[Federal Register Volume 68, Number 215 (Thursday, November 6, 2003)]
[Rules and Regulations]
[Pages 62740-62744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27948]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7584-1]


Water Quality Standards; Withdrawal of Federal Nutrient Standards 
for the State of Arizona

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to amend the Federal regulations to 
withdraw water quality criteria applicable to Arizona. In 1976, EPA

[[Page 62741]]

promulgated Federal criteria for nutrients in Arizona. The Federal 
criteria consisted of numeric ambient water quality criteria for 
nutrients for eleven river segments and narrative water quality 
criteria for nutrients applicable to all surface waters in Arizona. 
Arizona has now adopted its own numeric and narrative water quality 
criteria for nutrients, which EPA has approved. Arizona has also 
established and EPA has approved implementation procedures for its 
narrative nutrient water quality criteria. Therefore, EPA has 
determined that the Federally promulgated criteria for Arizona are no 
longer needed and is withdrawing the Federal criteria for nutrients in 
Arizona.

DATES: This rule is effective on December 8, 2003.

ADDRESSES: The supporting record for this decision may be inspected at 
EPA Region 9, 75 Hawthorne Street, Water Division, Clean Water Act 
Standards and Permits Office, San Francisco, CA 94105, Monday through 
Friday, excluding legal holidays, during normal business hours of 9 
a.m. to 5:00 p.m. Please contact Gary Sheth, as listed in the FOR 
FURTHER INFORMATION CONTACT section, before arriving.
    A copy of Arizona's water quality standards may be obtained 
electronically from EPA's Water Quality Standards Repository, at http://www.epa.gov/waterscience/wqs/.

FOR FURTHER INFORMATION CONTACT: Gary Sheth at EPA Region 9, Water 
Division, Clean Water Act Standards and Permits Office (WTR-5), 75 
Hawthorne Street, San Francisco, CA 94105 (tel: 415-972-3516, fax: 415-
947-3545) or e-mail to [email protected], or Kellie Kubena at EPA 
Headquarters, Office of Water (4305T), 1200 Pennsylvania Ave, NW., 
Washington, DC 20460 (tel: 202-566-0448, fax: 202-566-0409) or e-mail 
to [email protected].

SUPPLEMENTARY INFORMATION: 

I. Potentially Regulated Entities

    No one is regulated by this rule. This rule merely withdraws 
certain Federal water quality criteria for nutrients applicable in 
Arizona.

II. Background

A. What Are the Statutory and Regulatory Requirements Relevant to This 
Action?

    Section 303(c) (33 U.S.C. 1313(c)) of the Clean Water Act (CWA or 
Act) directs States, with oversight from EPA, to adopt water quality 
standards to protect the public health and welfare, enhance the quality 
of water and serve the purposes of the Act. States are required to 
develop water quality standards for waters of the United States within 
the State. Section 303(c) and EPA's implementing regulations provide 
that a water quality standard shall include the designated use or uses 
to be made of the water, the water quality criteria necessary to 
protect those uses, and an antidegradation policy. 33 U.S.C. 
1313(t)(2)(A); 40 CFR 131.10-.12. States may also include in their 
water quality standards policies generally affecting the standards' 
application and implementation. 40 CFR 131.6(f); 40 CFR 131.13. States 
are required to review their water quality standards at least once 
every three years and, if appropriate, revise or adopt new standards. 
33 U.S.C. 1313(c)(2). States are required to submit the results of 
their reviews to EPA. EPA then reviews the State's standards for 
consistency with the CWA and EPA's implementing regulations at 40 CFR 
part 131 and approves or disapproves any new or revised standards. 33 
U.S.C. 1313(c)(3). Section 303(c)(4) of the CWA authorizes EPA to 
promulgate water quality standards when necessary to supersede 
disapproved State water quality standards, or in any case where the 
Administrator determines that new or revised standards are necessary to 
meet the requirements of the CWA.
    EPA may issue a rule to withdraw Federal water quality standards 
promulgated for a State when the State adopts, and EPA approves, State 
water quality standards that meet the requirements of the CWA and the 
implementing Federal regulations. That is the situation here.

B. What Actions Have EPA and Arizona Taken in the Past Relating to 
Water Quality Standards for Nutrients in the State?

    In 1976, EPA determined that water quality standards for nutrients 
submitted by Arizona as of that time did not meet the CWA's 
requirements. On June 22, 1976, EPA promulgated Federal numeric 
nutrient criteria for total phosphates applicable to eleven river 
segments in Arizona, Federal numeric nutrient criteria for total 
nitrates applicable to four waterbodies, and Federal narrative nutrient 
criteria applicable to all surface waters of the United States in 
Arizona. See 40 CFR 131.31(a); 41 FR 25000 (June 22, 1976). Although 
EPA used the phrase nutrient standards to describe the water quality 
criteria for nutrients codified at 40 CFR 131.31(a), in today's action, 
EPA is using the more precise term criteria to refer to the Federal 
water quality criteria for nutrients in Arizona that EPA is 
withdrawing.
    Since EPA's promulgation of nutrient water quality criteria in 
1976, EPA has approved the numeric and narrative water quality criteria 
for nutrients adopted by Arizona. See, e.g., EPA's Federal Register 
notices of approvals at 53 FR 4209 (Feb. 12, 1988); 58 FR 62124 (Nov. 
24, 1993); 60 FR 51793 (Oct. 3, 1995). Specifically, in a series of 
actions, the Arizona Department of Environmental Quality (ADEQ) 
adopted, and EPA approved, numeric nutrient criteria for total nitrogen 
and total phosphorous applicable to specific water bodies in Arizona. 
See Arizona Administrative Code, R18-11-109, 11-110, and 11-112. 
Arizona has also adopted and EPA has approved narrative nutrient 
criteria applicable to all surface waters of the State. See Arizona 
Administrative Code, R18-11-108. Arizona's narrative nutrient criteria 
provide that ``navigable waters shall be free from pollutants in 
amounts or combinations that cause the growth of algae or aquatic 
plants that inhibit or prohibit the habitation, growth or propagation 
of other aquatic life or that impair recreational uses''. See Arizona 
Administrative Code, R18-11-108.A.5.
    In January 1996, ADEQ established implementation procedures for its 
narrative nutrient water quality criteria (see Arizona's Implementation 
Guidelines for the Narrative Nutrient Standard (http://www.sosaz.com/public_services/Title_18/18_table.htm)). On April 26, 1996, EPA 
approved these implementation procedures. On May 7, 1996, EPA 
promulgated additional water quality standards for Arizona, noting that 
the State had identified its own implementation procedures to translate 
its narrative criteria. See 61 FR 20686 (May 7, 1996). Although EPA did 
not specifically address the continuing need for the 1976 Federal 
nutrient criteria, EPA observed in that notice that Arizona's numeric 
and narrative nutrient criteria, as supplemented by the State's newly 
established implementation procedures, were consistent with the CWA. 
See 61 FR 20692 (May 7, 1996). Consistent with this earlier finding, 
EPA has determined that the 1976 Federal criteria for nutrients for 
Arizona waters are redundant and no longer necessary. On July 30, 2001, 
EPA proposed to withdraw the Federal water quality criteria for 
nutrients applicable to Arizona surface waters at 40 CFR 131.31(a). 
(See Section III for a discussion of comments received). EPA is now 
finalizing its decision to withdraw federally promulgated nutrient 
criteria applicable to Arizona.

[[Page 62742]]

    EPA notes that Arizona's adopted and approved numeric water quality 
criteria for nutrients are based on total phosphorous and total 
nitrogen whereas the numeric water quality criteria for nutrients 
promulgated by EPA in 1976 are based on total phosphates and total 
nitrates. Total phosphorous and total nitrogen are more encompassing 
measurements of the presence of these types of nutrients than total 
phosphates and total nitrates, for which EPA promulgated water quality 
criteria in 1976, because elemental phosphorous and nitrogen can be 
present in different forms under different conditions (including, but 
not limited to, phosphates and nitrates). For this reason, EPA 
currently recommends adopting criteria for total phosphorous and total 
nitrogen. See Nutrient Criteria Technical Guidance Manual: Lakes and 
Reservoirs, EPA-822-B-00-001; Ambient Water Quality Criteria 
Recommendations: Lakes and Reservoirs in Nutrient Ecoregion II, EPA-
822-B-00-007; Ambient Water Quality Criteria Recommendations: Rivers 
and Streams in Nutrient Ecoregion II, EPA 822-B-00-015; Ambient Water 
Quality Criteria Recommendations: Rivers and Streams in Nutrient 
Ecoregion III, EPA 822-B-00-016. Although EPA is not able to directly 
compare Arizona's nutrient criteria based on total phosphorous and 
total nitrogen with the Federally promulgated criteria based on total 
phosphates and total nitrates, the CWA and EPA's regulations at 40 CFR 
131.11 only require that States adopt criteria that are scientifically 
defensible and sufficiently detailed to protect the designated uses of 
the waterbodies. When EPA approved these criteria, EPA determined that 
they met this requirement and adequately protected Arizona waters from 
excess nutrients (the same objective of the 1976 Federal nutrients 
water quality criteria). For more detailed information on EPA's 
analysis, see EPA's approval decisions contained in the docket for this 
rulemaking

C. What Water Quality Standards Will Apply Now That EPA Is Withdrawing 
the Federal Nutrient Criteria in Arizona?

    The goal of EPA's 1976 rulemaking in Arizona was to establish water 
quality criteria to protect the designated uses of Arizona surface 
waters. EPA withdraws federally promulgated water quality standards 
after the State adopts, and EPA approves, water quality standards that 
meet the requirements of the CWA and the implementing Federal 
regulations. As discussed earlier, in 1996, after approving Arizona's 
nutrient criteria and implementation procedures, EPA determined that 
Arizona's standards met the requirements of the CWA and EPA's 
implementing regulations and Federally promulgated nutrient criteria 
were no longer necessary. As a result of today's action, Arizona's 
numeric and narrative nutrient criteria, and the corresponding 
implementation procedures for the narrative criteria are the applicable 
nutrient criteria. Not affected by this proposal are Federal water 
quality standards codified at 40 CFR 131.31(b) and (c), which among 
other things designate fish consumption as a use for certain waters, 
and require implementation of a monitoring program regarding mercury's 
effects on wildlife. These provisions remain in effect.
    Table 1 below displays the Federal numeric criteria for nutrients 
and the State's corresponding criteria. The waterbody segments listed 
in Table 1 are the waters for which the Federal numeric nutrient 
criteria being withdrawn today had applied. For convenience, the 
Federal nutrient criteria and the corresponding State nutrient criteria 
are listed for each water body. See 40 CFR 131.31(a). Because the 
Federal and State nutrient criteria are based on measurements of 
different parameters (i.e., total phosphates and total nitrates versus 
total phosphorous and total nitrogen), this table does not provide a 
direct comparison of the Federal and State nutrient criteria but rather 
describes how individual waters that are currently covered by the 
Federal criteria for nutrients will be covered by Arizona's water 
quality standards. For waterbodies or waterbody segments listed in rows 
4, 8, 9, and 11, Arizona has adopted numeric nutrient water quality 
criteria for either total nitrogen, total phosphorus, or both. In 
addition to the numeric nutrient criteria in Table 1 for the listed 
stream segments, Arizona has adopted numeric nutrient criteria for 
additional stream segments not covered by the Federal nutrient 
criteria. Between 1976 and 1996, EPA approved Arizona's numeric 
nutrient criteria because the criteria were derived using sound science 
and are protective of the designated uses of those waters. Readers 
interested in viewing Arizona's numeric nutrient criteria not listed in 
Table 1 should consult Arizona's water quality standards (R18-11-109, 
11-110, and 11-112). Arizona's water quality standards can be viewed on 
the EPA Office of Water Standards Repository Web site at http://www.epa.gov/waterscience/standards/wqslibrary/.
    For waterbodies or waterbody segments where Arizona has not adopted 
any numeric nutrient water quality criteria to replace the Federal 
numeric water quality criteria for nutrients (the waters listed in rows 
1, 2, 3, 5, 6, 7, and 10), only the State's narrative nutrient criteria 
apply. In 1996, EPA determined that the narrative nutrient criteria, in 
conjunction with Arizona's Implementation Guidelines for the Narrative 
Nutrient Standard, would provide the same intended level of protection 
as the Federal criteria by fully protecting the designated uses of 
these waters because they allow for consideration of site-specific 
water quality information. Indeed, when necessary, narrative criteria 
with the appropriate implementation procedures can be used to obtain 
quantitative measures having a greater degree of precision and site 
specificity than a single numeric target. EPA reviewed and approved 
Arizona's narrative nutrient criteria and the Implementation Guidelines 
for the Narrative Nutrient Standard as being scientifically defensible 
and consistent with the CWA and EPA's implementing regulations at 40 
CFR 131.11.

               Table 1.--Federal Nutrient Criteria in CFR 131.31(a) and Arizona Nutrient Criteria
----------------------------------------------------------------------------------------------------------------
                                        Federal criteria at 40    Arizona criteria (mg/L) (mean/90th percentile/
                                       CFR 131.31 (mg/L) (mean/                        max)
                                           90th percentile)     ------------------------------------------------
         Water body segment          ---------------------------
                                           Total        Total      Total  phosphorus         Total  nitrogen
                                        phosphates     nitrates
----------------------------------------------------------------------------------------------------------------
1. Colorado River from Utah border         0.04/0.06        4/7  nnc..................  nnc
 to Willow Beach (main stem).
2. Colorado River from Willow Beach        0.06/0.10        5/-  nnc..................  nnc
 to Parker Dam (main stem).
3. Colorado River from Parker Dam to       0.08/0.12        5/7  nnc..................  nnc
 Imperial Dam (main stem).

[[Page 62743]]

 
4. Colorado River from Imperial Dam        0.10/0.10        5/7  nnc/0.33/nnc.........  nnc/2.50/nnc
 to Morelos Dam (main stem).
5. Gila River from New Mexico border       0.50/0.80        -/-  nnc..................  NA
 to San Carlos Reservoir (excluding
 San Carlos Reservoir.
6. Gila River from San Carlos              0.30/.050        -/-  nnc..................  NA
 Reservoir to Ashurst Hayden Dam
 (including San Carlos Reservoir.
7. San Pedro River..................       0.30/0.50        -/-  nnc..................  NA
8. Verde River (except Granite             0.20/0.30        -/-  0.10/0.30/1.00.......  NA
 Creek).
9. Salt River above Roosevelt Lake..       0.20/0.30        -/-  0.12/0.30/1.00.......  NA
10. Santa Cruz River from                  0.50/0.80        -/-  nnc..................  NA
 international boundary near Nogales
 to Sahuarita.
11. Little Colorado River above            0.30/0.50        -/-  0.20/0.30/0.75.......  NA
 Lyman Reservoir.
----------------------------------------------------------------------------------------------------------------
- No Federal numeric nutrient criteria were promulgated.
nnc The State's narrative nutrient water quality criteria apply in conjunction with the State's implementation
  procedures.
NA EPA has not included the State's nutrient criteria for total nitrogen for these waters because these waters
  were not subject to the 1976 Federal numeric nutrient water quality criteria for total nitrates.

D. What Current Efforts Are Underway To Further Protect Waters From 
Excessive Nutrients?

    In the time since EPA approved Arizona's nutrient criteria, EPA has 
developed waterbody specific technical guidance manuals for deriving 
numeric nutrient criteria as well as waterbody and ecoregion specific 
criteria recommendations. For freshwaters, the guidance recommends that 
States address total nitrogen, total phosphorous, chlorophyll-a, and 
turbidity when developing nutrient criteria to protect designated uses. 
EPA has also published recommended ecoregion-specific nutrient water 
quality criteria for States to use as starting points in adopting water 
quality standards (see 66 FR 1671, January 9, 2001). This information 
may be found at http://www.epa.gov/ost/standards/nutrient.html. EPA's 
criteria documents include nutrient water quality criteria 
recommendations for rivers and streams and for lakes and reservoirs 
within Arizona. When EPA determined that Arizona's nutrient criteria 
were consistent with the CWA and protective of designated uses, EPA did 
not have numeric nutrient criteria recommendations. EPA is currently 
withdrawing the Federal nutrient criteria applicable to eleven waters 
in the State of Arizona because EPA determined that Arizona's nutrient 
criteria are as protective as the federally promulgated nutrient 
criteria for those waters. Arizona is currently working on a nutrient 
criteria plan to develop and adopt numeric nutrient criteria for all of 
its waters based on EPA's most current guidance. EPA will work with 
Arizona to revise the State's water quality standards where recent 
information shows new or revised nutrient criteria are necessary to 
better protect its designated uses.

III. Response to Comments

    EPA received comments from the Environmental Management Division of 
the International Boundary and Water Commission United States and 
Mexico, Office of the Commissioner (United States Section) and from the 
Water Quality Division, Arizona Department of Environmental Quality, 
both supporting EPA's action to withdraw Federal nutrient criteria. 
These comments have been included in the Administrative Record.
    EPA also received a comment from Pima County Wastewater Management 
Department that supports the withdrawal of the Federal numeric 
criteria, but opposes EPA's proposal to also withdraw the Federal 
narrative criteria in Arizona until that time when the State completes 
its planned narrative nutrient implementation guideline stakeholder and 
rulemaking process. EPA appreciates the commenter's support for 
withdrawing the Federal numeric criteria, but disagrees that it should 
maintain the Federal narrative criteria as requested by the commenter. 
As noted earlier, EPA approved Arizona's Implementation Guidelines in 
1996. This approval was based on EPA's determination that these 
guidelines satisfy the requirements of EPA's regulations that States 
provide information addressing the implementation of State narrative 
criteria. EPA recognizes that ADEQ is in the process of developing 
revised, eco-region specific implementation procedures for the 
narrative nutrients standard. This laudable effort, however, does not 
change the fact that Arizona presently has nutrient implementation 
procedures that meet the requirements of the Act. Therefore, EPA 
believes that there is no reason for it not to withdraw both numeric 
and narrative nutrient criteria at the present time.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    This action withdraws Federal requirements applicable to Arizona 
and imposes no regulatory requirements or costs on any person or 
entity, does not interfere with the action or planned action of another 
agency, and does not have any budgetary impacts or raise novel legal or 
policy issues. Thus, it has been determined that this rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 (58 FR 51735, October 4, 1993) and is therefore not subject to 
the Office of Management and Budget (OMB) review.

B. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 because it is 
administratively withdrawing Federal

[[Page 62744]]

requirements that no longer need to apply to Arizona.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally requires an agency to prepare a regulatory flexibility 
analysis of a rule that is 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 
significant economic impact on a substantial number of small entities. 
This rule imposes no regulatory requirements or costs on any small 
entity. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 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. Today's rule contains no Federal mandates (under 
the regulatory provisions of Title II of the UMRA) for State, Tribal, 
or local governments or the private sector because it imposes no 
enforceable duty on any of these entities. Thus, today's rule is not 
subject to the requirements of UMRA sections 202 and 205 for a written 
statement and small government agency plan. Similarly, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and is 
therefore not subject to UMRA section 203.

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 
State and local government officials have an opportunity to provide 
input in the development of regulatory policies 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 governments. This rule 
imposes no regulatory requirements or costs on any State or local 
governments; therefore, it does not have federalism implications under 
Executive Order 13132.

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

    Again, this rule imposes no regulatory requirements or costs on any 
Tribal government. It does not have substantial direct effects on 
Tribal governments, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175, entitled ``Consultation and Coordination with 
Indian Tribal Governments'' (65 FR 67249, November 6, 2000).

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

    This rule is not subject to E.O. 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant and 
EPA has no reason to believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children.

H. Executive Order 13211--Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply 
because this rule does not involve technical standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. 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) and will be effective on December 8, 2003.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians-lands, Intergovernmental 
Relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: October 30, 2003.
Marianne Lamont Horinko,
Acting Administrator.

0
For the reasons set out in the preamble, 40 CFR part 131 is amended as 
follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

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


Sec.  131.31  [Amended]

0
2. Section 131.31 is amended by removing and reserving paragraph (a).

[FR Doc. 03-27948 Filed 11-5-03; 8:45 am]
BILLING CODE 6560-50-P