National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule, 32887-32895 [E6-8814]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 109 (Wednesday, June 7, 2006)]
[Proposed Rules]
[Pages 32887-32895]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-8814]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2006-0141; FRL-8180-7]
RIN 2040-AE86


National Pollutant Discharge Elimination System (NPDES) Water 
Transfers Proposed Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing an amendment to its Clean Water Act (CWA) 
regulations to expressly exclude water transfers from regulation under 
the National Pollutant Discharge Elimination System (NPDES) permitting 
program. The proposed rule would define water transfers as an activity 
that conveys waters of the United States to another water of the United 
States without subjecting the water to intervening industrial, 
municipal, or commercial use. This proposed rule focuses exclusively on 
water transfers and is not relevant to whether any other activity is 
subject to the CWA permitting requirement.

DATES: Comments must be received on or before July 24, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2006-0141 by one of the following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions for submitting comments. EPA prefers to 
receive comments submitted electronically.
    (2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2006-0141.
    (3) Mail: Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mailcode 4203M, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
EPA-HQ-OW-2006-0141.
    (4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. EPA-HQ-OW-2006-0141. Such deliveries are only 
accepted during the Docket's normal hours of operation and special 
arrangements should be made.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2006-
0141. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://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 regulations.gov or e-
mail. The federal regulations.gov Web sites are ``anonymous access'' 
systems, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the Regulations 
index at https://www.regulations.gov/. Although listed in the index, 
some information is not publicly available, i.e., CBI or other 
information whose 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 at 
https://www.regulations.gov or in hard copy at the Water Docket in the 
EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. 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, and the telephone 
number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: For additional information contact 
Jeremy Arling, Water Permits Division, Office of Wastewater Management 
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-564-2218, e-mail address: 
arling.jeremy@epa.gov.

SUPPLEMENTARY INFORMATION:


I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
III. Rationale
    A. Statutory Language and Structure
    B. Legislative History
    C. Conclusion
IV. Scope of This Proposed Rule
V. Designation Authority
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and 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 Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Does This Action Apply to Me?

    This action applies to those involved in the transfer of waters of 
the United States. The following table provides a

[[Page 32888]]

list of standard industrial codes for operations covered under this 
revised rule.

          Table 1.--Entities Potentially Regulated by This Rule
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                                                        Examples of
           Category                   NAICS         potentially affected
                                                          entities
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Resource management parties     924110             Government
 (includes state departments     Administration     establishments
 of fish and wildlife, state     of Air and Water   primarily engaged in
 departments of pesticide        Resource and       the administration,
 regulation, state               Solid Waste        regulation, and
 environmental agencies, and     Management         enforcement of water
 universities).                  Programs.          resource programs;
                                                    the administration
                                                    and regulation of
                                                    water pollution
                                                    control and
                                                    prevention programs;
                                                    the administration
                                                    and regulation of
                                                    flood control
                                                    programs; the
                                                    administration and
                                                    regulation of
                                                    drainage development
                                                    and water resource
                                                    consumption
                                                    programs; and
                                                    coordination of
                                                    these activities at
                                                    intergovernmental
                                                    levels.
                                924120             Government
                                 Administration     establishments
                                 of Conservation    primarily engaged in
                                 Programs.          the administration,
                                                    regulation,
                                                    supervision and
                                                    control of land use,
                                                    including
                                                    recreational areas;
                                                    conservation and
                                                    preservation of
                                                    natural resources;
                                                    erosion control;
                                                    geological survey
                                                    program
                                                    administration;
                                                    weather forecasting
                                                    program
                                                    administration; and
                                                    the administration
                                                    and protection of
                                                    publicly and
                                                    privately owned
                                                    forest lands.
                                                    Government
                                                    establishments
                                                    responsible for
                                                    planning,
                                                    management,
                                                    regulation and
                                                    conservation of
                                                    game, fish, and
                                                    wildlife
                                                    populations,
                                                    including wildlife
                                                    management areas and
                                                    field stations; and
                                                    other administrative
                                                    matters relating to
                                                    the protection of
                                                    fish, game, and
                                                    wildlife are
                                                    included in this
                                                    industry.
                                237110 Water and   This category
                                 Sewer Line and     includes entities
                                 Related            primarily engaged in
                                 Structures         the construction of
                                 Construction.      water and sewer
                                                    lines, mains,
                                                    pumping stations,
                                                    treatment plants and
                                                    storage tanks.
                                237990 Other       This category
                                 Heavy and Civil    includes dam
                                 Engineering        Construction and
                                 Construction.      management, flood
                                                    control structure
                                                    construction,
                                                    drainage canal and
                                                    ditch construction,
                                                    flood control
                                                    project
                                                    construction, and
                                                    spillway,
                                                    floodwater,
                                                    construction
Public Water Supply...........  221310 Water       This category
                                 Supply.            includes entities
                                                    engaged in operating
                                                    water treatment
                                                    plants and/or
                                                    operating water
                                                    supply systems. The
                                                    water supply system
                                                    may include pumping
                                                    stations, aqueducts,
                                                    and/or distribution
                                                    mains. The water may
                                                    be used for
                                                    drinking,
                                                    irrigation, or other
                                                    uses.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be regulated. EPA welcomes comment 
identifying those other entities. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting Confidential Business Information. Do not submit this 
information to EPA through regulations.gov or e-mail. 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:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. 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.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    Water transfers occur routinely and in many different contexts 
across the United States. Typically, water transfers route water 
through tunnels, channels, and/or natural stream water features, and 
either pump or passively direct it for uses such as providing public 
water supply, irrigation, power generation, flood control, and 
environmental restoration. Water transfers can be relatively simple, 
moving a small quantity of water a short distance on the same stream, 
or very complex, transporting substantial quantities of water over long 
distances, across both state and basin boundaries. There are thousands 
of water transfers currently in place in the United States, including 
16 major diversion projects in the western States alone. Examples 
include the Colorado-Big Thompson Project in Colorado and the Central 
Valley Project in California.
    Water transfers are administered by various federal, State, and 
local agencies and other entities. The Bureau of

[[Page 32889]]

Reclamation administers significant transfers in western States to 
provide approximately 140,000 farmers with irrigation water. With the 
use of water transfers, the Army Corps of Engineers keeps thousands of 
acres of agricultural and urban land in southern Florida from flooding 
in former areas of Everglades wetlands. Many large cities in the west 
and the east would not have adequate sources of water for their 
citizens were it not for the continuous redirection of water from 
outside basins. For example, both the cities of New York and Los 
Angeles are dependent on water transfers from distant watersheds to 
meet their municipal demand. In short, numerous States, localities, and 
residents are dependent upon water transfers, and these transfers are 
an integral component of U.S. infrastructure.
    Although there have been a few isolated instances where entities 
responsible for water transfers have been issued NPDES permits, EPA is 
aware of only one State that has a practice of issuing NPDES permits 
for water transfers.\1\ Water transfers are not generally subject to 
section 402 of the Clean Water Act. However, the Act reserves the 
ability of States to regulate water transfers under State law and this 
proposed rulemaking does not affect this state prerogative. See CWA 
section 510.
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    \1\ For instance, courts required NPDES permits for water 
transfers associated with the expansion of a ski resort and the 
supply of drinking water. See Dubois v. United States Dept. of Ag., 
103 F.3d 1273 (1st Cir 1996) and Catskill Mountains Chapter of Trout 
Unlimited, Inc. v. City of New York, 273 F.3d 481 (2nd Cir 2001). 
Pennsylvania began issuing permits for water transfers in 1986, in 
response to a State court decision mandating the issuance of such 
permits. DELAWARE Unlimited v. DER, 508 A.2d 348 (Pa. Cmwlth, 1986).
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    The question of whether or not an NPDES permit is required for 
water transfers has arisen because activities that result in the 
movement of waters of the U.S., such as trans-basin transfers of water 
to serve municipal, agricultural, and commercial needs, can also move 
pollutants from one waterbody (donor water) to another (receiving 
water). The Supreme Court recently discussed this issue in South Fla. 
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), 
leaving the matter unresolved. In this case, the Supreme Court vacated 
a decision by the 11th Circuit, which had held that a Clean Water Act 
permit was required for transferring water from one navigable water 
into another, a Water Conservation Area in the Florida Everglades. The 
Court remanded the case for further fact-finding as to whether the two 
waters in question were ``meaningfully distinct.'' If they were not, no 
permit would be required. The Court declined to address legal arguments 
made by the parties because the arguments had not been raised in the 
lower court proceedings. The Court noted that EPA had not spoken to 
these legal issues in an administrative document. 541 U.S. at 107.
    On August 5, 2005, EPA issued a legal memorandum entitled ``Agency 
Interpretation on Applicability of Section 402 of the Clean Water Act 
to Water Transfers.'' (interpretive memorandum) The precise legal 
question addressed in the interpretive memorandum was whether the 
movement of pollutants from one water of the U.S. to another by a water 
transfer is the ``addition'' of a pollutant potentially subjecting the 
activity to the permitting requirement under section 402 of the Act. 
Based on the statute as a whole and consistent with the Agency's 
longstanding practice, the interpretive memorandum concluded that 
Congress intended for water transfers to be subject to oversight by 
water resource management agencies and State non-NPDES authorities, 
rather than the permitting program under section 402 of the CWA.
    Today, EPA is proposing an amendment to its Clean Water Act (CWA) 
regulations to expressly exclude water transfers from regulation under 
section 402 of the CWA. The proposed rule would define water transfers 
as an activity that conveys waters of the United States to another 
water of the United States without subjecting the water to intervening 
industrial, municipal, or commercial use. This proposed rule focuses 
exclusively on water transfers and is not relevant to whether any other 
activity is subject to the CWA permitting requirement.
    This proposed rule is organized as follows. Section III discusses 
the rationale for this exclusion, based on the language, structure, and 
legislative history of the Clean Water Act; section IV describes the 
scope of this proposed rule; and section V describes ``designation 
authority'' as an additional element that the Agency chose not to 
propose but for which the Agency is interested in receiving public 
comment.

III. Rationale

    As stated in EPA's August 5th interpretive memorandum (available at 
Docket No. EPA-HQ-OW-2006-0141), based on the CWA as a whole, the 
Agency concludes that Congress intended to leave the oversight of water 
transfers to authorities other than the NPDES program. This proposed 
rule is based on the legal analysis contained in the interpretive 
memorandum and explained below.
    Statutory construction principles instruct that the Clean Water Act 
should be interpreted by analyzing the statute as a whole. United 
States v. Boisdore's Heirs, 49 U.S. 113, 122 (1850). The Supreme Court 
has long explained ``in expounding a statute, we must not be guided by 
a single sentence or member of a sentence, but look to the provisions 
of the whole law, and its object and policy.'' Id. See also, Gustafond 
v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995), Smith v. United States, 
508 U.S. 223, 233 (1993), United States Nat'l Bank of Or. v. 
Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993). In 
general, the ``whole statute'' interpretation analysis means that ``a 
statute is passed as a whole and not in parts or sections and is 
animated by one general purpose and intent. Consequently, each part or 
section should be construed in connection with every other part or 
section so as to produce a harmonious whole.'' Norman J. Singer, 
Statutes and Statutory Construction vol. 2A Sec.  46:05, 154 (6th ed., 
West Group 2000). As the Second Circuit has explained with regard to 
the CWA:

    Although the canons of statutory interpretation provide a court 
with numerous avenues for supplementing and narrowing the possible 
meaning of ambiguous text, most helpful to our interpretation of the 
CWA in this case are two rules. First, when determining which 
reasonable meaning should prevail, the text should be placed in the 
context of the entire statutory structure [quoting United States v. 
Dauray, 215 F.3d 257, 262 (2d Cir. 2000)]. Second, `absurd results 
are to be avoided and internal inconsistencies in the statute must 
be dealt with.' United States v. Turkette, 452 U.S. 576, 580 (1981).

Natural Res. Def. Council v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001). 
See also, Singer, vol. 3B Sec.  77:4, at 256-258.
    A holistic approach is needed here in particular because the heart 
of this matter is the balance Congress created between federal and 
State oversight of activities affecting the nation's waters. The 
purpose of the CWA is to protect water quality. Congress nonetheless 
recognized that programs already existed at the State and local levels 
for managing water quantity, and it recognized the delicate 
relationship between the CWA and State and local programs. Looking at 
the statute as a whole is necessary to ensure that the analysis here is 
consonant with Congress' overall policies and objectives in the 
management and regulation of the nation's water resources.

[[Page 32890]]

    The analysis below addresses in turn the statutory language and 
structure and the legislative history.

A. Statutory Language and Structure

    The Clean Water Act prohibits the discharge of a pollutant by any 
person except in compliance with specified statutory sections, 
including section 402. CWA section 301(a). The term ``discharge of a 
pollutant'' is defined as ``any addition of any pollutant to navigable 
waters from any point source.'' CWA section 502(12). Where discharges 
of pollutants occur, they are generally regulated by a permit under the 
NPDES program. Discharges of pollutants other than dredged or fill 
material may be authorized by permits issued under section 402 by EPA 
or States with approved permitting programs. Discharges of dredged or 
fill material may be authorized by permits issued by the Army Corps of 
Engineers and authorized States under section 404, and that provision 
is not addressed or affected by this Agency interpretation.
    While no one provision of the Act expressly addresses whether water 
transfers are subject to the NPDES program, the specific statutory 
provisions addressing the management of water resources--coupled with 
the overall statutory structure--support the conclusion that Congress 
did not intend for water transfers to be regulated under section 402. 
The Act establishes a variety of programs and regulatory initiatives in 
addition to the NPDES permitting program. It also recognizes that the 
States have primary responsibilities with respect to the ``development 
and use (including restoration, preservation, and enhancement) of land 
and water resources.'' CWA section 101(b).
    Congress also made clear that the Clean Water Act is to be 
construed in a manner that does not unduly interfere with the ability 
of States to allocate water within their boundaries, stating:

    It is the policy of Congress that the authority of each State to 
allocate quantities of water within its jurisdiction shall not be 
superseded, abrogated or otherwise impaired by [the Act]. It is the 
further policy of Congress that nothing in this chapter shall be 
construed to supersede or abrogate rights to quantities of water 
which have been established by any State. Federal agencies shall co-
operate with State and local agencies to develop comprehensive 
solutions to prevent, reduce and eliminate pollution in concert with 
programs for managing water sources.

CWA section 101(g). While section 101(g) does not prohibit EPA from 
taking actions under the CWA that it determines are needed to protect 
water quality,\2\ it nonetheless establishes Congress' general 
direction against unnecessary Federal interference with State 
allocations of water rights.
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    \2\ PUD No. 1 of Jefferson County. v. Wash. State Dep't. of 
Ecology, 511 U.S. 700, 720 (1994) (``Sections 101(g) and 510(2) 
preserve the authority of each State to allocate water quantity as 
between users; they do not limit the scope of water pollution 
controls that may be imposed on users who have obtained, pursuant to 
state law, a water allocation.'').
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    Water transfers are an essential component of the nation's 
infrastructure for delivering water that users are entitled to receive 
under State law. Because subjecting water transfers to a federal 
permitting scheme could unnecessarily interfere with State decisions on 
allocations of water rights, this section provides additional support 
for the Agency's interpretation that, absent a clear Congressional 
intent to the contrary, it is reasonable to read the statute as not 
requiring NPDES permits for water transfers. See United States v. Bass, 
404 U.S. 336, 349 (1971) (``unless Congress conveys its purpose 
clearly, it will not be deemed to have significantly changed the 
federal-state balance.'') A second statutory provision, section 510(2), 
similarly provides:

    Except as expressly provided in this Act, nothing in this Act 
shall * * * be construed as impairing or in any manner affecting any 
right or jurisdiction of the States with respect to the waters 
(including boundary waters) of such States.

Like section 101(g), this provision supports the notion that Congress 
did not intend administration of the CWA to unduly interfere with water 
resource allocation.
    Finally, one section of the Act--304(f)--expressly addresses water 
management activities. Mere mention of an activity in section 304(f) 
does not mean it is exclusively nonpoint source in nature. See 
Miccosukee at 106 (noting that section 304(f)(2)(F) does not explicitly 
exempt nonpoint sources if they also fall within the definition of 
point source). Nonetheless, section 304(f) is focused primarily on 
addressing pollution sources outside the scope of the NPDES program. 
See H.R. Rep. No. 92-911, at 109 (1972), reprinted in Legislative 
History of the Water Pollution Control Act Amendments of 1972, Vol. 1 
at 796 (Comm. Print 1973) (``[t]his section * * * on * * * nonpoint 
sources is among the most important in the 1972 Amendments'') (emphasis 
added)). This section directed EPA to issue guidelines for identifying 
and evaluating the nature and extent of nonpoint sources of 
pollutants,\3\ as well as processes, procedures and methods to control 
pollution from, among other things, ``changes in the movement, flow or 
circulation of any navigable waters or ground waters, including changes 
caused by the construction of dams, levees, channels, causeways, or 
flow diversion facilities.'' CWA 304(f)(2)(F) (emphasis added).
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    \3\ Sources not regulated under sections 402 or 404 are 
generically referred to as ``nonpoint sources.'' See National 
Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir. 
1988) (``nonpoint source'' is shorthand for and ``includes all water 
quality problems not subject to section 402'') (quoting National 
Wildlife Fed'n v. Gorsuch, 693 F.2d 156,166) (D.C. Cir. 1982) 
(internal quotation marks omitted)).
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    While section 304(f) does not exclusively address nonpoint sources 
of pollution, it nonetheless ``concerns nonpoint sources'' (Miccosukee, 
541 U.S. at 106) and reflects an understanding by Congress that water 
movement could result in pollution, and that such pollution would be 
managed by States under their nonpoint source program authorities, 
rather than the NPDES program. This proposed rule accords with the 
direction to EPA and other federal agencies in section 101(g) to work 
with State and local agencies to develop ``comprehensive solutions'' to 
water pollution problems ``in concert with programs for managing water 
resources.''
    Thus, these sections of the Act together demonstrate that Congress 
was aware that there might be pollution associated with water 
management activities, but chose to defer to comprehensive solutions 
developed by State and local agencies for controlling such pollution. 
Because the NPDES program only focuses on water pollution from point 
source discharges, it is not the kind of comprehensive program that 
Congress believed was best suited to addressing pollution that may be 
associated with water transfers.
    In contrast with these provisions of the statute which expressly 
address water management activities, the general prohibition and 
definition sections of the statute do not explicitly discuss water 
management. Section 301(a) of the Act proscribes ``the discharge of any 
pollutant by any person'' except in compliance with specified sections 
of the CWA, including section 402. ``Discharge of a pollutant'' is 
defined as ``any addition of any pollutant to navigable waters from any 
point source.'' CWA section 502(12). While the statute does not define 
``addition,'' sections 101(g), 102(b), 304(f) and 510(2) provide a 
strong indication that the term

[[Page 32891]]

``addition'' should be interpreted in accordance with those more 
specific sections of the statute. In light of Congress' clearly 
expressed policy not to unnecessarily interfere with water resource 
allocation and its inclusion of changes in the movement, flow or 
circulation of any water of the U.S. in a section of the Act addressing 
sources of pollutants that would not be subject to regulation under 
section 402, it is reasonable to interpret ``addition'' as not 
generally including the mere transfer of waters from one water of the 
U.S. to another.
    The overall structure of the statute further supports this 
conclusion. In several important ways, water transfers are unlike the 
types of discharges that were the primary focus of Congressional 
attention in 1972. Discharges of pollutants covered by section 402 are 
subject to ``effluent'' limitations. Water transfers, however, are not 
like effluent from an industrial, commercial or municipal operation. 
Rather than discharge effluent, water transfers release one water of 
the U.S. into another.
    The operators of water control facilities are generally not 
responsible for the presence of pollutants in the waters they 
transport. Rather, those pollutants often enter ``the waters of the 
United States'' through point and nonpoint sources located far from 
those facilities and beyond control of the project operators. Congress 
generally intended that pollutants be controlled at the source whenever 
possible. See S. Rep. No. 92-414, p. 77 (1972) (justifying the broad 
definition of navigable waters because it is ``essential that discharge 
of pollutants be controlled at the source'').\4\ The pollutants in 
transferred waters are more sensibly addressed through water resource 
planning and land use regulations, which attack the problem at its 
source. See, e.g., CWA section 102(b) (reservoir planning); CWA section 
208(b)(2)(F) (land use planning to reduce agricultural nonpoint sources 
of pollution); CWA section 319 (nonpoint source management programs); 
and CWA section 401 (state certification of federally licensed 
projects). Congress acknowledged this when it directed Federal agencies 
to co-operate with State and local agencies to develop comprehensive 
solutions to prevent, reduce and eliminate pollution in concert with 
programs for managing water sources.
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    \4\ Recognition of a general intent to control pollutants at the 
source does not mean that dischargers are responsible only for 
pollutants that they generate; rather, point sources need only 
convey pollutants into navigable waters to be subject to the Act. 
See Miccosukee at 105. Municipal separate storm sewer systems, for 
example, are clearly subject to regulation under the Act. CWA 
section 402(p).
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    The Agency, therefore, concludes that, taken as a whole, the 
statutory language and structure of the Clean Water Act indicate that 
Congress did not generally intend to subject water transfers to the 
NPDES program. Rather, Congress intended to leave oversight of water 
transfers to water resource management agencies and the States in 
cooperation with Federal authorities.

B. Legislative History

    The legislative history of the Clean Water Act also supports this 
conclusion. First, the legislative history of section 101(g) reveals 
that ``[i]t is the purpose of this [provision] to insure that State 
[water] allocation systems are not subverted.'' 3 Congressional 
Research Serv., U.S. Library of Congress, Serial No. 95-14, A 
Legislative History of the Clean Water Act of 1977, at 532 (1978); see 
PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 
700, 721 (1994).
    Notably, the legislative history of the Act discusses water flow 
management activities only in the context of the nonpoint source 
program. In discussing section 304(f), the House Committee Report 
specifically mentioned water flow management as an area where EPA would 
provide technical guidance to States for their nonpoint source 
programs, rather than an area to be regulated under section 402.

    This section and the information on such nonpoint sources is 
among the most important in the 1972 Amendments. * * * The 
Committee, therefore, expects the Administrator to be most diligent 
in gathering and distribution of the guidelines for the 
identification of nonpoint sources and the information on processes, 
procedures, and methods for control of pollution from such nonpoint 
sources as * * * natural and manmade changes in the normal flow of 
surface and ground waters.

H.R. Rep. No. 92-911, at 109 (1972) (emphasis added).
    In the legislative history of section 208 of the Act, the House 
Committee report noted that in some States, water resource management 
agencies allocating stream flows are required to consider water quality 
impacts. The Report stated:

    [I]n some States water resource development agencies are 
responsible for allocation of stream flow and are required to give 
full consideration to the effects on water quality. To avoid 
duplication, the Committee believes that a State which has an 
approved program for the handling of permits under section 402, and 
which has a program for water resource allocation should continue to 
exercise the primary responsibility in both of these areas and thus 
provide a balanced management control system.

H.R. Rep. No. 92-911, at 96 (1972).
    Thus, Congress recognized that the new section 402 permitting 
program was not the only viable approach for addressing water quality 
issues associated with State water resource management. The legislative 
history makes clear that Congress did not intend a wholesale transfer 
of responsibility for water quality away from water resource agencies 
to the NPDES authority. Rather, Congress encouraged States to obtain 
approval of authority to administer the NPDES program under section 
402(b) so that the NPDES program could work in concert with water 
resource agencies' oversight of water management activities to ensure a 
``balanced management control system.'' Id.

C. Conclusion

    In sum, the language, structure, and legislative history of the 
statute all support the conclusion that Congress did not intend to 
subject water transfers to the NPDES program. Water transfers are an 
integral part of water resource management; they embody how States and 
resource agencies manage the nation's water resources and balance 
competing needs for water. Water transfers also physically implement 
State regimes for allocating water rights, many of which existed long 
before enactment of the Clean Water Act. Congress was aware of those 
regimes, and did not want to impair the ability of these agencies to 
carry them out. Finding the NPDES program generally inapplicable to 
water transfers is true to this intent and the structure of the Clean 
Water Act, and gives meaning to sections 101(g) and 304(f) of the Act.

IV. Scope of This Proposed Rule

    This proposed rule would expressly exclude discharges from water 
transfers from requiring an NPDES permit. The rule would define a water 
transfer as an activity that conveys waters of the United States to 
another water of the United States without subjecting the water to 
intervening industrial, municipal, or commercial use. Waters of the 
U.S. are defined for purposes of the NPDES program in the Code of 
Federal Regulations in Sec.  122.2.
    A water transfer occurs between two ``waters of the United 
States.'' Accordingly, the movement of water through a dam is not a 
water transfer because the dam merely conveys water from one location 
to another within the same waterbody. However, in both cases (water 
transfers between distinct water

[[Page 32892]]

bodies and movement of waters within the same waterbody), an NPDES 
permit is not required because no ``addition'' of a pollutant has 
occurred.
    Water transfer facilities should be able to be operated and 
maintained in a manner which ensures that they do not add pollutants to 
the water being transferred. If no pollutants are added, a permit would 
not be required. However, where these point sources do add pollutants 
to water passing through the structure into the downstream water, NPDES 
permits are required. Consumers Power, 862 F.2d at 588; Gorsuch, 693 
F.2d at 165, n. 22. Nothing in this rulemaking affects EPA's 
longstanding approach to regulation of such discharges under section 
402.
    This proposed rule would not affect EPA's longstanding position 
that, if water is withdrawn from waters of the U.S. for an intervening 
industrial, municipal or commercial use, the reintroduction of the 
intake water and associated pollutants is an ``addition'' subject to 
NPDES permitting requirements. EPA has long imposed NPDES requirements 
on entities that withdraw process water or cooling water and then 
return some or all of the water through a point source. See, e.g., 40 
CFR 122.2 (definition of process wastewater); 40 CFR 125.80-125.89 
(regulation of cooling towers); 40 CFR 122.45(g) (regulations governing 
intake pollutants for technology-based permitting); 40 CFR part 132, 
Appendix F, Procedure 5-D (containing regulations governing water 
quality-based permitting for intake pollutants in the Great Lakes). 
Moreover, a discharge from a waste treatment system, for example, to a 
water of the United States, would not constitute a water transfer (and 
would require an NPDES permit). See 40 CFR 122.2. These situations are 
distinguished from the water transfers that are the subject of this 
notice because if water is withdrawn from navigable waters for an 
intervening industrial, municipal or commercial use, the reintroduction 
of that intake water and associated pollutants physically introduces 
pollutants from the outside world into navigable waters and, therefore, 
is an ``addition'' subject to NPDES permitting requirements. The fact 
that some of the pollutants in the discharge may have been present in 
the source water does not remove the need for a permit, although, under 
some circumstances, permittees may receive ``credit'' in their effluent 
limitations for such pollutants. See, 40 CFR 122.45(g) (regulations 
governing intake pollutants for technology-based permitting); 40 CFR 
part 132, Appendix F, Procedure 5-D (containing regulations governing 
water quality-based permitting for intake pollutants in the Great 
Lakes).
    Similarly, an NPDES permit is normally required if a facility 
withdraws water from a water of the U.S., removes preexisting 
pollutants to purify the water, and then discharges the removed 
pollutants (perhaps in concentrated form) back into the water of the 
U.S. while retaining the purified water for use in the facility. An 
example of this situation is drinking water treatment facilities, which 
withdraw water from streams, rivers, and lakes. The withdrawn water 
typically contains suspended solids, which must be removed to make the 
water potable. The removed solids are a waste material from the 
treatment process and, if discharged into waters of the U.S., are 
subject to NPDES permitting requirements, even though that waste 
material originated in the withdrawn water. See, e.g., In re City of 
Phoenix, Arizona Squaw Peak & Deer Valley Water Treatment Plants, 9 
E.A.D. 515, 2000 WL 1664964 (EPA Envtl. App. Bd. November 1, 2000) 
(rejecting, on procedural grounds, challenges to NPDES permits for two 
drinking water treatment plants that draw raw water from the Arizona 
Canal, remove suspended solids to purify the water, and discharge the 
solids back into the Canal; Final NPDES General Permits for Water 
Treatment Facility Discharges in the State of Massachusetts and New 
Hampshire, 65 FR 69,000 (2000) (NPDES permits for discharges of process 
wastewaters from drinking water treatment plants).
    Waters that are diverted and used for irrigation and then 
reintroduced to the waters of the U.S. are exempt from permitting 
requirements under the exemption for return flows from irrigated 
agriculture from the definition of ``point source'' in section 502(14) 
and this Agency interpretation does not affect that exemption.
    The activities addressed by this proposed rule also stand in sharp 
contrast to other activities that have long been subject to the Clean 
Water Act's permitting requirements. For example, section 402 subjects 
placer mining of ore deposits in streams and rivers to the NPDES 
permitting program because the process results in the excavation and 
point source discharge of dirt and gravel into waters of the U.S. See 
Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990). Similarly, 
section 404 of the Clean Water Act subjects the deposit or redeposit of 
dredged or fill material to a specialized permitting program because 
that activity results in the point source discharge of those materials 
into navigable waters. See CWA section 404; United States v. Deaton, 
209 F.3d 331, 335-336 (4th Cir. 2000); United States v. M.C.C. of Fla., 
Inc., 772 F.2d 1501, 1503-1506 (11th Cir. 1985), vacated on other 
grounds, 481 U.S. 1034 (1987), readopted in relevant part, 848 F.2d 
1133 (11th Cir. 1988); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 
F.2d 897, 923-925 (5th Cir. 1983). The Clean Water Act also clearly 
imposes permitting requirements on publicly owned treatment works, and 
large and medium municipal separate storm sewer systems. See CWA 
sections 402(a), 402(p)(1)-(4). Congress amended the Clean Water Act in 
1987 specifically to add new section 402(p) to better regulate 
stormwater discharges from point sources. Water Quality Act of 1987, 
Public Law 100-4, 101 Stat. 7 (1987). Again, this interpretation does 
not affect EPA's longstanding regulation of such discharges.
    This proposed rule also would not change EPA's longstanding 
position, upheld by the Supreme Court in Miccosukee, that the 
definition of ``discharge of a pollutant'' in the CWA includes coverage 
of point sources that do not themselves generate pollutants. The 
Supreme Court stated, ``A point source is, by definition, a 
`discernible, confined, and discrete conveyance' Section 1362(14) 
(emphasis added). That definition makes plain that a point source need 
not be the original source of the pollutant; it need only convey the 
pollutant to `navigable waters,' which are, in turn, defined as `the 
waters of the United States.' Section 1362(7).'' Miccosukee, 541 U.S. 
at 105.
    EPA solicits comment on the proposed definition of a water 
transfer. Does the definition properly achieve the Agency's objective 
of excluding water transfers from NPDES permitting (as intended by 
Congress) while affirming section 402 jurisdiction over all other 
currently regulated activities? Does the proposed rule clearly 
distinguish between situations where the water transfer facility 
``adds'' pollutants to the water being transferred and thus must obtain 
a permit, and those situations where waters merely pass through the 
facility without the addition of any pollutant?

V. Designation Authority

    EPA considered, but ultimately did not propose, an additional 
provision allowing States to designate particular water transfers as 
subject to the NPDES program on a case-by-case basis. EPA did not 
select this option but is seeking comment on it.
    Under this approach, the permitting authority would have the 
discretion to

[[Page 32893]]

issue a permit on a case-by-case basis if a transfer would cause a 
significant impairment of a designated use and no State authorities are 
being implemented to adequately address the problem. A significant 
impairment would occur when, as a result of the water transfer, the 
designated use of the receiving water could no longer be maintained. 
This designation would be at the sole discretion of the State NPDES 
authority, and would only apply in States authorized to implement the 
section 402 program.
    Again, the Agency is not proposing to establish designation 
authority, but EPA is interested in the programs States have to address 
water quality impacts from water transfers, how they are being 
implemented, and what is the best way to fill any gaps in how States 
address those impacts currently. EPA notes that, regardless of whether 
it includes this designation authority in the final rule or not, States 
retain the authority under State law to regulate water transfers as 
they see fit, including requiring permits for such transfers. Without 
designation authority, however, these permits could not be issued under 
NPDES program authority.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

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. 
This proposed rulemaking would expressly exclude discharges from water 
transfers from requiring an NPDES permit. This rule does not seek to 
require potentially affected entities to generate, maintain, retain, or 
disclose information to or for a Federal agency and therefore would not 
impose any information collection burden.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

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 proposed 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 
adverse economic impact on a substantial number of small entities. 
Because EPA is simply codifying the Agency's longtime position that 
Congress did not generally intend for the NPDES program to regulate the 
transfer of waters of the United States into another water of the 
United States, this proposed action will not impose any requirement 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

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments

[[Page 32894]]

to have meaningful and timely input in the development of EPA 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    EPA has determined that this proposed rule would 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. EPA is proposing to simply codify the 
Agency's longtime position that Congress did not generally intend for 
the NPDES program to regulate the transfer of a water of the United 
States into another water of the United States. Thus, today's proposed 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA. For the same reason, EPA has determined that this rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments. Thus, today's proposed rule is not subject to the 
requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism 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 State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. Under section 6(c) of Executive 
Order 13132, EPA may not issue a regulation that has federalism 
implications and that preempts State law, unless the Agency consults 
with State and local officials early in the process of developing the 
proposed regulation.
    EPA has concluded that this proposed rule 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. 
Today's proposed rule does not change the relationship between the 
government and the States or change their roles and responsibilities. 
Rather, this proposed rulemaking would confirm the Agency's 
longstanding practice that Congress generally intended for water 
transfers to be subject to oversight by water resource management 
agencies and State non-NPDES authorities, rather than the permitting 
program under section 402 of the CWA. In addition, EPA does not expect 
this rule to have any impact on local governments.
    Further, the revised regulations would not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA 
authorizes States to carry out the NPDES permitting program. EPA 
expects the revised regulations to have little effect on the 
relationship between, or the distribution of power and responsibilities 
among, the Federal and State governments. Thus, Executive Order 13132 
does not apply to this rule.
    Consistent with EPA policy, EPA nonetheless consulted with 
representatives of State governments early in the process of developing 
the proposed regulation to permit them to have meaningful and timely 
input into its development. EPA asked States for data regarding the 
number of water transfers within their jurisdiction and the mechanisms 
under State law that could be utilized to address any possibly adverse 
water quality impacts from those transfers. In considering the 
designation authority provision, EPA also sought data from the States 
regarding their use of similar authorities in their stormwater phase II 
and Concentrated Animal Feeding Operations (CAFO) rules. In addition to 
data collection, EPA sought States' opinions on water transfers 
generally, and designation, specifically. States varied in their 
concerns, with some opposed to NPDES permitting for water transfers and 
some supportive of an ability to use it.
    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 rule 
from State and local officials.

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

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Today's proposed rule would clarify that Congress did not generally 
intend for the NPDES program to regulate the transfer of waters of the 
United States into another water of the United States. Nothing in this 
rule would prevent an Indian Tribe from exercising its own organic 
authority to deal with such matters. Thus, Executive Order 13175 does 
not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective

[[Page 32895]]

and reasonably feasible alternatives considered by the Agency.
    This regulation is not subject to Executive Order 13045 because it 
is not economically significant as defined under E.O. 12866, and 
because the Agency does not have reason to believe that it addresses 
environmental health and safety risks that present a disproportionate 
risk to children. Today's proposed rule would simply clarify Congress's 
intent that water transfers generally be subject to oversight by water 
resource management agencies and State non-NPDES authorities, rather 
than the permitting program under section 402 of the CWA.

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

    This proposed rule would not be subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not an economically significant regulatory action under Executive 
Order 12866.

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, section 12(d) (15 U.S.C. 
272 note) directs EPA t