[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 39949-39952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16421]



[[Page 39949]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9691-3]
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: Final rule; delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing an 
extension of the July 6, 2012, effective date of the ``Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters; Final 
Rule'' (inland waters rule) for six months to January 6, 2013. EPA's 
inland waters rule currently includes an effective date of July 6, 
2012, for the entire regulation except for the site-specific 
alternative criteria provision, which took effect on February 4, 2011. 
This extension of the July 6, 2012, effective date for the inland 
waters rule to January 6, 2013, does not affect or change the February 
4, 2011, effective date for the site-specific alternative criteria 
provision.

DATES: The revision to Sec.  131.43 in this final rule is effective 
January 6, 2013. The effective date of Sec.  131.43, revised on 
December 6, 2010 (75 FR 75805), and delayed on March 7, 2012 (77 FR 
13949) to July 6, 2012, is further delayed until January 6, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-OW-2009-0596. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
of which disclosure is restricted by statute. Certain other material, 
such as copyrighted 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 through 
www.regulations.gov or in hard copy at the EPA Docket Center, EPA West 
Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, 
Attention: Docket ID No. EPA-HQ-OW-2009-0596. 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. 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:

------------------------------------------------------------------------
                                      Examples of potentially affected
             Category                             entities
------------------------------------------------------------------------
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 Districts...  Entities responsible for managing
                                     stormwater runoff in Florida.
------------------------------------------------------------------------

    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 of which EPA is now 
aware that potentially could 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 indirectly 
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, 
influence, or contribute to the water quality of the lakes and flowing 
waters of Florida, may be indirectly 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 translated 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.) This final inland waters rule 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.

III. Revised Effective Date

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

    As stated in the rule itself (75 FR 75762, December 6, 2010), the 
inland waters rule was originally 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. 
On March 7, 2012, EPA published an extension of the effective date of 
the rule for four months to July 6, 2012 (77 FR 13497). On May 17, 2012 
(77 FR 29271) EPA proposed a shorter-term extension of the July 6, 
2012, effective

[[Page 39950]]

date in order to avoid the confusion and inefficiency that could occur 
should Federal criteria become effective while EPA reviews State 
standards for approval or disapproval under CWA section 303(c). On June 
7, 2012, the State of Florida Division of Administrative Hearings ruled 
in favor of the State's rule, enabling the State to officially submit 
its package to EPA on June 13, 2012.
    Extending the July 6, 2012, effective date of EPA's inland waters 
rule to January 6, 2013, would avoid the confusion and inefficiency 
that may occur should Federal criteria become effective while EPA is 
reviewing Florida's rule. This six-month extension will provide EPA 
time to review and approve or disapprove Florida's rule under CWA 
section 303(c). If EPA approves Florida's rule, this six-month 
extension will also allow EPA to request permission from the Court to 
finalize a further extension of the January 6, 2013, effective date for 
a period of time for EPA to withdraw the Federal criteria corresponding 
to those State criteria approved by EPA. Finally, if the Court grants 
EPA permission to finalize a further extension of the January 6, 2013, 
effective date, this six-month extension will allow EPA to actually 
finalize such further extension of the January 6, 2013, effective date 
to allow EPA to withdraw Federal criteria corresponding to those State 
standards approved by EPA. If EPA does not approve Florida's standards, 
EPA expects that its inland waters rule would become effective January 
6, 2013.
    Note that regarding two portions of EPA's original inland waters 
rule--streams and default downstream protection values (DPVs) for 
unimpaired lakes--the U.S. District Court for the Northern District of 
Florida invalidated and remanded those two portions of the inland 
waters rule to EPA on February 18, 2012 (FWF v. Jackson, 4:08-cv-00324-
RH-WCS). EPA is preparing to propose in a separate rulemaking process 
numeric nutrient criteria for such streams and default DPVs.

B. Public Comment

    EPA received twelve comments on the proposed extension of the July 
6, 2012, effective date. One commenter noted that any extension of the 
inland waters rule effective date does not prevent Florida from 
developing protective numeric nutrient standards. This commenter 
provided information showing that Florida continues to experience 
nitrogen and phosphorus-fueled algae blooms. This commenter asserted 
that the sooner numeric criteria are put in place, the sooner Florida 
waters will be on the path to being fishable, swimmable, and drinkable. 
EPA agrees with the commenter that control of excess nitrogen and 
phosphorus is important, however, EPA is finalizing this six-month 
extension of the effective date to allow EPA time to review the 
submitted State standards (discussed earlier) for approval or 
disapproval under CWA section 303(c). As mentioned earlier, having 
EPA's criteria take effect while EPA is reviewing the State standards 
could cause confusion and administrative inefficiency for the State and 
regulated entities, something the EPA wants to avoid. The commenter 
also argued against granting the longer extension of one year that was 
discussed in the proposed rule. EPA agrees with the commenter and has 
finalized a six-month extension. The commenter also provided input on 
the submitted Florida numeric nutrient standards. Those comments are 
outside the scope of this rule.
    The other eleven commenters supported the proposal to extend the 
effective date, arguing that the additional time would avoid the 
confusion and inefficiency that may occur should Federal criteria 
become effective prior to allowing full consideration of the Florida 
Department of Environmental Protection's (FDEP's) nutrient standards 
and withdrawal of Federal numeric nutrient criteria rulemakings in 
Florida. The commenters supported extension of the effective date by 
one year as discussed in the proposal rather than the proposed three-
month extension. Some of these commenters also proposed that EPA extend 
the effective date beyond one year in case more time is needed to 
withdraw its Federal nutrient criteria.
    EPA agrees that a longer extension than three months is warranted, 
but that six months is appropriate in order to provide sufficient time 
to allow EPA to take the actions described earlier. Therefore, based on 
public comment as well as the June 13, 2012, submission by Florida of 
its nutrient standards, EPA believes that a six-month extension is 
warranted.
    EPA received several comments urging actions related to an EPA 
rulemaking under development (i.e., not the inland waters rule). These 
comments are outside the scope of this action and therefore EPA is not 
addressing them.

C. Good Cause Exemption

    Section 553(d)(3) of the Administrative Procedure Act, 5 U.S.C. 
553(d)(3), provides that ``[t]he required publication or service of a 
substantive rule shall be made not less than 30 days before its 
effective date, except * * * (3) as otherwise provided by the agency 
for good cause found and published with the rule.'' Today's final rule 
is a rule that relieves a restriction, i.e., that delays the effective 
date of a Federal rule. Today's rule does not establish any 
requirements but rather merely extends the effective date of already-
promulgated requirements. On this basis, EPA has determined that there 
is ``good cause'' for having this rule take effect upon publication in 
the Federal Register. EPA thus finds that this constitutes ``good 
cause'' under 5 U.S.C. 553(d)(3).

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-

[[Page 39951]]

profit enterprise which is independently owned and operated and is not 
dominant in its field.
    This final 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 final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
This final rule merely extends the effective date of an already 
promulgated regulation.
    This final rule 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. This final rule 
does not establish any requirements that are applicable to small 
entities, but rather merely extends the date of already promulgated 
requirements.

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 (Consultation and Coordination With Indian 
Tribal Governments)

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has Tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by Tribal governments, or 
EPA consults with Tribal officials early in the process of developing 
the proposed regulation and develops a Tribal summary impact statement. 
However, the rule will neither impose substantial direct compliance 
costs on Tribal governments, nor preempt Tribal law.
    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 final rule. This rule will not 
impact the Tribes because it merely extends the date of already 
promulgated requirements.

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

    This action is not subject to E.O. 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in E.O. 
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 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 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 action merely extends the effective date for already 
promulgated requirements.

K. 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. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date of July 6, 2012. 
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. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

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

    Dated: June 28, 2012.
Lisa P. Jackson,
Administrator.

    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.

Subpart D--[Amended]

0
2. Section 131.43 is amended by revising paragraph (f) to read as 
follows:

[[Page 39952]]

Sec.  131.43  Florida.

* * * * *
    (f) Effective date. This section is effective on January 6, 2013, 
except for Sec.  131.43(e), which is effective February 4, 2011.

[FR Doc. 2012-16421 Filed 7-5-12; 8:45 am]
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