation plans containing lists of actions and 
expeditious schedules to reduce pollutant loadings. Finally, EPA 
proposed changes to the NPDES permitting regulations to assist in 
implementing TMDLs and to better address point source discharges to 
waters not meeting water quality standards prior to establishment of a 
TMDL.

C. Why Did EPA Undertake a Further Review of the TMDL Regulations and 
Delay the Effective Date of the July 2000 Rule?

    The July 2000 rule was controversial from the outset. The August 
1999 proposal attracted approximately 34,000

[[Page 79024]]

comments, a significant number of which criticized various aspects of 
the proposed rule. Before and after promulgation, the rule generated 
considerable controversy, as expressed in Congressional action, 
letters, testimony, public meetings, and litigation. Even before it was 
published in the Federal Register, Congress prohibited EPA from 
implementing the final rule through a spending prohibition included in 
the Military Construction Appropriations Act: FY 2000 Supplemental 
Appropriations (Pub. L. 106-426). This provision prohibited EPA from 
using funds made available for fiscal years 2000 and 2001 ``to make a 
final determination on or implement'' the July 2000 TMDL rule. 
Anticipating that this amendment would go into effect, the July 2000 
rule provided that the effective date of the regulations would be 30 
days after the date that Congress allowed EPA to implement the 
regulations. The spending prohibition was scheduled to expire on 
September 30, 2001, and, barring further action by Congress or EPA, the 
rule would have gone into effect 30 days later on October 30, 2001. 
Additionally, in the FY 2001 Appropriations Bill, Congress directed EPA 
to contract with the National Academy of Sciences' National Research 
Council (NRC) to evaluate the adequacy of scientific methods and 
approaches currently available to support development and 
implementation of TMDLs. In the Conference Report 106-988 
describing the VA/HUD and Independent Agencies FY 2001 Appropriations 
Act, Congress also requested that the Agency prepare a comprehensive 
assessment of the development and implementation costs of the TMDL 
Program.
    States, business and industry groups, agriculture and forestry 
organizations, and local governments questioned the scope, complexity, 
and cost of, and the legal authority for, many of the new provisions of 
the rule. Environmental groups expressed concern that the rule did not 
do enough to address water quality impairments from nonpoint sources, 
and argued that the new schedules in the rule unlawfully extend CWA 
deadlines. Stakeholder concerns were reflected in legal challenges to 
the July 2000 rule by a broad array of litigants. Ten petitions for 
review were filed by States, industrial and agricultural groups, and 
environmental organizations asserting that many of EPA's revisions to 
the TMDL regulations were either unlawful under the Administrative 
Procedure Act or exceeded the Agency's authority under the CWA. These 
petitions, which identified more than fifty alleged legal defects in 
the July 2000 rule, were ultimately consolidated in the American Farm 
Bureau Federation et al v. Whitman (No. 00-1320) for the District of 
Columbia Circuit United States Court of Appeals. In addition, several 
other stakeholders have intervened in these lawsuits. Some of the 
issues raised by the petitioners include the scope and content of the 
section 303(d) list, the elements of an approvable TMDL, scheduling and 
EPA backstopping of TMDLs, and the change to the NPDES regulations 
addressing EPA's authority to object to expired State permits. The 
litigation over the July 2000 rule is currently stayed pending EPA's 
determination regarding whether, and to what extent, that rule should 
be revised.
    Because of these significant concerns, EPA, on August 9, 2001, 
proposed to delay the effective date of the July 2000 rule by 18 months 
(66 FR 41817) until April 30, 2003, to allow time for reconsideration 
of specific aspects of the rule. EPA stated that it intended to use the 
time to analyze the findings and recommendations of the NRC report; to 
discuss ideas for improving the TMDL Program with a broad array of 
interested parties; and, if deemed appropriate, to revise the 
regulations through a notice and comment process. The Agency believed 
that an 18-month delay of the July 2000 rule's effective date was the 
minimum time necessary to conduct a meaningful consultation process, 
analyze and reconcile the recommendations of the various stakeholders 
and promulgate desired program changes. In the same notice EPA proposed 
to revise from April 1, 2002, until October 1, 2002, the date by which 
States are required to submit their 303(d) lists of impaired waters for 
2002. Following receipt and evaluation of comments, on October 18, 
2001, EPA published in the Federal Register a final rule delaying for 
18 months, until April 30, 2003, the effective date of the July 2000 
rule and delaying until October 1, 2002, the due date for the States' 
2002 submission of section 303(d) lists of impaired waters (66 FR 
53044).
    As part of the effort to solicit additional input on the TMDL 
Program, EPA published a notice in the Federal Register announcing the 
dates, locations and discussion themes for five ``public listening 
sessions'' addressing the Agency's TMDL Program and possible revisions 
to the TMDL rule (66 FR 51429). EPA announced that it would use the 
information received at these public listening sessions as it 
considered changes to the regulations that implement the TMDL Program 
and related provisions in the NPDES Program. These listening sessions 
were held in the following cities, each with a primary focus on a 
specific theme:
    [sbull] Chicago, Illinois (Oct. 22-23, 2001): ``Implementation of 
TMDLs Addressing Nonpoint Sources.''
    [sbull] Sacramento, California (Nov. 1-2, 2001): ``Scope and 
Content of TMDLs.''
    [sbull] Atlanta, Georgia (Nov. 7-8, 2001): ``EPA's Role, the Pace/
Schedule for Development of TMDLs, and NPDES Permitting Pre and Post 
TMDL.''
    [sbull] Oklahoma City, Oklahoma (Nov. 15-16, 2001): ``Listing 
Impaired Waters.''
    [sbull] Washington DC (Dec. 11, 2001): ``Comprehensive Discussion 
of All Listing and TMDL Issues.''
    Nearly 1,000 people attended the five meetings. At each meeting 
attendees, representing a broad cross-section of stakeholder interests, 
heard presentations from EPA representatives and other members of the 
meeting's ``listening panel,'' and participated in facilitated small-
group discussions focused on the meeting's overall theme and the 
specific discussion questions. The meetings provided participants an 
opportunity to exchange ideas with various stakeholder groups, 
including representatives from petitioners and interveners in 
litigation, and members of the public. EPA has published detailed 
summaries on its website of all the listening sessions, including oral 
and written comments from each meeting as well as letters received 
afterwards. (http://www.epa.gov/owow/tmdl/meetings). These meetings 
demonstrated that there continued to be a wide divergence of opinion 
regarding whether and how the Agency should revise the implementing 
regulations for the TMDL and NPDES Programs.
    Subsequent to the public listening sessions, EPA met individually 
with numerous public and private stakeholder groups to solicit 
additional input on how best to modify the TMDL and NPDES regulations. 
These stakeholder groups represented a broad array of interested 
parties, and included the following: The Association of State and 
Interstate Water Pollution Control Administrators; Environmental 
Council of States; Western Governors' Association; Clean Water 
Coalition; Clean Water Network; Advisory Council on Water Information; 
Interstate Commission on Water Policy; Association of Metropolitan 
Sewerage Agencies; Water Environment Federation; American Chemical 
Council; American Farm Bureau; Earthjustice Legal Defense Fund; Ocean 
Conservancy; Natural Resources Defense Council; and TMDL rule 
petitioners.

[[Page 79025]]

Between August 2001 and April 2002, EPA also attended periodic meetings 
with the United States Department of Agriculture (USDA) to solicit 
input on ways to improve the TMDL Program and to discuss approaches to 
taking advantage of USDA and State planning processes to support 
watershed-based TMDLs. EPA formed an internal EPA workgroup in October 
2001 to begin evaluating the future direction and scope of the TMDL 
Program. Draft concepts developed by the workgroup have been shared 
with stakeholder groups, and the workgroup has developed a draft 
proposal that would amend the regulations at 40 CFR part 130 as well as 
some NPDES Program provisions.

D. Why Is EPA Proposing To Withdraw the July 2000 TMDL Rule?

    Despite the efforts described above, the Agency needs more time to 
evaluate whether and how to revise the currently-effective regulations. 
At this point, EPA is not sure how long that effort will take. However, 
EPA believes that continuing to examine the regulatory needs of the 
TMDL and NPDES Programs when faced with the impending April 30, 2003, 
effective date for the July 2000 rule sends confusing signals to the 
States and other interested parties about which set of rules they 
should be prepared to implement. Due to the significant controversy, 
pending litigation and lack of stakeholder consensus on key aspects of 
the July 2000 rule, it has become apparent to EPA that, as promulgated, 
the July 2000 rule cannot function as the blueprint for an efficient 
and effective TMDL Program without significant revisions. Moreover, the 
existence of the approaching April 30, 2003, effective date for the 
July 2000 rule--a mere four months away--is beginning to act as an 
unnecessary and artificial distraction from an orderly completion of 
the Agency's efforts now underway to chart the future direction and 
scope of the TMDL Program. Consequently, EPA is proposing to withdraw 
the July 2000 TMDL rule so that the Agency can consider whether and how 
to revise the TMDL rules without concern that those efforts will be 
adversely affected by the July 2000 rule's effective date.
    Withdrawal of the July 2000 rule will not adversely affect the 
increasing momentum of State TMDL Programs across the country. Should 
EPA ultimately decide to withdraw the July 2000 rule, the effect of 
such a withdrawal would be that the TMDL Program would continue to 
operate under the rules promulgated in 1985, as amended in 1992, at 40 
CFR part 130. Thus, there would be no gap in regulatory coverage. 
Indeed, States would continue to establish lists of impaired waters and 
TMDLs according to the currently-effective regulations. Pursuant to 
these rules, States were required to submit new lists of impaired 
waters by October 1, 2002, and as described in section A above, these 
currently effective rules provide a comprehensive set of requirements 
for the identification of impaired waters, establishment of TMDLs and 
incorporation of TMDLs into State water quality management plans.
    One impetus for the July 2000 rule was concern that States were not 
making enough progress in listing impaired waters, and scheduling, 
developing and implementing TMDLs. However, since 1996, when EPA 
established a Federal Advisory Committee to provide recommendations for 
revisions to the TMDL regulations, there have been many non-regulatory 
improvements to the TMDL Program that have resulted in States 
increasing the quality of their section 303(d) lists and greatly 
accelerating the pace of their TMDL development. States and EPA are 
continuing to establish TMDLs in accordance with schedules agreed upon 
between the States and EPA as well as in accordance with court orders 
and consent decrees (this is discussed in greater detail, below). The 
Agency has also increased outreach to States and issued TMDL technical 
guidance, monitoring guidance, and CWA section 319 nonpoint source 
guidance to help States develop better methods to more accurately and 
consistently monitor and list impaired waters, establish TMDLs, and 
identify the most appropriate and cost-effective methods and approaches 
to implement the TMDL Program. This outreach and guidance has taken the 
form of detailed policy memoranda, national guidance documents, 
technical protocol documents for developing pollutant-specific TMDLs, 
and information on best management practices for controlling nonpoint 
sources. A complete list of these documents can be found at EPA's 
website: http://oaspub.epa.gov/waters/national_rept.control. Key 
policy documents include: ``New Policies for Establishing and 
Implementing Total Maximum Daily Loads (TMDLs)'', August 8, 1997; 
``Guidance: Use of Fish and Shellfish Advisories and Classifications in 
303(d) and 305(b) Listing Decisions''--Oct. 24, 2000; ``Supplemental 
Guidelines for the Award of Section 319 Nonpoint Source Grants to 
States and Territories in FY 2002 and Subsequent Years''--September 5, 
2001; ``2002 Integrated Water Quality Monitoring and Assessment Report 
Guidance''--November 19, 2001; `` Proposed Water Quality Trading 
Policy''--May 15, 2002; (http://www.epa.gov/owow/watershed/trading/tradingpolicy.html); and ``EPA Review of 2002 Section 303(d) Lists and 
Guidelines for Reviewing TMDLs under Existing Regulations issued in 
1992''--May 20, 2002.
    States are the primary entities responsible for developing and 
implementing TMDLs under the CWA and EPA recognizes the financial 
burden faced by States in this effort. From FY 1999 to 2002, EPA has 
provided the States almost $30 million for TMDL-specific activities, 
including section 303(d) list development, water quality assessments/
screening, and pollutant modeling support. States have used this 
funding to secure technical support through contracts and through 
grants to universities and not-for-profit organizations and 
institutions. The Agency also allowed the use of a portion of State 
grants for water program administration (CWA section 106 grants) and 
nonpoint source programs (CWA section 319 grants) for developing and 
implementing TMDLs. The guidelines for use of the section 319 funds 
recommend focusing incremental 319 grant dollars ($100 million) on 
implementing on-the-ground measures and practices that would reduce 
pollutant loads in accordance with approved TMDLs for waters that are 
impaired in whole or in part by nonpoint sources. In addition, since 
1998 the Agency has spent more than $11 million to support development 
of technical guidance for developing TMDLs and identifying the most 
appropriate and efficient best management practices for nonpoint 
sources.
    Helped by these programmatic initiatives, States have made 
considerable progress in developing TMDLs. Moreover, mechanisms are in 
place to ensure that those efforts do not diminish. Currently, there 
are 22 States in which EPA is under court order, generally resulting 
from entry of a consent decree, to establish TMDLs if States do not do 
so. Twelve consent decrees have been entered since 1999, the year the 
July 2000 TMDL rule revisions were proposed. Between 1996 and 1999, EPA 
and the States established approximately 800 TMDLs. Since then, and 
despite the fact that the July 2000 rule never became effective, EPA 
and the States have established more than an additional 7,000 TMDLs; 
and they continue to improve the pace at which TMDLs are established. 
Given

[[Page 79026]]

this progress and the States' adoption since 1998 of schedules for TMDL 
development, EPA anticipates no reduction in the pace of TMDLs being 
developed even if the July 2000 rule does not take effect.
    Another aim of the July 2000 rule was to promote more comprehensive 
State inventories of impaired waters. Under authority of the rules 
promulgated in 1985 and 1992, EPA issued the 2002 Integrated Water 
Quality Monitoring and Assessment Report Guidance (November 19, 2001) 
to promote a more integrated and comprehensive system of accounting for 
the nation's water quality attainment status. The guidance recommends 
that States submit an ``Integrated Report'' that will satisfy CWA 
requirements for both section 305(b) water quality reports and section 
303(d) lists. The objectives of this guidance are to strengthen State 
monitoring programs, encourage timely monitoring to support decision 
making, increase numbers of waters monitored, and provide a full 
accounting of all waters and uses. The guidance encourages a rotating 
basin approach, and strengthened State assessment methodologies, and is 
intended to improve public confidence in water quality assessments and 
303(d) lists. EPA extended the date for submission of 2002 lists by six 
months (66 FR 53044) to allow States and Territories time to 
incorporate some or all of the recommendations suggested by EPA in this 
2002 Integrated Water Quality Monitoring and Assessment Report 
Guidance. At this time, most States and Territories have submitted a 
2002 report which incorporates some or all of the elements of the 
guidance. In addition to releasing the Integrated Reporting Guidance, 
EPA also held five stakeholder meetings in 2001 and 2002 to review and 
comment on a best practices guide that EPA was developing for States on 
consolidated assessment and listing methodologies. This guidance 
``Consolidated Listing and Assessment Methodology-Toward a Compendium 
of Best Practices'' was released in July 2002.
    For all the above reasons, the Agency believes that it is 
reasonable to withdraw the July 2000 rule. Continuing to evaluate 
whether and how to revise the current regulations under the April 30, 
2003, effective date deadline is confusing to the States and other 
interested parties, and counterproductive to EPA's own continuing 
efforts to assess the future direction and scope of the TMDL Program. 
Moreover, in light of the significant progress States have made in the 
past three years in establishing TMDLs under the currently effective 
rules, EPA does not foresee any harm to States' efforts to implement 
section 303(d) from withdrawal of the July 2000 rule pending completion 
of EPA's effort. Consequently, the Agency is proposing to withdraw the 
July 2000 rule.

E. Request for Comment

    EPA invites and will consider comments received during the 30-day 
comment period that address the question of whether the Agency should 
withdraw the July 2000 rule. EPA is not requesting comments on the 
currently effective rule at 40 CFR part 130 or what, if any, changes 
the Agency should propose to the TMDL rules in effect at 40 CFR part 
130. EPA's consideration of that issue is continuing and when or if EPA 
proposes changes to the currently-effective TMDL regulations, EPA will 
provide for public comment in a separate Federal Register notice. 
Should EPA ultimately decide to withdraw the July 2000 rule, the effect 
of such a withdrawal would be that the TMDL Program would continue to 
operate under the rules promulgated in 1985, as amended in 1992, at 40 
CFR part 130. Similarly, the revisions to the NPDES regulations at 40 
CFR parts 122-124 would not go into effect, but under section 
301(b)(1)(C), NPDES permits would still be required to include limits 
as stringent as necessary to meet water quality standards, and under 40 
CFR 122.44(d) permit limits would continue to be required to derive 
from and comply with water quality standards and be consistent with the 
assumptions and requirements of wasteload allocations in an approved 
TMDL.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business

[[Page 79027]]

based on SBA size standards; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. 
After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action, which would withdraw the 
July 2000 rule that has not taken effect, will not have a significant 
economic impact on a substantial number of small entities. Like the 
July 2000 rule, this proposed rule will not impose any requirements on 
small entities. This action would withdraw the July 2000 rule, which 
has never taken effect.

D. Unfunded Mandates Reform Act (UMRA) of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, tribal and local 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written Statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Like the July 2000 rule, today's proposed rule, which would 
withdraw the July 2000 rule that has not taken effect, contains no 
Federal mandates (under the regulatory provisions of title II of the 
UMRA) for State, local, or tribal governments or the private sector. 
The proposed rule imposes no enforceable duty on any State, local or 
tribal government or the private sector. Thus, today's rule is not 
subject to the requirements of sections 202 and 205 of UMRA. For the 
same reason, EPA has also determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. This action does not impose any requirement on any 
entity. There are no costs associated with this action. Therefore, 
today's rule is not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposal does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government as 
specified in executive Order 13132. It proposes to withdraw the July 
2000 rule, which has never taken effect. Thus, Executive Order 13132 
does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will 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. It 
proposes to withdraw the July 2000 rule, which has never taken effect. 
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This proposed rule is not 
subject to Executive Order 13045 because it is not economically 
significant as defined in Executive Order 12866.

H. Executive Order 13211: Energy Effects

    This rule is not a ``significant energy action'' as defined in 
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 likely to have a significant 
adverse effect on the supply, distribution, or use of

[[Page 79028]]

energy. This rule simply proposes to withdraw the July 2000 rule which 
has never taken effect. We have concluded that this rule is not likely 
to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not impose any technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 123

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Air pollution control, Hazardous 
waste, Indians-lands, Intergovernmental relations, Penalties, Reporting 
and recordkeeping requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous waste, Indians-lands, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 130

    Environmental protection, Grant programs--environmental protection, 
Indians--lands, Intergovernmental relations, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

    Dated: December 20, 2002.
Christine T. Whitman,
Administrator.

Parts 9, 122, 123, 124 and 130--Withdrawal of July 2000 Amendments

    For the reasons stated in the preamble, EPA proposes:
    1. To withdraw the amendments to 40 CFR part 9, 122, 123, 124 and 
130 published July 13, 2000 (65 FR 43586).
    a. The authority citation for part 130 continues to read as 
follows:

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

[FR Doc. 02-32582 Filed 12-26-02; 8:45 am]
BILLING CODE 6560-50-U