[Federal Register Volume 68, Number 53 (Wednesday, March 19, 2003)]
[Rules and Regulations]
[Pages 13608-13614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6574]



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Part VI





Environmental Protection Agency





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40 CFR Part 9, et al.



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; Final Rule

  Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / 
Rules and Regulations  

[[Page 13608]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[WH-FRL-7470-2]
RIN 2040-AD84


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.

ACTION: Final rule.

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SUMMARY: Today's action withdraws 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) that 
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. Today, EPA is withdrawing 
the July 2000 rule, rather than allow it to go into effect, because EPA 
believes that significant changes would need to be made to the July 
2000 rule before it could represent a workable framework for an 
efficient and effective TMDL program. Furthermore, EPA needs additional 
time beyond April 30, 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. The withdrawal of the July 
2000 rule will not impede ongoing implementation of the existing TMDL 
program. Regulations that EPA promulgated in 1985 and amended in 1992 
remain in effect for the TMDL program. EPA has been working steadily to 
identify regulatory and nonregulatory options to improve the TMDL 
program and is reviewing its ongoing implementation of the existing 
program with a view toward continuous improvement and possible 
regulatory changes in light of stakeholder input and recommendations.

DATES: The July 2000 rule amending 40 CFR parts 9, 122, 123, 124 and 
130, published on July 13, 2000, at 65 FR 43586, is withdrawn as of 
April 18, 2003. This rule is considered final for purposes of judicial 
review as of 1 p.m. eastern time, on April 2, 2003, as provided in 40 
CFR 23.2.

ADDRESSES: The complete record for the final rule, Docket ID No. OW-
2002-0037, 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.

FOR FURTHER INFORMATION CONTACT: For information about today's final 
rule, 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 Final Rule

                 Table of Potentially Regulated Entities
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                                             Examples of potentially
                Category                        regulated entities
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Governments............................  States, Territories and Tribes
                                          with CWA responsibilites
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    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. How Can I Get Copies of This Document and Other Related Information

    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 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. 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 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. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility previously mentioned. Once in the electronic system, select 
``search'' and then key in the appropriate docket identification 
number.

D. Explanation of Today's Action

I. Background

    On December 27, 2002, EPA proposed to withdraw final regulations 
affecting the TMDL program (67 FR 79020) that were published in the 
Federal Register on July 13, 2000 (65 FR 43586). Among other things, 
the July 2000 rule was 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 EPA to approve, as part of the 
TMDL, implementation plans containing lists of actions and expeditious 
schedules to reduce pollutant loadings. Finally, the rule included 
changes to the NPDES program 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.

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    The July 2000 rule was controversial from the outset. Both the 
proposed and final rules generated considerable controversy, as 
expressed in Congressional action, letters, testimony and public 
meetings. Even before it was published in the Federal Register on July 
13, 2000, Congress prohibited EPA from implementing the final rule 
through a spending prohibition attached to an FY2000 appropriations 
bill that prohibited EPA from using funds ``to make a final 
determination on or implement'' the July 2000 rule. This 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. Because of the continuing 
controversy regarding the July 2000 rule, EPA proposed on August 9, 
2001 (66 FR 41817), and promulgated on October 18, 2001 (66 FR 53044), 
a new effective date of April 30, 2003, for the July 2000 rule, to 
allow time for reconsideration of the rule.
    Stakeholder concerns were also 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 50 alleged legal defects in the 
July 2000 rule, were ultimately consolidated in American Farm Bureau 
Federation et al. v. Whitman (No. 00-1320) in the United States Court 
of Appeals for the District of Columbia Circuit. In addition, several 
other stakeholders have intervened in these lawsuits. 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.
    In the December 27, 2002, preamble to the proposed withdrawal rule, 
EPA explained why it had decided to withdraw the July 2000 rule. EPA 
said that by continuing to examine the regulatory needs of the TMDL and 
NPDES programs against the impending April 30, 2003, effective date for 
the July 2000 rule, the Agency was sending confusing signals to the 
States and other interested parties about which set of rules they 
should be prepared to implement. Further, because of the significant 
controversy, pending litigation and lack of stakeholder consensus on 
key aspects of the July 2000 rule, the Agency said that the July 2000 
rule could not function as the blueprint for an efficient and effective 
TMDL program without significant revisions. Moreover, the Agency said 
it needed more time to consider whether and how to revise the 
currently-effective TMDL rules without concern that those efforts would 
be adversely affected and distracted by the July 2000 rule's impending 
effective date. In the preamble to the proposed rule, the Agency also 
explained why it believes that, given the significant progress States 
have made during the past four years in developing TMDLs, withdrawal of 
the July 2000 rule will not compromise continuing efforts to implement 
section 303(d) of the Clean Water Act. EPA's rationale for proposing 
the withdrawal of the July 2000 rule is more fully explained in the 
preamble accompanying the proposal (67 FR 79020).

II. Response to Comments and Final Decisions

    EPA received approximately 90 separate written comments regarding 
its proposal to withdraw the July 2000 rule. These comments came from a 
broad cross-section of stakeholders, including agricultural and 
forestry groups, business and industry entities and trade associations, 
State agencies, environmental organizations, professional associations, 
academic groups and private citizens. An overwhelming majority of the 
commenters (more than 90 percent) supported EPA's proposed action to 
withdraw the July 2000 rule. These commenters generally agreed with the 
Agency's rationale for withdrawing the rule as discussed in the 
December 27, 2002, preamble. Commenters reiterated EPA's concerns about 
the potential distraction and confusion caused by the July 2000 rule's 
impending deadline, as well as the controversy surrounding various 
provisions of the rule and uncertainty caused by the pending DC Circuit 
Court litigation. Others stated that the July 2000 rule was no longer 
needed because of the increased technical guidance that EPA has 
provided to States to improve the quality of their lists of impaired 
waters, and the increased funding provided by EPA for developing TMDLs. 
Many commenters said that States have made significant strides in 
developing TMDLs since the rule was originally proposed and promulgated 
and, therefore, the July 2000 rule was not needed. Several commenters 
stated that allowing the July 2000 rule to go into effect would be 
disruptive to ongoing TMDL development efforts, and that withdrawing 
the July 2000 rule would give the Agency additional time to evaluate 
the need for new TMDL regulations. Some commenters offered additional 
reasons for supporting withdrawal of the July 2000 rule. Although most 
of these reasons are consistent with EPA's rationale for withdrawing 
the July 2000 rule, some are not. For example, some commenters, though 
supporting EPA's decision to withdraw the July 2000 rule, also 
questioned the legal soundness of certain provisions of that rule. EPA 
does not necessarily agree with those comments, and its decision today 
to withdraw the July 2000 rule should not be understood as an implicit 
endorsement of those views and comments.
    A small minority of commenters (four) disagreed with EPA's proposal 
to withdraw the July 2000 rule. One commenter asserted that withdrawing 
the July 2000 rule would ``postpone the TMDL program for several more 
years'' and, by removing incentives to reduce pollution, would hinder 
progress ``to implement the TMDL program'' and ``only make the problem 
worse.'' Another commenter said that not going forward with the July 
2000 rule would ``undermine the momentum of State programs'' that have 
been ``waiting to see Federal guidelines to develop programs of their 
own.'' EPA does not agree with these comments. Indeed, one State in its 
comments supporting withdrawal said that the July 2000 rule ``would 
undo much of the momentum and success'' of the State's ongoing and 
successful TMDL program. As described in more detail in the December 
27, 2002, preamble, in recent years, EPA and the States have made great 
strides in implementing the existing 303(d) program to list impaired 
waters and develop and implement TMDLs to restore impaired waters. 
States have substantially improved their TMDL programs while the Agency 
has provided the States with significant increases in technical and 
financial support to expand and strengthen all elements of their 
programs. From FY 1999 to 2002, EPA has provided the States almost $30 
million for TMDL-specific activities and allowed States to use a 
portion of State grants for water program administration (CWA section 
106 grants) and nonpoint source programs (CWA sections 319 grants) for 
developing and implementing TMDLs. In addition, since 1998, EPA 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

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sources. A complete list of these guidance documents can be found at: 
http://www.epa.gov/edocket.
    Helped by these programmatic initiatives, States have made 
considerable progress in developing TMDLs despite the fact that the 
July 2000 rule never became effective. As stated in the December 27, 
2002, proposal, 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 States continue to improve the 
pace at which TMDLs are established. Given this progress and the 
States' adoption since 1998 of schedules for TMDL development, EPA 
anticipates no reduction in the pace of TMDLs being developed and the 
associated improvement in water quality, even if the July 2000 rule 
does not take effect.
    One commenter objected to withdrawing the July 2000 rule because of 
provisions contained in the rule for expanded public involvement in the 
listing and TMDL development process. By not implementing the July 2000 
rule, the commenter asserted that the public remains ``shut out'' of 
the listing and TMDL development process, which allows the States to 
develop impaired waters lists and establish TMDLs ``without adequate 
public scrutiny.'' EPA disagrees with this comment. While it is true 
that the July 2000 rule would have clarified, and, in some measure 
strengthened, the public participation components of EPA's currently-
effective TMDL regulations, the current statutory and regulatory 
provisions (as supplemented by EPA guidance to the States and its 
Regional Offices) already allow for public scrutiny and participation 
in the listing and TMDL development process. EPA's existing regulations 
require that the process for involving the public in a State's listing 
and TMDL program ``shall be clearly described in the State Continuing 
Planning Process (CPP)'' (40 CFR 130.7(a)), and Sec.  130.7(c)(1)(ii) 
requires that a State's calculations to establish TMDLs be subject to 
public review, as defined in the State CPP. Additionally, EPA 
regulations require that when EPA disapproves and establishes a list or 
a TMDL, EPA must seek public comment (40 CFR 130.7(d)).
    EPA's policy has always been that there should be full and 
meaningful public participation in both the listing and TMDL 
development process, and EPA has issued guidance in addition to the 
regulations to support this effort. In EPA's ``Guidelines for Reviewing 
TMDLs Under Existing Regulations Issued in 1992'' (May 20, 2002), EPA 
states that, in addition to the TMDL regulatory requirements, ``final 
TMDLs submitted to EPA for review and approval should describe the 
State's/tribe's public participation process, including a summary of 
significant comments and the State's/tribe's responses to those 
comments.'' The guidance also states that ``provision of inadequate 
public participation may be a basis for disapproving a TMDL. If EPA 
determines that a State/tribe has not provided adequate public 
participation, EPA may defer its approval action until adequate public 
participation has been provided for, either by the State/tribe or by 
EPA.''
    EPA's ``Integrated Report'' guidance to States, tribes and EPA 
Regions (Integrated Water Quality Monitoring and Assessment Report 
(November 19, 2001)) states that ``States and territories should 
provide for full public participation in the development of their 
Integrated Report prior to its submission to EPA. EPA believes that 
public understanding of how standard attainment determinations are made 
for all A[sessement] U[nits]s is crucial to the success of water 
quality programs and encourages active stakeholder participation in the 
assessment and listing process.... EPA will consider how the State or 
territory addressed the comments...when approving or disapproving the 
303(d) list of AUs (Category 5).''
    Most recently, in May 2002, EPA issued guidance to its Regional 
Offices stating that when reviewing State 303(d) lists, EPA Regions 
should review how States provided for public participation to ensure 
that each State carried out its public participation process consistent 
with the State's public participation requirements (``Recommended 
Framework for EPA Approval Decisions on 2002 State Section 303(d) List 
Submission.'') If the Region believes a State has not provided adequate 
public participation, the guidance provides steps the Region should 
take in working with a State to provide for additional public 
participation, and how the State or, if necessary, the Region, should 
consider and address public comments prior to EPA's approval or 
disapproval of the list. Finally, it is important to note that nearly 
all of the States already have public participation requirements under 
their own State laws for the listing and TMDL development processes, 
and also provide for public notice.
    For all of these reasons, EPA believes that adequate public 
participation opportunities exist under the currently-effective 
regulations and that withdrawing the July 2000 rule will not limit 
meaningful public participation in the listing and TMDL development 
process.
    One commenter stated that, by not implementing the July 2000 rule, 
States would continue to have inadequate monitoring programs and 
continue to develop lists of impaired waters based on inadequate data. 
EPA disagrees. EPA recognizes that no State has a perfect monitoring 
and listing program. Monitoring and assessment programs are expensive 
to assemble and implement. While the July 2000 rule would have 
clarified certain aspects of the existing TMDL regulations regarding 
listing methodologies, that rule, by itself, would not have provided 
the additional funding needed by many States to expand their monitoring 
and assessment programs. Moreover, many of the important listing 
clarifications and improvements contained in the July 2000 rule have 
already been provided to, and are currently being implemented by, 
States, even without the July 2000 rule having gone into effect.
    To assist in implementation of the currently-effective TMDL rules, 
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 
impaired waters. 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 guidance. 
Approximately half of the States and Territories have submitted a 2002 
report which incorporates some or all of the elements of this guidance. 
In addition, 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

[[Page 13611]]

Methodology--Toward a Compendium of Best Practices'') was released in 
July 2002. EPA is continuing to work with States to clarify and 
strengthen their monitoring programs and to help improve the quality 
and credibility of their lists of waters that require a TMDL.
    One commenter stated that withdrawing the July 2000 rule would 
continue ``to make EPA and the States the target of numerous lawsuits--
resulting in the courts driving environmental policy, rather than EPA 
and the States.'' EPA does not agree with this comment. EPA does not 
agree that there are, in the commenter's words, ``weaknesses'' with the 
currently-effective TMDL regulations that make the Agency any more 
vulnerable to litigation than if it did not withdraw the July 2000 
rule. Indeed, we believe withdrawing the July 2000 rule will render 
moot the pending D.C. Circuit Court challenge to that rule. Before July 
2000, EPA was named as defendant in over 30 lawsuits challenging State 
lists and the pace of State TMDL development. Since July 2000, only a 
few such lawsuits have been filed, even though the July 2000 rule never 
became effective. Clearly, the number of such suits has declined as the 
States and EPA have done a better job under the 1985/1992 TMDL rules to 
establish lists and TMDLs. In addition, to date only a handful of 
lawsuits have been filed challenging any of the more than 7,000 TMDLs 
that the States or EPA have established. Given these numbers, the 
Agency does not believe there is anything inherently litigation-
provoking in the currently-effective TMDL rules and, based on this 
record, EPA does not believe that withdrawing the July 2000 rule will 
result in increased TMDL litigation.
    One commenter objected to withdrawing the July 2000 rule because of 
concerns regarding the inconsistent implementation of the program under 
the currently-effective regulations and EPA guidance. EPA does not 
agree that inconsistent implementation of the TMDL program is a 
significant problem. Nor, for that matter, would implementation of the 
July 2000 rule remove all potential for divergent implementation 
approaches by the different States and EPA Regions. As discussed 
previously, since publication of the July 2000 rule, EPA has issued 
numerous detailed policy memoranda, national guidance documents, 
technical protocol documents, and information on best management 
practices so that States can improve their methods to monitor and list 
impaired waters, and develop and implement TMDLs in a consistent, yet 
flexible way. A complete list of these guidance documents can be found 
at http://www.epa.gov/edocket. As noted previously, EPA has issued 
detailed national guidance to EPA Regions on reviewing and approving 
lists and TMDLs, (``EPA Review of 2002 Section 303(d) Lists and 
Guidelines for Reviewing TMDLs Under Existing Regulations Issued in 
1992'' (May 20, 2002)) and is working closely with all the EPA Regional 
Offices to ensure that their regional review and approval of lists and 
TMDLs correspond with this national policy. In addition, EPA has 
recently released a guidance on ``Establishing Total Maximum Daily Load 
(TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES 
Permit Requirements Based on Those WLAs'' (November 22, 2002). This 
memorandum clarifies EPA's policy on wasteload allocations, 
specifically that NPDES-regulated storm water discharges must be 
included in the wasteload allocation component of the TMDL (see 40 CFR 
130.2(h)) and affirms EPA's view that an iterative, adaptive management 
BMP approach is appropriate for permitting such discharges.
    EPA has also sponsored numerous TMDL and TMDL-related training 
sessions and meetings to clarify and provide detailed technical support 
to the States and Regions to help ensure consistency in listing and 
TMDL development (see EPA's website for a complete list of recent 
activities: http://www.epa.gov/owow/tmdl/training.) EPA also has made 
available to the public the ``National TMDL Tracking System'' (NTTS), 
which includes all State-specific data on approved 303(d) lists and 
approved TMDLs as well as a national summary of impaired waters and 
TMDLs that have been approved for these waters (http://www.epa.gov/owow/tmdl/.) In addition, since the Spring of 2001, EPA has held 
regular conference calls with EPA Regions and the States to discuss and 
answer any questions regarding the TMDL program, including technical 
and policy questions. EPA believes that these guidance documents, the 
National TMDL Tracking System, training, workshops, and close 
communication with States and EPA Regional Offices have improved the 
national consistency in how the TMDL program is implemented at both the 
Federal and State level, while accommodating the inherent variability 
in States' water quality standards, land and water characteristics, and 
available resources.
    As to the commenter's point that ``there are significant 
differences between the July 2000 rule and the 1985, 1992 rule * * * 
[that] cannot adequately be addressed through EPA guidance,'' EPA notes 
that its review of the currently-effective TMDL regulations in light of 
the July 2000 rule is ongoing. EPA has not yet decided what, if any, 
changes to propose to those regulations. As it continues to consider 
the need for regulatory changes, EPA will consider the commenter's 
suggestions regarding which elements belong in regulation and which may 
be appropriately left to guidance. EPA will also consider the 
commenter's suggestion that the Agency should allow the public to 
participate in the development of future program guidance.
    One commenter said EPA had not provided enough information to allow 
it to make a ``well-reasoned decision or provide meaningful comment on 
EPA's proposal to withdraw the July 2000 rule.'' Nevertheless, that 
commenter did oppose EPA's proposed action. EPA disagrees with the 
claim that it did not provide enough information for the public to 
provide meaningful comment, and given the number of other comments to 
the proposal addressing EPA's rationale, EPA believes that it 
adequately discussed its justification for withdrawing the July 2000 
rule in the December 27, 2002, preamble.
    One commenter opposed withdrawal of the July 2000 rule because it 
believed that the rule was ``necessary'' to ``aid in the control of 
nonpoint source pollution.'' EPA disagrees with this comment. EPA notes 
that there are numerous existing Clean Water Act authorities and 
programs, supplemented by other Federal and State programs and 
initiatives, that address nonpoint source pollution.
    One commenter opposed withdrawal of the ``TMDL program'' because it 
believed ``much time went into the planning of this program to protect 
waterways * * * [and] it needs to be tied into the NPDES permit program 
and should be customized to fit individual permits.'' EPA is not sure 
it fully understands this comment. To the extent the commenter is 
opposed to withdrawal of the ``TMDL program,'' EPA notes that it is 
only withdrawing the July 2000 rule, which has never become effective, 
and not the TMDL program itself. EPA agrees that it took much planning 
to develop the July 2000 rule, but, for the reasons already discussed 
in this preamble and in the December 27, 2002, preamble, EPA has 
decided to withdraw that rule, regardless of the effort that went into 
its development. EPA also notes that the currently-effective TMDL 
program is ``tied into the NPDES permit program'' in that, among other 
things, permit

[[Page 13612]]

effluent limits must be consistent with the assumptions and 
requirements of any available wasteload allocation for the discharge 
prepared by the State and approved by EPA pursuant to 40 CFR 130.7. See 
40 CFR 122.44(d)(1)(vii)(B). Similarly, 40 CFR 122.4(i) addresses what 
requirements must be met for a permit to be issued to a new source or 
new discharger who proposes to discharge a pollutant for which a TMDL 
has been prepared.
    One State commenter, while supporting withdrawal of the July 2000 
rule, recommended that as part of this final rulemaking EPA immediately 
modify 40 CFR 130.7 to require State 303(d) lists every four (instead 
of every two) years. As EPA continues to consider whether and how to 
revise the TMDL program, EPA will consider the commenter's suggestion.
    One commenter asked for ``an evaluation of potential changes from 
rule making, implementation and funding of Clean Water Act programs and 
enforcement relative to the Russian River [California] * * * [and an] 
assurance that this regulatory shift will not result in degradation of 
either the quality or quantity of our local resources.'' The commenter 
did not appear to take a position on the proposed withdrawal of the 
July 2000 rule, and EPA believes this comment is beyond the scope of 
the proposal and does not require a response.
    One electronic comment merely stated as follows: ``We strongly 
oppose any reduction of restrictions on wetland maintenance.'' Again, 
the commenter did not appear to take a position on the proposed 
withdrawal of the July 2000 rule, and EPA believes this comment is 
beyond the scope of the proposal and does not require a response.
    More than half the commenters requested or encouraged EPA to pursue 
further rulemaking once the July 2000 rule was withdrawn. Many of these 
commenters submitted specific recommendations regarding how EPA should 
structure a new TMDL rule. Some commenters requested that this new 
rulemaking occur as quickly as possible. One commenter said it 
``supports EPA's proposed withdrawal of the 2000 rule, assuming that 
EPA intends to replace that rule in a timely manner with an improved 
rule now known as the Watershed Rule.'' Another commenter said it 
``will only support withdrawal of the July 2000 rule if EPA moves 
quickly to propose and promulgate a Watershed Rule that provides a 
comprehensive framework for the evolving TMDL program.'' Three 
commenters who supported withdrawal of the July 2000 rule advised 
against a new rulemaking saying that it ``would be disruptive and would 
only derail State momentum to clean up our waterways.'' Two other 
commenters cautioned that a new regulatory proposal ``could slow needed 
progress'' and strongly urged the Agency ``not to propose any 
regulatory or other changes that would cripple this vitally important 
water clean up program.''
    In response to these comments regarding the future direction of the 
TMDL program, EPA restates that it has not yet completed its evaluation 
regarding whether and how to revise the currently-effective TMDL rules. 
Nor can EPA commit to how long it will take to complete that process. 
EPA is committed to structuring a flexible, effective TMDL program that 
States, territories and authorized tribes can support and implement. 
EPA will carefully consider all of the past and recently-provided 
commenters' recommendations as it continues to evaluate whether and how 
to revise the currently-effective TMDL regulations using new regulatory 
or non-regulatory approaches. EPA, to the best of its ability, will 
continue to meet and share information with stakeholders regarding this 
effort, and will provide an opportunity for public comment in a 
separate Federal Register notice if the Agency decides to move forward 
with a new rulemaking.
    After carefully considering all the comments received in response 
to its December 27, 2002, proposal, EPA is today promulgating a final 
rule that withdraws the July 2000 rule. EPA is withdrawing the July 
2000 rule, rather than allowing it to go into effect, because EPA 
believes that significant changes would need to be made to the July 
2000 rule before it could represent a workable framework for an 
effective TMDL program. 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, and EPA is not sure how long that effort will take. In 
light of the significant progress States have made in the past three 
years establishing TMDLs under the currently-effective rules, EPA does 
not believe that withdrawing the July 2000 rule will impede States' 
efforts to implement section 303(d) to work towards cleaning up the 
nation's waters and meeting water quality standards.
    Today's final rule does not change any part of the currently 
effective TMDL regulations promulgated in 1985, as amended in 1992, at 
40 CFR part 130 or the NPDES regulations at parts 122--124.

III. 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.

[[Page 13613]]

    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 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 final rule on small 
entities, I certify that this action, which withdraws 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 final rule will not impose any requirements on small 
entities. This action withdraws 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 final rule, which withdraws 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 final 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 action 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 finalizes the withdrawal of the 
July 2000 rule, which has never taken effect. Thus, Executive Order 
13132 does not apply to this rule.
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 final 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 
withdraws the July 2000 rule, which has never taken effect. Thus, 
Executive Order 13175 does not apply to this rule.
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 final rule is not subject 
to Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866.

[[Page 13614]]

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 likely to have a significant 
adverse effect on the supply, distribution, or use of energy. This rule 
simply finalizes the withdrawal of 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 final rulemaking does not impose any technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
J. Congressional Review Act
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Fairness Act of 1996, generally provides that 
before a rule may take effect, the agency promulgating the rule must 
submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective on April 18, 2003.

List of Subjects

40 CFR Part 9

    Environmental protection, 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.

    The authority citation for part 130 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.
    For the reasons stated in the preamble, EPA withdraws the final 
rule amending 40 CFR parts 9, 122, 123, 124 and 130 published July 13, 
2000 (65 FR 43586).

    Dated: March 13, 2003.
Christine T. Whitman,
Administrator.
[FR Doc. 03-6574 Filed 3-18-03; 8:45 am]
BILLING CODE 6560-50-P