[Federal Register Volume 72, Number 49 (Wednesday, March 14, 2007)]
[Notices]
[Pages 11874-11875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4643]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8287-5]


Notice of Approval of Revisions to Delaware's National Pollutant 
Discharge Elimination System (NPDES) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of approval.

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SUMMARY: Notice is hereby given of approval of the submittal by the 
State of Delaware of its new and revised NPDES regulations to maintain 
consistency with the requirements of the Clean Water Act and its 
implementing regulations at 40 CFR 122, 123 and 124, as amended.

DATES: EPA's approval is effective on March 14, 2007.

FOR FURTHER INFORMATION CONTACT: Evelyn MacKnight, U.S. EPA, Region 3, 
1650 Arch Street, Philadelphia, PA 19103, or telephone her at (215) 
814-5717. Copies of materials considered by EPA in its decision are 
available for review by appointment at U.S. EPA, Region 3, 1650 Arch 
Street, Philadelphia, PA 19103. Appointments may be made by calling Ms. 
MacKnight.

SUPPLEMENTARY INFORMATION: Section 402 of the Federal Clean Water Act 
(CWA) created the NPDES program under which the Administrator of EPA 
may issue permits for the discharge of pollutants into waters of the 
United States when consistent with the CWA. Section 402(b) allows 
States to assume NPDES program responsibilities upon approval by EPA. 
On April 1, 1974, Delaware was authorized by EPA to administer the 
NPDES program; the State also received the authority to administer the 
General Permits program on October 23, 1992.
    EPA has established a regulation at 40 CFR Part 123 that 
establishes the requirements for NPDES State Programs. Section 123.62 
establishes procedures for the revision of authorized NPDES State 
Programs. Pursuant to Sec.  123.62(a), a State may initiate a program 
revision and must keep EPA informed of any proposed modifications to 
its regulatory authority. On July 28, 2003, the State of Delaware 
submitted to EPA for review and approval revisions to the regulations 
implementing the State's NPDES program. The State made significant 
revisions to sections 1 through 8 and sections 10 through 14 of its 
Department of Natural Resources and Environmental Control's (DNREC) 
March 15, 1974 Regulations Governing the Control of Water Pollution, 
which EPA has determined constituted a substantial revision to 
Delaware's authorized NPDES program. EPA determined that the State's 
submittal was complete on November 19, 2003, with the submittal of a 
statement from the State's Attorney General's office which certified 
that the regulations were duly adopted pursuant to State law. EPA 
solicited public comments as to whether it should approve or disapprove 
the revisions on February 10, 2004 (69 FR 6289) pursuant to

[[Page 11875]]

Federal regulations at 40 CFR 123.62(b)(2) . EPA received no comments 
in response to the public notice.
    As part of EPA's obligation under the Endangered Species Act, EPA 
prepared a biological evaluation to determine if approval of the 
revised Regulations Governing the Control of Water Pollution will 
adversely affect threatened and endangered species and their critical 
habitat in Delaware. The biological evaluation found that EPA's 
approval would not adversely affect threatened or endangered species. 
EPA shared this evaluation with the U.S. Fish and Wildlife Service and 
the National Marine Fisheries Services and they concurred with EPA's 
finding on October 9, 2003 and November 7, 2003, respectively.

Regulatory Flexibility Act Based on General Counsel Opinion 78-7 (April 
18, 1978)

    EPA has long considered a determination to approve or deny a State 
NPDES program submittal to constitute an adjudication because an 
``approval,'' within the meaning of the APA, constitutes a ``license,'' 
which, in turn, is the product of an ``adjudication.'' For this reason, 
the statutes and Executive Orders that apply to rulemaking action are 
not applicable here. Among these are provisions of the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a 
Federal agency proposes or promulgates a rule under Section 553 of the 
Administrative Procedure Act (APA), after being required by that 
section or any other law to publish a general notice of proposed 
rulemaking, the Agency must prepare a regulatory flexibility analysis 
for the rule, unless the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
If the Agency does not certify the rule, the regulatory flexibility 
analysis must describe and assess the impact of a rule on small 
entities affected by the rule. Even if this approval of revisions to 
Delaware's NPDES program were a rule subject to the RFA, the Agency 
would certify that approval of the State's revised NPDES program would 
not have a significant economic impact on a substantial number of small 
entities. EPA's action to approve an NPDES program merely recognizes 
that the necessary elements of an NPDES program have already been 
enacted as a matter of State law; it would, therefore, impose no 
additional obligations upon those subject to the State's program. 
Accordingly, the Regional Administrator would certify that this 
approval, even if a rule, would not have a significant economic impact 
on a substantial number of small entities.
    Notice of Decision: I hereby provide public notice of the Agency's 
approval, pursuant to 40 CFR 123.62, of the State of Delaware's 
revisions to its Regulations Governing the Control of Water Pollution, 
as consistent with the requirements of the Clean Water Act NPDES 
Program.

    Dated: February 15, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region 3.
 [FR Doc. E7-4643 Filed 3-13-07; 8:45 am]
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