[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Proposed Rules]
[Pages 18494-18497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07387]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9908-18-OW]
RIN 2040-AF50


Water Quality Standards for the State of Florida's Lakes and 
Flowing Waters; Withdrawal

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
withdraw federal water quality standards applicable to waters of the 
state of Florida now that Florida has adopted and EPA has approved 
relevant state standards. On December 6, 2010, EPA published a rule 
finalizing numeric nutrient standards for Florida's lakes, springs, and 
flowing waters outside of the South Florida Nutrient Watershed Region. 
EPA established these water quality standards to protect Florida's 
Class I and III freshwaters from nitrogen and phosphorus pollution. On 
November 30, 2012, June 27, 2013, and September 26, 2013, EPA approved 
numeric nutrient standards adopted by the state of Florida for certain 
waters in the state.
    Some of the water body types and provisions covered by state-
adopted water quality standards were also included in EPA's final 
inland waters rule (criteria for Florida's lakes and springs, 
approaches to protect downstream lakes, and a provision for developing 
Site-Specific Alternative Criteria). EPA is now proposing to withdraw 
the overlapping federally-promulgated water quality standards to allow 
Florida to implement their state-adopted, EPA-approved water quality 
standards to address nutrient pollution in Florida's waters. 
Additionally, EPA is not finalizing three 2012 federal proposed rules 
related to nutrient pollution in Florida.

DATES: Comments must be received on or before June 2, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
    1. 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 
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 www.regulations.gov or email. The 
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 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 the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
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 www.regulations.gov or in hard copy at a docket facility. The Office 
of Water (OW) Docket Center is open from 8:30 a.m. until 4:30 p.m., 
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: Erica Fleisig, U.S. EPA Headquarters, 
Office of Water, Mailcode: 4305T, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: (202) 566-1057; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:

I. General Information
    A. Which water bodies are affected by this action?
    B. What entities may be affected by this action?
    C. What should I consider as I prepare my comments for EPA?
    D. How can I get copies of this document and other related 
information?
II. Background
    A. Background on EPA's Inland Rule, Amended Determinations, and 
Approval of State Criteria
    B. 2014 District Court Ruling and Modification of Consent Decree
    C. Proposed Withdrawal of Federal Criteria for Lakes, Springs, 
and DPVs
III. Statutory and Executive Order Reviews
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health and Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect 
Energy Supply, Distribution, or Use)
    I. National Technology Transfer Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in

[[Page 18495]]

Minority Populations and Low-Income Populations)

I. General Information

A. Which water bodies are affected by this action?

    In this document, EPA is proposing to withdraw federally 
promulgated water quality standards (WQS) from a group of inland waters 
of the United States within Florida. Specifically, as defined below and 
in EPA's December 6, 2010 final inland waters rule (40 CFR 131.43), EPA 
is proposing to withdraw the federal criteria for Florida's Class I and 
III \1\ freshwater lakes and springs, as well as downstream protection 
values (DPVs) to protect downstream lakes and a provision for 
developing site-specific alternative criteria (SSAC) in all water 
bodies.
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    \1\ Subsection 62-302.400(1), Florida Administrative Code 
(F.A.C.) provides as follows:
    All surface waters of the state have been classified according 
to designated uses as follows:
    CLASS I Potable Water Supplies
    CLASS II Shellfish Propagation or Harvesting
    CLASS III Fish Consumption; Recreation, Propagation and 
Maintenance of a Healthy, Well-Balanced Population of Fish and 
Wildlife.
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    EPA's final inland waters rule defined ``Predominantly fresh 
waters'' to mean surface waters in which the chloride concentration at 
the surface is less than 1,500 milligrams per liter (mg/L). EPA defined 
``Lake'' as a slow-moving or standing body of freshwater that occupies 
an inland basin that is not a stream, spring, or wetland. Finally, EPA 
defined ``Spring'' as a site at which ground water flows through a 
natural opening in the ground onto the land surface or into a body of 
surface water.

B. What entities may be affected by this action?

    This action proposes to withdraw federal WQS applicable to certain 
waters in Florida for which the state has adopted criteria that EPA has 
determined are consistent with the CWA and EPA's implementing 
regulations. Citizens concerned with water quality, as well as the 
state of Florida--who was previously required to implement federal 
numeric nutrient criteria before this withdrawal, but will no longer be 
required to do so after this withdrawal is finalized--may be interested 
in this rulemaking. Also, entities discharging nitrogen or phosphorus 
to waters of Florida may be interested in this rulemaking because WQS 
are used in determining National Pollutant Discharge Elimination System 
(NPDES) permit limits. 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.

C. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit confidential business information 
(CBI) to EPA through http://www.regulations.gov or email. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD-ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Make sure to submit your comments by the comment period 
deadline identified.

D. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action under Docket Id. No. EPA-HQ-OW-2009-0596. The official public 
docket consists of the document specifically referenced in this action, 
any public comments received, and other information related to this 
action. Although a part of the official docket, the public docket does 
not include CBI or other information whose disclosure is restricted by 
statute. The official public docket is the collection of materials that 
is available for public viewing at the OW Docket, EPA West, Room 3334, 
1301 Constitution Ave. NW., Washington, DC 20004. This Docket Facility 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The Docket telephone number is (202) 566-2426. A 
reasonable fee will be charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. 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 the EPA Docket 
Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not 
all docket materials may be available electronically, you may still 
access any of the publicly available docket materials through the 
Docket Facility identified in Section I.D(1).

II. Background

A. Background on EPA's Inland Rule, Amended Determinations, and 
Approval of State Criteria

    On December 6, 2010, pursuant to a January 14, 2009 EPA 
determination and December 30, 2009 consent decree, EPA published the 
inland waters rule to establish numeric nutrient criteria for Florida's 
lakes, springs, and flowing waters outside of the South Florida 
Nutrient Watershed Region.\2\ These criteria also included three 
approaches for deriving DPVs, applicable to flowing waters at the point 
where they enter downstream lakes, which would ensure protection of 
downstream lakes as required by EPA's implementing regulations (40 CFR 
131.10(b)).
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    \2\ EPA defined the South Florida Nutrient Watershed Region as 
the area south of Lake Okeechobee, the Caloosahatchee River 
watershed (including Estero Bay) to the west of Lake Okeechobee, and 
the St. Lucie watershed to the east of Lake Okeechobee.
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    On November 30, 2012, EPA amended its January 14, 2009 
determination stating that numeric criteria for downstream protection 
are not necessary to meet CWA requirements in Florida. This was because 
Florida's approach to downstream protection, in

[[Page 18496]]

combination with nutrient criteria for nutrient-sensitive downstream 
water bodies, achieves timely and effective protection of downstream 
waters. With the additional clarification provided in Florida's 
``Implementation of Florida's Numeric Nutrient Standards'' rule-
referenced document on the scope of waters covered by state-adopted 
numeric nutrient criteria, EPA amended its January 2009 determination 
for a second time on June 28, 2013, concluding that numeric nutrient 
criteria are not necessary for a limited number of waters in the state 
of Florida (specifically, flowing waters in the South Florida Region, 
marine lakes, tidally-influenced flowing waters, and conveyances 
primarily used for water management purposes with marginal or poor 
stream habitat components).
    These actions, coupled with EPA's November 30, 2012, June 27, 2013, 
and September 26, 2013 approvals of Florida's numeric nutrient 
criteria, result in Florida having EPA-approved numeric nutrient 
criteria for all fresh water lakes, springs, estuaries and coastal 
waters, and the majority of flowing waters in the state.

B. 2014 District Court Ruling and Modification of Consent Decree

    On January 7, 2014, the U.S. District Court for the Northern 
District of Florida granted an EPA motion to modify the consent decree 
(Case No. 4:08-cv-324-RH, Florida Wildlife Fed'n v. McCarthy, 2014 WL 
51360 (N.D. Fla. Jan. 7, 2014)). As a result of this ruling, EPA is no 
longer obligated to promulgate numeric nutrient criteria for any of 
Florida's waters, and will therefore not be finalizing its November 30, 
2012 federal proposed rules addressing Florida's estuaries and coastal 
waters, inland waters in the South Florida Nutrient Watershed Region, 
and the remanded portions of the inland waters rule (77 FR 74923 and 77 
FR 74985, December 18, 2012). In addition, EPA will no longer be 
finalizing its December 14, 2012 proposal to temporarily stay portions 
of the inland waters rule. EPA can now withdraw already promulgated 
federal criteria so Florida's nutrient criteria can take effect.
    For more specifics on the Agency and court actions leading to this 
proposal, refer to the following:

EPA Determination Regarding Florida and Consent Decree: http://water.epa.gov/lawsregs/rulesregs/florida_consent.cfm.
Florida Adoption of Numeric Nutrient Criteria in 2012 and EPA Approval: 
http://www2.epa.gov/aboutepa/epa-florida.
EPA's 2012 Proposed Rulemaking: http://water.epa.gov/lawsregs/rulesregs/florida_index.cfm.
2013 EPA and FDEP Agreement in Principle and Path Forward: http://content.govdelivery.com/bulletins/gd/FLDEP-713cfb.

C. Proposed Withdrawal of Federal Criteria for Lakes, Springs, and DPVs

    Florida now has state-adopted, EPA-approved criteria for lakes and 
springs that are applicable for CWA purposes. Thus there is no need for 
overlapping federal criteria for such waters. With respect to federal 
DPVs, EPA determined on November 30, 2012 that numeric criteria for 
downstream protection are not necessary in Florida and that same day 
approved Florida's quantitative downstream protection approach. 
Finally, since Florida has its own process for developing SSAC, a 
federal SSAC process is unnecessary. Thus, EPA is proposing to withdraw 
the federal criteria for lakes and springs, federal DPVs, and the 
federal SSAC provision that took effect on January 6, 2013 (with the 
exception of the federal SSAC provision that went into effect on 
February 4, 2011) and solicits comments on this proposal.

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 rule does not impose any new information-collection burden 
because it is administratively withdrawing federal requirements that 
are no longer needed in Florida. It does not include any information-
collection, reporting, or recordkeeping requirements.

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 a 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 today's rule 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.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

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. 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. This rule proposes 
to remove federally-promulgated water quality standards addressing 
nutrient pollution in Florida in order to allow Florida to implement 
their state-adopted, EPA-approved water quality standards.

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 rule proposes to remove 
federally-promulgated water quality standards addressing nutrient 
pollution in Florida in order to allow Florida to implement their 
state-adopted, EPA-approved water quality standards. Thus, Executive

[[Page 18497]]

Order 13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicits comment on this proposed action 
from state and local officials.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
imposes no regulatory requirements or costs on any tribal government. 
It does not have substantial direct effects on tribal governments, the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this action.

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

    This rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant as defined in Executive Order 12866 and because the 
environmental health or safety risks addressed by this action do not 
present a disproportionate risk to children.
    The public is invited to submit comments or identify peer-reviewed 
studies and data that assess effects of early life exposure.

H. Executive Order 13211 (Actions 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 a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

    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. The 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 12898 (59 FR 7629, February 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.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because: (1) Florida's 
WQS apply to waters across the state, and thus this action will not 
disproportionately affect any one group over another, and (2) EPA has 
previously determined, based on the most current science, that 
Florida's adopted and EPA-approved criteria are protective of human 
health and aquatic life.

List of Subjects in 40 CFR Part 131

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

    Dated: March 26, 2014.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 131 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--Federally Promulgated Water Quality Standards


Sec.  131.43  [Removed]

0
2. Section 131.43 is removed.

[FR Doc. 2014-07387 Filed 4-1-14; 8:45 am]
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