[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Proposed Rules]
[Pages 74449-74452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29800]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9759-1]
RIN 2040-AF41


Water Quality Standards for the State of Florida's Lakes and 
Flowing Waters; Proposed Rule; Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; proposed stay.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to 
temporarily stay our regulation the ``Water Quality Standards for the 
State of Florida's Lakes and Flowing Waters; Final Rule'' (inland 
waters rule) to November 15, 2013. EPA's inland waters rule currently 
includes an effective date of January 6, 2013, for the entire 
regulation except for the site-specific alternative criteria provision, 
which took effect on February 4, 2011. This proposed stay of its 
regulations is until November 15, 2013, does not affect or change the 
February 4, 2011, effective date for the site-specific alternative 
criteria provision.

DATES: Comments must be received on or before December 28, 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: 28221T, 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

[[Page 74450]]

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 to 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 whose disclosure is 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:

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                                             Examples of potentially
                Category                        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 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 affected by this action. Other types of 
entities not listed in the table, such as nonpoint source contributors 
to nitrogen and 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 
75761, 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.) The 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.
    Two portions of EPA's original inland waters rule--numeric nutrient 
criteria for Florida's streams and default downstream protection values 
(DPVs) for unimpaired lakes--were remanded to EPA on February 18, 2012 
by the U.S. District Court for the Northern District of Florida (FWF v. 
Jackson, 4:08-cv-00324-RH-WCS). Per the terms of a Consent Decree, EPA 
is required to sign proposed criteria for these remanded portions by 
November 30, 2012 and to

[[Page 74451]]

sign a notice of final rulemaking for such portions by August 31, 2013.

III. Stay of 40 CFR 11.43 (a)-(d)

A. Rationale for Staying 40 CFR 131.43 (a)-(d) until November 15, 2013

    As stated in the rule itself (75 FR 75761, 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. 
However, after securing approval from the district court judge 
presiding over the Consent Decree, EPA published an extension of the 
March 6, 2012 effective date of the rule for four months to July 6, 
2012 (77 FR 13497) to provide time for the Florida Department of 
Environmental Protection (FDEP) to adopt and submit its final nutrient 
rules to EPA for review and approval or disapproval under CWA section 
303(c). FDEP officially submitted its final nutrient rules to EPA on 
June 13, 2012. On July 6, 2012 (77 FR 39949), after securing approval 
from the district court judge presiding over the Consent Decree, EPA 
published a six-month extension of the July 6, 2012 effective date of 
the rule to January 6, 2013 in order to avoid the confusion and 
inefficiency that could occur should Federal criteria become effective 
while EPA reviewed the recently adopted and submitted State nutrient 
rules for approval or disapproval under CWA section 303(c).
    FDEP's rules include numeric criteria for all freshwater lakes, all 
springs, some inland flowing waters, and certain estuaries, as well as 
narrative provisions addressing protection of downstream waters. EPA 
reviewed FDEP's nutrient rules, in conjunction with the supporting 
documentation provided, and approved FDEP's rules pursuant to section 
303(c) of the CWA. EPA's approval letter is available at: http://www.epa.gov/lawsregs/rulesregs/florida_index.cfm.
    FDEP's numeric nutrient criteria apply to a subset of flowing 
waters covered by EPA's January 14, 2009 determination and the Consent 
Decree; therefore, EPA must propose federal criteria for those flowing 
waters not covered by FDEP's rule. In a separate action, EPA is re-
proposing federal criteria that were remanded to EPA on February 18, 
2012, that would apply only to those flowing waters not covered by 
Florida's newly approved water quality standards.
    However, at this time, implementation of Florida's EPA-approved 
rules is unclear. A provision included in Florida's Rule, specifically 
subsection 62-302.531(9), F.A.C., casts some doubt as to whether the 
newly approved state water quality standards will go into effect if EPA 
proposes and promulgates numeric nutrient criteria for streams not 
covered by the State water quality standards. Therefore, it is unclear 
whether an EPA proposal to ``gap fill,'' or establish numeric criteria 
for nutrients for Florida flowing waters that FDEP does not cover in 
its Rule, would trigger 62-302.531(9), F.A.C. and result in much of 
Florida's newly approved state water quality standards not taking 
effect. See 62-302.531(9), F.A.C. In addition, due to a recent 
administrative challenge filed in the State of Florida Department of 
Administrative Hearings, there is uncertainty as to whether FDEP will 
be able to implement its newly approved state water quality standards 
consistent with FDEP's ``Implementation of Florida's Numeric Nutrient 
Standards'' (September 2012), a document describing how FDEP will 
implement its standards that EPA relied on in its approval.
    This stay would provide EPA time to clarify implementation of 
Florida's rules approved by EPA under CWA section 303(c) and take 
corresponding final action on EPA's proposal for the remanded portions 
of the inland waters rule (streams and default downstream protection 
values (DPVs) for unimpaired lakes), for which a notice of final 
rulemaking action must be signed by August 31, 2013, and which EPA 
expects would take effect on or around November 15, 2013. In addition, 
the stay would provide EPA time to initiate rulemaking to withdraw the 
corresponding Federal criteria for freshwater lakes and springs if 
Florida's criteria for freshwater lakes and springs will be implemented 
by the State, e.g., if 62-302.531(9), F.A.C. is not triggered.
    If, following consideration of public comment, EPA takes final 
action to stay these provisions, these provisions will be stayed until 
November 15, 2013. For more information on these actions, go to http://www.epa.gov/region4/water/wqs/index.html.

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 stays certain sections 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 stays certain sections 
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 proposed 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 proposed rule merely stays certain sections of an already 
promulgated regulation.
    This proposed 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 proposed 
rule does not establish any requirements that are applicable to small 
entities, but rather merely stays

[[Page 74452]]

certain sections 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 stays certain 
sections 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. 
This proposed 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 proposed rule. This rule will not 
impact the Tribes because it merely stays certain sections of already 
promulgated requirements.

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 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 stays certain sections of already 
promulgated requirements.

List of Subjects in 40 CFR Part 131

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

    Dated: November 30, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 131 is 
proposed to be amended 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--Federally Promulgated Water Quality Standards

    2. Effective [DATE OF PUBLICATION IN THE FEDERAL REGISTER OF FINAL 
RULE], 40 CFR 131.43(a)--(d) are stayed until November 15, 2013.
[FR Doc. 2012-29800 Filed 12-13-12; 8:45 am]
BILLING CODE 6560-50-P