[Federal Register Volume 76, Number 127 (Friday, July 1, 2011)]
[Proposed Rules]
[Pages 38592-38597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16616]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2011-0515; FRL-9428-3]


Phosphorus Water Quality Standards for Florida Everglades

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing a rule that would identify provisions of 
Florida's Water Quality Standards for Phosphorus in the Everglades 
Protection Area (Phosphorus Rule) and Florida's Amended Everglades 
Forever Act (EFA) that EPA has disapproved and that therefore are not 
applicable water quality standards for purposes of the Clean Water Act. 
EPA is proposing today's rule following EPA's disapproval of these 
provisions and EPA's specific directions to the State of Florida to 
correct these deficiencies in the Phosphorus Rule and EFA. EPA's 
disapproval, specific directions to the State, and today's proposed 
rule implement two orders by the U.S. District Court for the Southern 
District of Florida. The intended effect of today's proposed rule is to 
identify only those provisions of Florida law that EPA has disapproved 
and that therefore are not applicable water quality standards for 
purposes of the Clean Water Act.

DATES: Comments must be received on or before August 1, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2011-0515 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments. This electronic docket is EPA's 
preferred method of receiving comments.
     Mail: Water Docket, U.S. Environmental Protection Agency, 
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington, DC. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2011-
0515. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional instructions on submitting 
comments, go to section I.D of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the OW Docket Center, 
which is open from 8:30 until 4:30 pm, Monday through Friday, excluding 
legal holidays. The OW Docket Center telephone number is (202) 566-
2426, and the Docket address is OW Docket, EPA West, Room 3334, 1301 
Constitution Avenue, NW., Washington, DC 20004. The 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.

FOR FURTHER INFORMATION CONTACT: Mario Sengco, Standards and Health 
Protection Division, Office of Science and Technology, Mail Code: 
4305T, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460; telephone number: (202) 566-2676; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. What entities may be affected by this rule?

    Citizens concerned with water quality in Florida may be interested 
in this rulemaking. Entities discharging phosphorus to waters upstream 
of the Everglades Protection Area could be indirectly affected by the 
Phosphorus Rule and EFA, although not specifically by this proposed 
rulemaking because the current action further addresses prior 
disapproval by EPA of certain provisions of the Phosphorus Rule and 
EFA. Any indirect affect to entities would be because the water quality 
standards contained in the State's regulation and statute are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. With this in mind, categories and entities that may 
ultimately be indirectly affected include:

------------------------------------------------------------------------
                                      Examples of potentially affected
             Category                             entities
------------------------------------------------------------------------
Water Management Districts........  Entities responsible for managing
                                     point source discharges near the
                                     Everglades Protection Area.
Nonpoint Source Contributors......  Entities responsible for
                                     contributing nonpoint source runoff
                                     near the Everglades Protection
                                     Area.
------------------------------------------------------------------------


[[Page 38593]]

    This table is not intended to be exhaustive, but rather provides a 
guide for entities that may be affected by this action. This table 
lists the types of entities of which EPA is now aware that potentially 
could be affected by this action. Other types of entities not listed in 
the table could also be affected. Any parties or entities conducting 
activities within watersheds of the Florida waters covered by this 
rule, or who rely on, depend upon, influence, or contribute to the 
water quality of the Everglades Protection Area, might be affected by 
this rule. To determine whether your facility or activities may be 
affected by this action, you should examine this proposed rule. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. How do I get copies of this notice?

    Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2011-0515. 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 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available 
electronically through http://www.regulations.gov and in hard copy at 
the EPA Docket Center Public Reading Room, 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.

C. What comments will be considered and what should I consider as I 
prepare my comments for EPA?

    (1) The public is invited to submit comments on whether EPA's 
proposed rule is consistent with EPA's disapprovals of the Phosphorus 
Rule and EFA and the Court's orders.
    (2) The public is invited to submit comments regarding EPA's 
approach of identifying, through incorporation by reference, those 
provisions of the Phosphorus Rule and EFA that are not applicable water 
quality standards for purposes of the CWA.
    (3) Do not submit confidential business information (CBI) to EPA 
through the http://www.regulations.gov portal. Contact EPA before 
submitting CBI by contacting the person in FOR FURTHER INFORMATION 
CONTACT section.

II. Background

    EPA is proposing a rule that would identify provisions of Florida's 
Water Quality Standards for Phosphorus in the Everglades Protection 
Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act 
(EFA) that EPA has disapproved and that therefore are not applicable 
water quality standards for purposes of the Clean Water Act. EPA is 
proposing today's rule following its disapproval of these provisions 
and EPA's specific directions to the State of Florida to correct these 
deficiencies in the Phosphorus Rule and EFA. EPA's disapproval and 
specific directions to the State implement two orders by the U.S. 
District Court for the Southern District of Florida. Pursuant to the 
Court's orders, EPA gave the State a period of time to correct the 
deficiencies. The State has not corrected the deficiencies within that 
time period. Therefore, EPA is proposing today's rule. The proposed 
rule incorporates by reference two documents that identify the specific 
provisions of Florida's Phosphorus Rule and EFA that are not applicable 
water quality standards for purposes of the Clean Water Act.

A. Statutory and Regulatory Background

    Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA) 
directs States, with oversight by EPA, to adopt water quality standards 
to protect the public health and welfare, enhance the quality of water 
and serve the purposes of the CWA. Under section 303, 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 (40 CFR Part 131) provide that water quality standards 
shall include designated uses of the water and water quality criteria 
necessary to protect those uses.
    States must submit any new or revised water quality standards for 
EPA review and approval/disapproval. EPA must approve/disapprove any 
new or revised standards within 60-90 days. (Section 303(c)(3)). If EPA 
disapproves any standard, EPA is to specify the changes to meet the 
requirements of the CWA. If the changes are not adopted by the State, 
EPA is to promulgate standards to address the necessary changes in the 
State standards that EPA has disapproved. Today, EPA is proposing 
Federal standards to address the portions of Florida's standards that 
EPA disapproved and that have not been revised by the State.

B. Florida's Phosphorus Rule and Everglades Forever Act

1. Florida's Phosphorus Rule
    In 2005, the Florida Department of Environmental Protection (FDEP) 
submitted to EPA for review pursuant to CWA section 303(c), provisions 
of Florida Administrative Code (``FAC'') 62-302.540 entitled ``Water 
Quality Standards for Phosphorus Within the Everglades Protection 
Area'' (Phosphorus Rule or Rule). The Rule established a numeric water 
quality criterion for phosphorus as well as implementing provisions for 
the numeric criterion within the Everglades Protection Area. In 2005 
and 2006, EPA issued a series of decisions approving certain provisions 
of the Phosphorus Rule and concluding that other provisions were not 
new or revised water quality standards and did not require EPA 
approval/disapproval under CWA section 303(c).
2. Florida's Everglades Forever Act
    The Florida Legislature enacted the Everglades Forever Act in 1994 
to maintain and restore the ecosystem of the Everglades. See Miccosukee 
Tribe of Indians v. United States, 105 F.3d. 599, 601 (11th Cir. 1997). 
EPA subsequently reviewed and approved one section of the EFA (section 
4(f)) as a new or revised water quality standard in 1999. The 
Legislature enacted amendments to the EFA in 2003. EPA reviewed the 
amendments and issued a decision in 2003 that the amendments were not 
new or revised water quality standards requiring EPA approval/
disapproval under section 303(c) of the CWA.

C. Litigation and Subsequent EPA Actions

    In consolidated litigation, plaintiffs challenged (1) EPA's 2003 
decision that the EFA amendments were not water quality standards and 
(2) EPA's 2005 and 2006 decisions regarding the Phosphorus Rule. In a 
July 29, 2008 decision, the U.S. District Court for the Southern 
District of Florida upheld in part and remanded in part EPA's 
decisions. Miccosukee Tribe of Indians & Friends of the Everglades v. 
U.S. Environmental Protection Agency, Florida Department of 
Environmental Protection, et al., No. 04-21488-CIV-Gold/McAliley (S.D. 
Fla.). The Court upheld EPA's 2005 approval of the Phosphorus Rule's 
numeric phosphorus criterion and the ``four-part'' test for determining 
attainment of the criterion. The Court overturned (1) EPA's decision 
that certain implementing provisions of the Phosphorus Rule were not 
new or revised water quality standards and (2)

[[Page 38594]]

EPA's approval of other provisions of the Phosphorus Rule finding EPA's 
approval to be arbitrary and capricious. The Court also rejected EPA's 
determination that the legislative amendments to the EFA did not 
constitute new or revised water quality standards subject to EPA review 
(and approval or disapproval) under section 303(c) of the CWA. The 
Court remanded to EPA to take further action consistent with the 
Court's decision.
1. EPA's December 2009 Determination
    On December 3, 2009, EPA issued a new Determination in response to 
the Court's remand. Consistent with the Court's 2008 decision, EPA 
disapproved certain amendments to the EFA. It is those disapproved 
provisions of the EFA that are, in part, the subject of today's 
proposed rulemaking. In addition, EPA reviewed the provisions of the 
Phosphorus Rule that the Court either found were new or revised 
standards or that the Court had held EPA's prior approval invalid. 
Consistent with the Court's decision, EPA disapproved certain 
provisions of the Phosphorus Rule and those disapproved provisions also 
are the subject of today's proposed rulemaking.
2. Court's April 10, 2010 Order
    Plaintiffs challenged EPA's December 2009 Determination, alleging, 
in part, that EPA failed to (1) specify the changes that Florida must 
make to the Phosphorus Rule and EFA to bring them into compliance with 
the CWA and (2) commit to promulgate if the State fails to act. The 
Court, in an order dated April 10, 2010, remanded EPA's 2009 
Determination and ordered EPA to issue an Amended Determination (AD) by 
September 3, 2010. While the Court did not take issue with EPA's 
disapprovals, the Court nevertheless ordered that EPA's AD ``shall 
specifically direct the State of Florida to correct deficiencies in the 
Amended EFA and Phosphorus Rule that have been invalidated,'' attaching 
copies of the Rule and EFA with strikeout markings indicating the exact 
language from the Rule and EFA that the State must correct. Order at 
44. The Court ordered that in the AD, ``EPA shall require the State of 
Florida to commence and complete rule-making for the Phosphorus Rule 
within 120 days from the date of the Amended Determination and shall 
require amendments to the Amended EFA to be enacted by July 1, 2011.'' 
Order at 44-45. The Court further ordered that ``[i]n the event the 
State of Florida fails to timely act, the EPA shall provide timely 
notice, and the EPA Administrator ``shall promulgate such standard[s]'' 
pursuant to 33 U.S.C. 1313(c).'' Order at 45.
3. EPA's September 3, 2010 Amended Determination
    Consistent with the Court's April 14, 2010 Order, EPA gave 
directions to the State of Florida for correcting deficiencies in the 
Phosphorus Rule and Amended EFA. EPA's AD included as attachments 
copies of the Phosphorus Rule and EFA with strikeout markings 
indicating the language that the State needed to correct. EPA's AD 
stated that if FDEP has not finalized revisions by January 1, 2011 and 
the Legislature has not enacted amendments to the EFA by July 1, 2011, 
EPA would initiate rulemaking to promulgate standards consistent with 
the Court's Order.
    FDEP initiated a rulemaking to adopt the necessary revisions to the 
Phosphorus Rule consistent with EPA's AD. However, FDEP did not 
complete that process by January 1, 2011. Nor has FDEP completed its 
rulemaking process since that date. The Florida Legislature also did 
not introduce or enact any amendments to the EFA consistent with EPA's 
AD. The Florida Legislature stands adjourned and is not scheduled to 
reconvene prior to July 1, 2011. Therefore, EPA is proceeding, 
consistent with the Court's Order and EPA's AD, to initiate the 
rulemaking process to promulgate Federal standards addressing the 
deficiencies of the Phosphorus Rule and EFA.

III. EPA's Proposal and Solicitation of Public Comments

    EPA's proposed rule identifies those provisions in the Phosphorus 
Rule and Everglades Forever Act that EPA has disapproved and that 
therefore are not applicable water quality standards for purposes of 
the CWA. The provisions are the ones that EPA previously disapproved in 
December 2009 that the Court identified in its April 2010 Order and 
that EPA identified in its September 2010 AD. EPA's proposed rule 
incorporates by reference copies of the Phosphorus Rule and EFA with 
the strikeout markings indicating the provisions and language that are 
not applicable water quality standards for purposes of the CWA.
    For the convenience of persons reviewing this proposal, EPA has put 
copies of the Phosphorus Rule and Amended Everglades Forever Act in the 
docket, with the strikeout markings indicating the language that EPA 
disapproved and that EPA's proposed rule identifies as not being 
applicable water quality standards for purposes of the CWA. The 
provisions of the Phosphorus Rule and EFA that will not be applicable 
water quality standards for purposes of the CWA are summarized in 
Tables 1 and 2.
    The remaining provisions of the Phosphorus Rule and EFA in the 
docket either already have been approved by EPA as new or revised water 
quality standards (i.e., are applicable water quality standards for the 
purposes of the CWA), or are not a water quality standard subject to 
EPA review and approval (or disapproval) under the Clean Water Act. As 
explained in the Statutory and Regulatory Background (II.A) and in the 
sections below, EPA is not proposing to promulgate any of the remaining 
provisions that EPA has approved or that are not water quality 
standards.
    In the Court's 2010 order, the judge struck a provision in the EFA 
(i.e., paragraph 2(l)), which defined the term ``optimization.'' In 
today's action, EPA is not identifying the strike out paragraph 2(l) in 
the EFA or paragraph 3(f) in the Phosphorus Rule because EPA did not 
specifically disapprove either provision in its December 2009 
Determination. EPA believes that its decision not to identify these two 
definitions in today's proposed rule will not conflict with the 
objectives of the Court in its ruling because EPA disapproved the other 
provisions in the EFA and Phosphorus Rule where the term 
``optimization'' occurs and EPA has identified those disapproved 
provisions in today's proposed rule.
    For the convenience of the reader and to improve the readability of 
the documents, EPA has included a few minor text changes to the 
Phosphorus Rule and Amended Everglades Forever Act in the docket. These 
changes are identified by underline. EPA included these few text 
changes in its submission to the Court and the Court's April 2011 order 
reflects these changes. EPA added text when deletion of the disapproved 
language rendered the remaining text difficult to understand. In EFA 
section 10 for example, EPA's added text would restore language that 
existed prior to enactment of EFA amendments. In these sections, EPA is 
not proposing to establish new or revised water quality standards with 
these text changes, but merely to restore language that would make the 
remaining text easier to understand. Similarly, for ease of 
readability, the docket versions of the Phosphorus Rule and Amended 
Everglades Forever Act strike the definitions of ``optimization'' 
(which is defined only for the purposes of other provisions that EPA 
disapproved) from sections 2(l) and 3(f), respectively, as discussed 
above.

[[Page 38595]]



 Table 1--62-302.540 Provisions of Florida Administrative Code (F.A.C.)
(Water Quality Standards for Phosphorus Within the Everglades Protection
  Area) That Are Not Applicable Water Quality Standards for Purposes of
                           the Clean Water Act
------------------------------------------------------------------------
              Section                  Specific provision or language
------------------------------------------------------------------------
(1)(a)............................  Entire paragraph.
(1)(b)(2).........................  Entire paragraph.
(2)(b)-(f)........................  Entire paragraphs and subparagraphs.
(2)(h)............................  Entire paragraph.
(2)(l)............................  Entire paragraph.
(3)(a)-(b)........................  Entire paragraphs.
(3)(h)............................  Entire paragraph.
(4)(d)(2)(c)......................  Sentence only, ``If these limits are
                                     not met, no action shall be
                                     required, provided that the net
                                     improvement or hydropattern
                                     restoration provisions of
                                     subsection (6) below are met.''
(5)(a)............................  Entire paragraph.
(5)(b)(2)-(3).....................  Entire paragraphs.
(5)(d)............................  Entire paragraph.
(6)(a)-(c)........................  Entire paragraphs and subparagraphs.
------------------------------------------------------------------------


   Table 2--Provisions of the Amended Everglades Forever Act (Florida
  Statute 373.4592) That Are Not Applicable Water Quality Standards for
                     Purposes of the Clean Water Act
------------------------------------------------------------------------
              Section                  Specific provision or language
------------------------------------------------------------------------
(2)(a)............................  Entire paragraph.
(2)(g)............................  Sentence 1, phrase ``are further
                                     described in the Long-Term Plan''.
(2)(j)............................  Entire paragraph.
(2)(p)............................  Entire paragraph.
(3)(b)-(e)........................  Entire paragraphs.
(4)(a)............................  Sentence 9, phrase ``design,
                                     construction, and implementation of
                                     the initial phase of the Long-Term
                                     Plan, including operation and
                                     maintenance, and research for the
                                     projects and strategies in the
                                     initial phase of the Long-Term
                                     Plan, and including''
(4)(a)(4).........................  Sentence 1, phrase ``however, the
                                     district may modify this schedule
                                     to incorporate and accelerate
                                     enhancements to STA \3/4\ as
                                     directed in the Long-Term Plan''.
(4)(a)(6).........................  Entire subparagraph.
(4)(e)(2).........................  Sentences 7, 8 and 9.
(4)(e)(3).........................  Sentence 3.
(10)..............................  Sentence 1, phrase ``to implement
                                     the pre-2006 projects and
                                     strategies of the Long-Term Plan.''
                                    Sentence 1, phrase ``in all parts of
                                     the Everglades Protection Area''.
                                    Sentence 1, phrase ``and moderating
                                     provisions''.
(10)(a)...........................  Entire paragraph.
------------------------------------------------------------------------

    EPA believes that its proposal to incorporate by reference 
documents that identify those specific provisions of the Phosphorus 
Rule and EFA that are not applicable water quality standards for 
purposes of the CWA best accomplishes the purpose of removing those 
provisions from consideration for future implementation within CWA 
programs.
    EPA considered other approaches to accomplish this result and 
decided the approach the Agency is proposing today is the most 
appropriate approach. Because the Phosphorus Rule and EFA are Florida 
laws, EPA could not ``amend'' those state laws. EPA considered whether 
it should incorporate the complete Phosphorus Rule and EFA as Federal 
regulations and amend them accordingly. EPA concluded this approach 
would not be appropriate for two reasons.
    First, to the extent EPA would be promulgating as Federal 
regulations provisions of state water quality standards that EPA has 
approved (or provisions associated with approved water quality 
standards but that are not themselves water quality standards), the CWA 
does not provide for such action. The CWA provides that when EPA 
approves a new or revised state water quality standard, ``such standard 
shall thereafter be the water quality standard for the applicable 
waters of the State.'' CWA section 303(c)(3). Only if EPA disapproves a 
state water quality standard or makes a determination that a new or 
revised water quality standard is necessary to meet the requirements of 
the Clean Water Act under section 303(c)(4)(B) and the state fails to 
make the necessary changes, does the Act direct EPA to promulgate such 
water quality standards for navigable waters of the state. There are 
many provisions of the Phosphorus Rule that EPA approved. EPA did not 
believe it would be appropriate to promulgate those provisions as 
Federal regulations.
    Second, except for the disapproved provisions of the EFA 
amendments, EPA has not approved or disapproved the remaining 
provisions of the EFA (with one exception) as new or revised water 
quality standards under the Clean Water Act. Therefore, it would not be 
appropriate for EPA to promulgate such provisions as Federal water 
quality standards.
    For these reasons, EPA concluded the best approach was to identify, 
through incorporation by reference, those provisions of the Phosphorus 
Rule and EFA that EPA disapproved and are therefore not applicable 
water quality standards for purposes of the CWA. EPA solicits comments 
on this approach.

[[Page 38596]]

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action 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 review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    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 is defined at 5 CFR 1320.3(b). This proposed action merely 
clarifies the water quality standards concerning the phosphorus rule 
and the Amended EFA statute that are not water quality standards for 
purposes of the CWA and does not impose any information collection 
burden on anyone.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 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 this action on small entities, small entity is 
defined as: (1) A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201; (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.
    As a result of the disapproval action by EPA in December 2009, the 
Florida Department of Environmental Protection already needs to ensure 
that permits it issues do not implement the provisions identified in 
this rule which are not applicable water quality standards for purposes 
of the CWA. In doing so, the State will have a number of choices 
associated with permit writing. While Florida's implementation of the 
rule might ultimately result in some new or revised permit conditions 
for some dischargers, including small entities, EPA's action today 
would not impose any of these as yet unknown requirements on small 
entities. Thus, I certify that this proposed rule will not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. This proposed action merely clarifies the water quality 
standards concerning the phosphorus rule and the Amended EFA and does 
not impose any burden on anyone. Therefore, this action is not subject 
to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132 (Federalism)

    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. This proposed action merely 
clarifies the water quality standards concerning the phosphorus rule 
and the Amended EFA and does not apply to any government other than the 
State of Florida.

F. Executive Order 13175

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000) because this is 
an action in which the EPA has no discretion, i.e., EPA is mandated by 
the Court to take this action. Thus, Executive Order 13175 does not 
apply to this action.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 12866 
and because the Agency does not believe the environmental health risks 
or safety risks addressed by this action present a disproportionate 
risk to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (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.

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, 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. 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 involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes Federal executive policy on environmental justice. Its main 
provision directs Federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States. This 
action is not subject to E.O. 12898 because this proposed action merely 
clarifies the water quality standards concerning the phosphorus rule 
and the Amended EFA.

List of Subjects in 40 CFR Part 131

    Environmental protection, Incorporation by reference, Indians--
lands, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water pollution control.


[[Page 38597]]


    Dated: June 27, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 131 as follows:

PART 131--WATER QUALITY STANDARDS

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

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

Subpart D--[Amended]

    2. Section 131.44 is added to read as follows:


Sec.  131.44  Florida.

    (a) Phosphorus Rule. The document entitled ``Corrected Florida 
Administrative Code 62-302.540: Water Quality Standards for Phosphorus 
Within the Everglades Protection Area,'' (Phosphorus Rule) dated April 
26, 2011 shall be added to this Subpart through an incorporation by 
reference. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a). Copies 
of the document may be inspected and obtained from the docket 
associated with this rulemaking (Docket Number EPA-HQ-OW-2011-0515), at 
EPA's Water Docket (Address: 1301 Constitution Avenue, NW., EPA West, 
Room B102, Washington, DC 20460, telephone number: 202-566-2426), or at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to the following Web site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts 
and identifies the portions of the document that have strikeout 
markings as portions of the Phosphorus Rule that EPA disapproved on 
December 3, 2009, and that are not applicable water quality standards 
for the purposes of the Clean Water Act. Remaining portions of the 
Phosphorus Rule that EPA had previously approved are applicable water 
quality standards for the purposes of the Clean Water Act but are not 
codified as Federal water quality standards.
    (b) Amended Everglades Forever Act. The document entitled 
``Corrected Everglades Forever Act: Florida Statute 373.4592,'' dated 
April 26, 2011 shall be added to this Subpart through an incorporation 
by reference. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a). Copies 
of the document may be inspected and obtained from the docket 
associated with this rulemaking (Docket Number EPA-HQ-OW-2011-0515), at 
EPA's Water Docket (Address: 1301 Constitution Avenue, NW., EPA West, 
Room B102, Washington, DC 20460, telephone number: 202-566-2426 or at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to the following Web site: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. 
EPA adopts and identifies the portions of the document that have 
strikeout markings as portions of the statute that EPA disapproved on 
December 3, 2009, and that are not applicable water quality standards 
for the purposes of the Clean Water Act. Remaining portions of the 
statute that EPA had previously approved are applicable water quality 
standards for the purposes of the Clean Water Act but are not codified 
as Federal water quality standards.

[FR Doc. 2011-16616 Filed 6-30-11; 8:45 am]
BILLING CODE 6560-50-P