[Federal Register Volume 77, Number 96 (Thursday, May 17, 2012)]
[Proposed Rules]
[Pages 29271-29275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11843]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9670-7]
RIN 2040-AF41


Effective Date for the Water Quality Standards for the State of 
Florida's Lakes and Flowing Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
extend the July 6, 2012, effective date of the ``Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters;

[[Page 29272]]

Final Rule'' (inland waters rule) for three months to October 6, 2012. 
EPA also is soliciting comment on extending the July 6, 2012, effective 
date by one year to July 6, 2013. EPA's inland waters rule as 
promulgated on December 6, 2010, included an effective date of March 6, 
2012, for the entire regulation except for the site-specific 
alternative criteria provision, which took effect on February 4, 2011. 
This proposal to extend the July 6, 2012, effective date for the inland 
waters rule does not affect or change the February 4, 2011, effective 
date for the site-specific alternative criteria provision. On March 5, 
2012, EPA extended the March 6, 2012, effective date to July 6, 2012. 
In this proposal, EPA is requesting comment on extending the effective 
date for the ``Water Quality Standards for the State of Florida's Lakes 
and Flowing Waters; Final Rule'' from July 6, 2012 to October 6, 2012, 
or in the alternative from July 6, 2012 to July 6, 2013.

DATES: Comments must be received on or before June 18, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Mail to: Water Docket, U.S. Environmental Protection Agency, 
Mail code: 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
    4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No. 
EPA-HQ-OW-2009-0596. 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-2009-
0596. 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 email. 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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 information about EPA's public 
docket, visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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.regulations.gov to view public comments, 
access the index listing of the contents of the official public docket, 
and access those documents in the public docket that are available 
electronically. For additional information about EPA's public docket, 
visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although listed in the index, some information is not 
publicly available, i.e., Confidential Business Information (CBI) or 
other information with disclosure restricted by statute. Certain other 
material, such as copyright material, is not placed on the Internet and 
will be publicly available only in hard copy form. Publicly available 
docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Docket Facility. The Office 
of Water (OW) Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The OW Docket Center 
telephone number is 202-566-1744, and the Docket address is OW Docket, 
EPA West, Room 3334, 1301 Constitution Ave. 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: For information concerning this 
rulemaking, contact: Tracy Bone, U.S. EPA, Office of Water, Mailcode 
4305T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone 
number 202-564-5257; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

Does this action apply to me?

    Citizens concerned with water quality in Florida may be interested 
in this rulemaking. Entities discharging nitrogen or phosphorus to 
lakes and flowing waters of Florida could be indirectly affected by 
this rulemaking because water quality standards (WQS) are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. Categories and entities that may ultimately be affected 
include:

------------------------------------------------------------------------
           Category            Examples of potentially affected entities
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Industry.....................  Industries discharging pollutants to
                                lakes and flowing waters in the State of
                                Florida.
Municipalities...............  Publicly-owned treatment works
                                discharging pollutants to lakes and
                                flowing waters in the State of Florida.
Stormwater Management          Entities responsible for managing
 Districts.                     stormwater runoff in Florida.
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    This table is not intended to be exhaustive, but rather provides a 
guide for entities that may be directly or indirectly affected by this 
action. This table lists the types of entities which EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table, such as nonpoint source contributors to 
nitrogen/phosphorus pollution in Florida's waters may be affected 
through implementation of Florida's water quality standards program 
(i.e., through Basin Management Action Plans (BMAPs)). Any parties or 
entities conducting activities within watersheds of the Florida waters 
covered by this rule, or who rely on, depend upon,

[[Page 29273]]

influence, or contribute to the water quality of the lakes and flowing 
waters of Florida, may be affected by this rule. To determine whether 
your facility or activities may be affected by this action, you should 
carefully examine the language in 40 CFR 131.43, which is the final 
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.

II. Background

    On December 6, 2010, EPA's final inland waters rule, entitled 
``Water Quality Standards for the State of Florida's Lakes and Flowing 
Waters; Final Rule,'' was published in the Federal Register at 75 FR 
75762, and codified at 40 CFR 131.43. The final inland waters rule 
established numeric nutrient criteria in the form of total nitrogen, 
total phosphorus, nitrate+nitrite, and chlorophyll a for the different 
types of Florida's inland waters to assure attainment of the State's 
applicable water quality designated uses. More specifically, the 
numeric nutrient criteria translate Florida's narrative nutrient 
provision at Subsection 62-302-530(47)(b), Florida Administrative Code 
(F.A.C.), into numeric values that apply to lakes and springs 
throughout Florida and flowing waters outside of the South Florida 
Region. (EPA has distinguished the South Florida Region as those areas 
south of Lake Okeechobee and the Caloosahatchee River watershed to the 
west of Lake Okeechobee and the St. Lucie watershed to the east of Lake 
Okeechobee.) The December 2010 final action seeks to improve water 
quality, protect public health and aquatic life, and achieve the long-
term recreational uses of Florida's waters, which are a critical part 
of the State's economy.
    As stated in 75 FR 75807 (December 6, 2010), the rule was scheduled 
to take effect on March 6, 2012, except for the site-specific 
alternative criteria (SSAC) provision at 40 CFR 131.43(e), which took 
effect on February 4, 2011. EPA selected the March 6, 2012, effective 
date for the criteria part of the rule to allow time for EPA to work 
with stakeholders and the Florida Department of Environmental 
Protection (FDEP) on important implementation issues; to help the 
public and all affected parties better understand the final criteria 
and the basis for those criteria; and for EPA to engage and support, in 
full partnership with FDEP, the general public, stakeholders, local 
governments, and sectors of the regulated community across the State in 
a process of public outreach education, discussion, and constructive 
planning, (75 FR 75787, December 6, 2010).
    On December 22, 2011 (76 FR 79604), EPA proposed to extend the 
March 6, 2012, effective date of the inland waters rule to June 4, 
2012. EPA received six comments on its proposal. EPA considered the 
public comments and the continued progress by the FDEP toward adoption 
of nutrient water quality standards. EPA decided that a four month 
extension was warranted (77 FR 13497), and thus extended the effective 
date of the inland waters rule to July 6, 2012.

III. Proposed Extension of July 6, 2012 Effective Date

A. Current Inland Waters Rule Effective Date and Rationale

    The current effective date for the inland waters rule is July 6, 
2012 except, as noted earlier, for the site-specific alternative 
criteria (SSAC) provision, which became effective February 4, 2011.
    As discussed at length in the December 22, 2011, proposal to extend 
the effective date of the inland waters rule (76 FR 79604), EPA at both 
the Headquarters and Regional levels has worked in collaboration with 
the State on outreach and education efforts. In the same proposal, EPA 
also discussed that a further extension of the effective date of the 
inland waters rule might be needed to allow FDEP to submit the recently 
established State numeric nutrient rules to EPA for review and action 
under section 303(c) of the CWA, for EPA to complete its review of the 
State rules, and for EPA to withdraw any Federal numeric nutrient 
criteria corresponding to any State-adopted numeric nutrient criteria 
that have been approved by EPA.

B. Rationale for Extending the July 6, 2012 Effective Date

    EPA is proposing to extend the effective date of the inland waters 
rule (with the exception of the SSAC provision, which is already in 
effect) for three months to October 6, 2012 for the reasons discussed 
in this section. EPA also requests comment on the possibility of 
extending the July 6, 2012 effective date for one year to July 6, 2013 
or further.
    Since the promulgation of the December 6, 2010 final rule for 
Florida's inland waters, EPA has continued to work in close 
coordination with the State of Florida as the State develops its own 
rulemaking for numeric nutrient criteria (NNC rules) that are 
consistent with requirements of the Clean Water Act (CWA), address the 
water quality needs of the State, and support effective permit 
implementation, water body assessment and listing, and development of 
TMDLs. The State legislature has exempted the state NNC rules from 
legislative ratification and directed the FDEP to submit the rules to 
the EPA for review. On February 20, 2012, the FDEP sent the rules to 
EPA, which sets numeric nutrient criteria for lakes, spring vents, 
streams, and certain estuaries in Florida. The FDEP also submitted 
material supporting those criteria. EPA looks forward to receiving 
notification from the State of Florida that the rules have been 
officially adopted as revisions to the State's water quality standards.
    A petition was filed with the Florida Department of Administrative 
Hearings challenging the validity of FDEP's NNC rules. A hearing was 
held the week of February 27, 2012, and the Administrative Law Judge 
has not yet issued an order in the case. EPA anticipates that the judge 
will issue a ruling in May. At the time of this proposal, the outcome 
of the administrative challenge is uncertain. The three month extension 
of the effective date of the inland waters rule would allow time for 
the administrative challenge to be resolved, and, if FDEP prevails, for 
FDEP to notify EPA that the NNC rules have been officially adopted as 
revisions to the State's water quality standards. If EPA were to 
approve Florida's rules, EPA would then consider proposing and 
finalizing an additional extension to allow time for EPA to withdraw 
any Federal numeric nutrient criteria that correspond to criteria that 
have been adopted by Florida and approved by EPA.
    Final State numeric nutrient criteria could have significant 
implications for many interested parties and members of the public in 
the State. In the event that alternative Florida numeric nutrient 
criteria are established that assure attainment of State designated 
uses consistent with applicable CWA provisions, there could be 
uncertainty regarding implementation of EPA's inland water numeric 
criteria. Successful State action on this issue could also affect the 
obligations and expectations of a wide range of affected stakeholders 
whose actions relate to the discharge or contribution of nitrogen and 
phosphorus pollution to State waters. Extending the effective date of 
EPA's inland waters rule from July 6, 2012, to October 6, 2012, would 
avoid the confusion and inefficiency that could occur should Federal 
criteria become effective while EPA reviews State criteria for approval 
or disapproval under CWA section 303(c). Further,

[[Page 29274]]

extending the effective date to July 6, 2013, would avoid the confusion 
and inefficiency that could occur should Federal criteria take effect 
after State criteria have been approved and while EPA is in the process 
of withdrawing Federal criteria for corresponding waters.
    Should EPA decide to extend the effective date of the inland waters 
rule, the Agency will continue to work with Florida towards 
implementation of either Federal or State numeric nutrient criteria. As 
EPA stated in the preamble to the final inland waters rule, the 
opportunity presented by numeric nutrient criteria--for substantial 
nitrogen and phosphorus loadings reductions in the State--``would be 
greatly facilitated and expedited by strongly coordinated and well-
informed stakeholder engagement, planning, and support before a rule of 
this significance and broad scope begins to take effect and be 
implemented through the State's regulatory programs'' (75 FR 75787, 
December 6, 2010).
    EPA solicits comments regarding the proposed extension of three 
months to October 6, 2012, for the effective date of the inland waters 
rule, as well as a proposed extension of one year to July 6, 2013, for 
the same.

IV. 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), since it 
merely extends the effective date of an already promulgated rule, and 
is, therefore, not subject to review under Executive Order 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 action does not impose any 
information collection burden, reporting or record keeping requirements 
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.
    This proposed rule does not establish any requirements that are 
applicable to small entities, but rather merely extends the date of 
already promulgated requirements. Thus, I certify that this 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. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. This action merely extends 
the effective date of an already promulgated regulation. Therefore, 
this action is not subject to the requirements of sections 202 or 205 
of the UMRA.

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 action merely extends the 
effective date of an already promulgated regulation.

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). In the State of 
Florida, there are two Indian Tribes, the Seminole Tribe of Florida and 
the Miccosukee Tribe of Indians of Florida, with lakes and flowing 
waters. Both Tribes have been approved for treatment in the same manner 
as a State (TAS) status for CWA sections 303 and 401 and have 
federally-approved WQS in their respective jurisdictions. These Tribes 
are not subject to this proposed rule. This rule will not impact the 
Tribes because it merely extends the date of already promulgated 
requirements. Thus, Executive Order 13175 does not apply to this 
action.
    EPA specifically solicits additional comment on this proposed 
action from tribal officials.

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 this action includes 
environmental health risks or safety risks that would present a 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 No. 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 rulemaking does not involve technical standards. Therefore, 
EPA did not consider 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 agencies, to the greatest extent practicable and 
permitted by law, to

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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 proposed action is not subject to E.O. 12898 
because this action merely extends the effective date for already 
promulgated requirements.

List of Subjects in 40 CFR Part 131

    Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.

    Dated: May 5, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-11843 Filed 5-16-12; 8:45 am]
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