Phosphorus Water Quality Standards for Florida Everglades, 38592-38597 [2011-16616]
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is presented above in the ADDRESSES
section.
Dated: June 24, 2011.
Gina McCarthy,
Assistant Administrator.
[FR Doc. 2011–16496 Filed 6–30–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 131
[EPA–HQ–OW–2011–0515; FRL–9428–3]
Phosphorus Water Quality Standards
for Florida Everglades
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a rule that
would identify provisions of Florida’s
Water Quality Standards for Phosphorus
in the Everglades Protection Area
(Phosphorus Rule) and Florida’s
Amended Everglades Forever Act (EFA)
that EPA has disapproved and that
therefore are not applicable water
quality standards for purposes of the
Clean Water Act. EPA is proposing
today’s rule following EPA’s
disapproval of these provisions and
EPA’s specific directions to the State of
Florida to correct these deficiencies in
the Phosphorus Rule and EFA. EPA’s
disapproval, specific directions to the
State, and today’s proposed rule
implement two orders by the U.S.
District Court for the Southern District
of Florida. The intended effect of
today’s proposed rule is to identify only
those provisions of Florida law that EPA
has disapproved and that therefore are
not applicable water quality standards
for purposes of the Clean Water Act.
DATES: Comments must be received on
or before August 1, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OW–2011–0515 by one of the following
methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments. This electronic docket is
EPA’s preferred method of receiving
comments.
• Mail: Water Docket, U.S.
Environmental Protection Agency, Mail
Code: 2822T, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
• Hand Delivery: EPA Docket Center,
EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. 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–2011–
0515. 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 https://
www.regulations.gov or e-mail. The
https://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 e-mail comment directly
to EPA without going through https://
www.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. For additional instructions on
submitting comments, go to section I.D
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket
are listed in the https://
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 https://
www.regulations.gov or in hard copy at
the OW Docket Center, which is open
from 8:30 until 4:30 pm, 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:
Mario Sengco, Standards and Health
Protection Division, Office of Science
and Technology, Mail Code: 4305T,
Environmental Protection Agency, 1200
Pennsylvania Avenue, NW.,
Washington, DC 20460; telephone
number: (202) 566–2676; e-mail:
sengco.mario@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What entities may be affected by this
rule?
Citizens concerned with water quality
in Florida may be interested in this
rulemaking. Entities discharging
phosphorus to waters upstream of the
Everglades Protection Area could be
indirectly affected by the Phosphorus
Rule and EFA, although not specifically
by this proposed rulemaking because
the current action further addresses
prior disapproval by EPA of certain
provisions of the Phosphorus Rule and
EFA. Any indirect affect to entities
would be because the water quality
standards contained in the State’s
regulation and statute are used in
determining National Pollutant
Discharge Elimination System (NPDES)
permit limits. With this in mind,
categories and entities that may
ultimately be indirectly affected
include:
Category
Examples of potentially affected entities
Water Management Districts ...............................
Entities responsible for managing point source discharges near the Everglades Protection
Area.
Entities responsible for contributing nonpoint source runoff near the Everglades Protection
Area.
Nonpoint Source Contributors .............................
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This table is not intended to be
exhaustive, but rather provides a guide
for entities that may be affected by this
action. This table lists the types of
entities of which EPA is now aware that
potentially could be affected by this
action. Other types of entities not listed
in the table could also be affected. 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 Everglades
Protection Area, might be affected by
this rule. To determine whether your
facility or activities may be affected by
this action, you should examine this
proposed 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.
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B. How do I get copies of this notice?
Docket. EPA has established an
official public docket for this action
under Docket ID No. EPA–HQ–OW–
2011–0515. The official public docket is
the collection of materials that is
available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC 20460. Although all documents in
the docket are listed in an index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Publicly available docket materials are
available electronically through https://
www.regulations.gov and in hard copy
at the EPA Docket Center Public
Reading Room, 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.
C. What comments will be considered
and what should I consider as I prepare
my comments for EPA?
(1) The public is invited to submit
comments on whether EPA’s proposed
rule is consistent with EPA’s
disapprovals of the Phosphorus Rule
and EFA and the Court’s orders.
(2) The public is invited to submit
comments regarding EPA’s approach of
identifying, through incorporation by
reference, those provisions of the
Phosphorus Rule and EFA that are not
applicable water quality standards for
purposes of the CWA.
(3) Do not submit confidential
business information (CBI) to EPA
through the https://www.regulations.gov
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portal. Contact EPA before submitting
CBI by contacting the person in FOR
FURTHER INFORMATION CONTACT section.
II. Background
EPA is proposing a rule that would
identify provisions of Florida’s Water
Quality Standards for Phosphorus in the
Everglades Protection Area (Phosphorus
Rule) and Florida’s Amended
Everglades Forever Act (EFA) that EPA
has disapproved and that therefore are
not applicable water quality standards
for purposes of the Clean Water Act.
EPA is proposing today’s rule following
its disapproval of these provisions and
EPA’s specific directions to the State of
Florida to correct these deficiencies in
the Phosphorus Rule and EFA. EPA’s
disapproval and specific directions to
the State implement two orders by the
U.S. District Court for the Southern
District of Florida. Pursuant to the
Court’s orders, EPA gave the State a
period of time to correct the
deficiencies. The State has not corrected
the deficiencies within that time period.
Therefore, EPA is proposing today’s
rule. The proposed rule incorporates by
reference two documents that identify
the specific provisions of Florida’s
Phosphorus Rule and EFA that are not
applicable water quality standards for
purposes of the Clean Water Act.
A. Statutory and Regulatory Background
Section 303(c) (33 U.S.C. 1313) of the
Clean Water Act (CWA) directs States,
with oversight by EPA, to adopt water
quality standards to protect the public
health and welfare, enhance the quality
of water and serve the purposes of the
CWA. Under section 303, States are
required to develop water quality
standards for waters of the United States
within the State. Section 303(c) and
EPA’s implementing regulations (40
CFR Part 131) provide that water quality
standards shall include designated uses
of the water and water quality criteria
necessary to protect those uses.
States must submit any new or
revised water quality standards for EPA
review and approval/disapproval. EPA
must approve/disapprove any new or
revised standards within 60–90 days.
(Section 303(c)(3)). If EPA disapproves
any standard, EPA is to specify the
changes to meet the requirements of the
CWA. If the changes are not adopted by
the State, EPA is to promulgate
standards to address the necessary
changes in the State standards that EPA
has disapproved. Today, EPA is
proposing Federal standards to address
the portions of Florida’s standards that
EPA disapproved and that have not
been revised by the State.
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B. Florida’s Phosphorus Rule and
Everglades Forever Act
1. Florida’s Phosphorus Rule
In 2005, the Florida Department of
Environmental Protection (FDEP)
submitted to EPA for review pursuant to
CWA section 303(c), provisions of
Florida Administrative Code (‘‘FAC’’)
62–302.540 entitled ‘‘Water Quality
Standards for Phosphorus Within the
Everglades Protection Area’’
(Phosphorus Rule or Rule). The Rule
established a numeric water quality
criterion for phosphorus as well as
implementing provisions for the
numeric criterion within the Everglades
Protection Area. In 2005 and 2006, EPA
issued a series of decisions approving
certain provisions of the Phosphorus
Rule and concluding that other
provisions were not new or revised
water quality standards and did not
require EPA approval/disapproval
under CWA section 303(c).
2. Florida’s Everglades Forever Act
The Florida Legislature enacted the
Everglades Forever Act in 1994 to
maintain and restore the ecosystem of
the Everglades. See Miccosukee Tribe of
Indians v. United States, 105 F.3d. 599,
601 (11th Cir. 1997). EPA subsequently
reviewed and approved one section of
the EFA (section 4(f)) as a new or
revised water quality standard in 1999.
The Legislature enacted amendments to
the EFA in 2003. EPA reviewed the
amendments and issued a decision in
2003 that the amendments were not new
or revised water quality standards
requiring EPA approval/disapproval
under section 303(c) of the CWA.
C. Litigation and Subsequent EPA
Actions
In consolidated litigation, plaintiffs
challenged (1) EPA’s 2003 decision that
the EFA amendments were not water
quality standards and (2) EPA’s 2005
and 2006 decisions regarding the
Phosphorus Rule. In a July 29, 2008
decision, the U.S. District Court for the
Southern District of Florida upheld in
part and remanded in part EPA’s
decisions. Miccosukee Tribe of Indians
& Friends of the Everglades v. U.S.
Environmental Protection Agency,
Florida Department of Environmental
Protection, et al., No. 04–21488–CIV–
Gold/McAliley (S.D. Fla.). The Court
upheld EPA’s 2005 approval of the
Phosphorus Rule’s numeric phosphorus
criterion and the ‘‘four-part’’ test for
determining attainment of the criterion.
The Court overturned (1) EPA’s decision
that certain implementing provisions of
the Phosphorus Rule were not new or
revised water quality standards and (2)
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EPA’s approval of other provisions of
the Phosphorus Rule finding EPA’s
approval to be arbitrary and capricious.
The Court also rejected EPA’s
determination that the legislative
amendments to the EFA did not
constitute new or revised water quality
standards subject to EPA review (and
approval or disapproval) under section
303(c) of the CWA. The Court remanded
to EPA to take further action consistent
with the Court’s decision.
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1. EPA’s December 2009 Determination
On December 3, 2009, EPA issued a
new Determination in response to the
Court’s remand. Consistent with the
Court’s 2008 decision, EPA disapproved
certain amendments to the EFA. It is
those disapproved provisions of the
EFA that are, in part, the subject of
today’s proposed rulemaking. In
addition, EPA reviewed the provisions
of the Phosphorus Rule that the Court
either found were new or revised
standards or that the Court had held
EPA’s prior approval invalid. Consistent
with the Court’s decision, EPA
disapproved certain provisions of the
Phosphorus Rule and those disapproved
provisions also are the subject of today’s
proposed rulemaking.
2. Court’s April 10, 2010 Order
Plaintiffs challenged EPA’s December
2009 Determination, alleging, in part,
that EPA failed to (1) specify the
changes that Florida must make to the
Phosphorus Rule and EFA to bring them
into compliance with the CWA and (2)
commit to promulgate if the State fails
to act. The Court, in an order dated
April 10, 2010, remanded EPA’s 2009
Determination and ordered EPA to issue
an Amended Determination (AD) by
September 3, 2010. While the Court did
not take issue with EPA’s disapprovals,
the Court nevertheless ordered that
EPA’s AD ‘‘shall specifically direct the
State of Florida to correct deficiencies in
the Amended EFA and Phosphorus Rule
that have been invalidated,’’ attaching
copies of the Rule and EFA with
strikeout markings indicating the exact
language from the Rule and EFA that the
State must correct. Order at 44. The
Court ordered that in the AD, ‘‘EPA
shall require the State of Florida to
commence and complete rule-making
for the Phosphorus Rule within 120
days from the date of the Amended
Determination and shall require
amendments to the Amended EFA to be
enacted by July 1, 2011.’’ Order at 44–
45. The Court further ordered that ‘‘[i]n
the event the State of Florida fails to
timely act, the EPA shall provide timely
notice, and the EPA Administrator
‘‘shall promulgate such standard[s]’’
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pursuant to 33 U.S.C. 1313(c).’’ Order at
45.
3. EPA’s September 3, 2010 Amended
Determination
Consistent with the Court’s April 14,
2010 Order, EPA gave directions to the
State of Florida for correcting
deficiencies in the Phosphorus Rule and
Amended EFA. EPA’s AD included as
attachments copies of the Phosphorus
Rule and EFA with strikeout markings
indicating the language that the State
needed to correct. EPA’s AD stated that
if FDEP has not finalized revisions by
January 1, 2011 and the Legislature has
not enacted amendments to the EFA by
July 1, 2011, EPA would initiate
rulemaking to promulgate standards
consistent with the Court’s Order.
FDEP initiated a rulemaking to adopt
the necessary revisions to the
Phosphorus Rule consistent with EPA’s
AD. However, FDEP did not complete
that process by January 1, 2011. Nor has
FDEP completed its rulemaking process
since that date. The Florida Legislature
also did not introduce or enact any
amendments to the EFA consistent with
EPA’s AD. The Florida Legislature
stands adjourned and is not scheduled
to reconvene prior to July 1, 2011.
Therefore, EPA is proceeding, consistent
with the Court’s Order and EPA’s AD,
to initiate the rulemaking process to
promulgate Federal standards
addressing the deficiencies of the
Phosphorus Rule and EFA.
III. EPA’s Proposal and Solicitation of
Public Comments
EPA’s proposed rule identifies those
provisions in the Phosphorus Rule and
Everglades Forever Act that EPA has
disapproved and that therefore are not
applicable water quality standards for
purposes of the CWA. The provisions
are the ones that EPA previously
disapproved in December 2009 that the
Court identified in its April 2010 Order
and that EPA identified in its September
2010 AD. EPA’s proposed rule
incorporates by reference copies of the
Phosphorus Rule and EFA with the
strikeout markings indicating the
provisions and language that are not
applicable water quality standards for
purposes of the CWA.
For the convenience of persons
reviewing this proposal, EPA has put
copies of the Phosphorus Rule and
Amended Everglades Forever Act in the
docket, with the strikeout markings
indicating the language that EPA
disapproved and that EPA’s proposed
rule identifies as not being applicable
water quality standards for purposes of
the CWA. The provisions of the
Phosphorus Rule and EFA that will not
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be applicable water quality standards
for purposes of the CWA are
summarized in Tables 1 and 2.
The remaining provisions of the
Phosphorus Rule and EFA in the docket
either already have been approved by
EPA as new or revised water quality
standards (i.e., are applicable water
quality standards for the purposes of the
CWA), or are not a water quality
standard subject to EPA review and
approval (or disapproval) under the
Clean Water Act. As explained in the
Statutory and Regulatory Background
(II.A) and in the sections below, EPA is
not proposing to promulgate any of the
remaining provisions that EPA has
approved or that are not water quality
standards.
In the Court’s 2010 order, the judge
struck a provision in the EFA (i.e.,
paragraph 2(l)), which defined the term
‘‘optimization.’’ In today’s action, EPA
is not identifying the strike out
paragraph 2(l) in the EFA or paragraph
3(f) in the Phosphorus Rule because
EPA did not specifically disapprove
either provision in its December 2009
Determination. EPA believes that its
decision not to identify these two
definitions in today’s proposed rule will
not conflict with the objectives of the
Court in its ruling because EPA
disapproved the other provisions in the
EFA and Phosphorus Rule where the
term ‘‘optimization’’ occurs and EPA
has identified those disapproved
provisions in today’s proposed rule.
For the convenience of the reader and
to improve the readability of the
documents, EPA has included a few
minor text changes to the Phosphorus
Rule and Amended Everglades Forever
Act in the docket. These changes are
identified by underline. EPA included
these few text changes in its submission
to the Court and the Court’s April 2011
order reflects these changes. EPA added
text when deletion of the disapproved
language rendered the remaining text
difficult to understand. In EFA section
10 for example, EPA’s added text would
restore language that existed prior to
enactment of EFA amendments. In these
sections, EPA is not proposing to
establish new or revised water quality
standards with these text changes, but
merely to restore language that would
make the remaining text easier to
understand. Similarly, for ease of
readability, the docket versions of the
Phosphorus Rule and Amended
Everglades Forever Act strike the
definitions of ‘‘optimization’’ (which is
defined only for the purposes of other
provisions that EPA disapproved) from
sections 2(l) and 3(f), respectively, as
discussed above.
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38595
TABLE 1—62–302.540 PROVISIONS OF FLORIDA ADMINISTRATIVE CODE (F.A.C.) (WATER QUALITY STANDARDS FOR
PHOSPHORUS WITHIN THE EVERGLADES PROTECTION AREA) THAT ARE NOT APPLICABLE WATER QUALITY STANDARDS FOR PURPOSES OF THE CLEAN WATER ACT
Section
Specific provision or language
(1)(a) ....................................................................
(1)(b)(2) ...............................................................
(2)(b)–(f) ..............................................................
(2)(h) ....................................................................
(2)(l) .....................................................................
(3)(a)–(b) .............................................................
(3)(h) ....................................................................
(4)(d)(2)(c) ...........................................................
Entire paragraph.
Entire paragraph.
Entire paragraphs and subparagraphs.
Entire paragraph.
Entire paragraph.
Entire paragraphs.
Entire paragraph.
Sentence only, ‘‘If these limits are not met, no action shall be required, provided that the net
improvement or hydropattern restoration provisions of subsection (6) below are met.’’
Entire paragraph.
Entire paragraphs.
Entire paragraph.
Entire paragraphs and subparagraphs.
(5)(a) ....................................................................
(5)(b)(2)–(3) .........................................................
(5)(d) ....................................................................
(6)(a)–(c) .............................................................
TABLE 2—PROVISIONS OF THE AMENDED EVERGLADES FOREVER ACT (FLORIDA STATUTE 373.4592) THAT ARE NOT
APPLICABLE WATER QUALITY STANDARDS FOR PURPOSES OF THE CLEAN WATER ACT
Section
Specific provision or language
(2)(a) ....................................................................
(2)(g) ....................................................................
(2)(j) .....................................................................
(2)(p) ....................................................................
(3)(b)–(e) .............................................................
(4)(a) ....................................................................
Entire paragraph.
Sentence 1, phrase ‘‘are further described in the Long-Term Plan’’.
Entire paragraph.
Entire paragraph.
Entire paragraphs.
Sentence 9, phrase ‘‘design, construction, and implementation of the initial phase of the LongTerm Plan, including operation and maintenance, and research for the projects and strategies in the initial phase of the Long-Term Plan, and including’’
Sentence 1, phrase ‘‘however, the district may modify this schedule to incorporate and accelerate enhancements to STA 3⁄4 as directed in the Long-Term Plan’’.
Entire subparagraph.
Sentences 7, 8 and 9.
Sentence 3.
Sentence 1, phrase ‘‘to implement the pre-2006 projects and strategies of the Long-Term
Plan.’’
Sentence 1, phrase ‘‘in all parts of the Everglades Protection Area’’.
Sentence 1, phrase ‘‘and moderating provisions’’.
Entire paragraph.
(4)(a)(4) ...............................................................
(4)(a)(6) ...............................................................
(4)(e)(2) ...............................................................
(4)(e)(3) ...............................................................
(10) ......................................................................
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(10)(a) ..................................................................
EPA believes that its proposal to
incorporate by reference documents that
identify those specific provisions of the
Phosphorus Rule and EFA that are not
applicable water quality standards for
purposes of the CWA best accomplishes
the purpose of removing those
provisions from consideration for future
implementation within CWA programs.
EPA considered other approaches to
accomplish this result and decided the
approach the Agency is proposing today
is the most appropriate approach.
Because the Phosphorus Rule and EFA
are Florida laws, EPA could not
‘‘amend’’ those state laws. EPA
considered whether it should
incorporate the complete Phosphorus
Rule and EFA as Federal regulations
and amend them accordingly. EPA
concluded this approach would not be
appropriate for two reasons.
First, to the extent EPA would be
promulgating as Federal regulations
provisions of state water quality
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standards that EPA has approved (or
provisions associated with approved
water quality standards but that are not
themselves water quality standards), the
CWA does not provide for such action.
The CWA provides that when EPA
approves a new or revised state water
quality standard, ‘‘such standard shall
thereafter be the water quality standard
for the applicable waters of the State.’’
CWA section 303(c)(3). Only if EPA
disapproves a state water quality
standard or makes a determination that
a new or revised water quality standard
is necessary to meet the requirements of
the Clean Water Act under section
303(c)(4)(B) and the state fails to make
the necessary changes, does the Act
direct EPA to promulgate such water
quality standards for navigable waters of
the state. There are many provisions of
the Phosphorus Rule that EPA
approved. EPA did not believe it would
be appropriate to promulgate those
provisions as Federal regulations.
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Second, except for the disapproved
provisions of the EFA amendments,
EPA has not approved or disapproved
the remaining provisions of the EFA
(with one exception) as new or revised
water quality standards under the Clean
Water Act. Therefore, it would not be
appropriate for EPA to promulgate such
provisions as Federal water quality
standards.
For these reasons, EPA concluded the
best approach was to identify, through
incorporation by reference, those
provisions of the Phosphorus Rule and
EFA that EPA disapproved and are
therefore not applicable water quality
standards for purposes of the CWA. EPA
solicits comments on this approach.
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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).
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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
proposed action merely clarifies the
water quality standards concerning the
phosphorus rule and the Amended EFA
statute that are not water quality
standards for purposes of the CWA and
does not impose any information
collection burden 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-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
As a result of the disapproval action
by EPA in December 2009, the Florida
Department of Environmental Protection
already needs to ensure that permits it
issues do not implement the provisions
identified in this rule which are not
applicable water quality standards for
purposes of the CWA. In doing so, the
State will have a number of choices
associated with permit writing. While
Florida’s implementation of the rule
might ultimately result in some new or
revised permit conditions for some
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dischargers, including small entities,
EPA’s action today would not impose
any of these as yet unknown
requirements on small entities. Thus, I
certify that this proposed rule will not
have a significant economic impact on
a substantial number of small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector. This
proposed action merely clarifies the
water quality standards concerning the
phosphorus rule and the Amended EFA
and does not impose any burden on
anyone. 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.
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 proposed
action merely clarifies the water quality
standards concerning the phosphorus
rule and the Amended EFA and does
not apply to any government other than
the State of Florida.
F. Executive Order 13175
This action does not have Tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000) because this is an action in which
the EPA has no discretion, i.e., EPA is
mandated by the Court to take this
action. Thus, Executive Order 13175
does not apply to this action.
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 the
environmental health risks or safety
risks addressed by this action present a
disproportionate risk to children.
PO 00000
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Fmt 4702
Sfmt 4702
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 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 (E.O.) 12898 (59 FR
7629 (Feb. 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. This
action is not subject to E.O. 12898
because this proposed action merely
clarifies the water quality standards
concerning the phosphorus rule and the
Amended EFA.
List of Subjects in 40 CFR Part 131
Environmental protection,
Incorporation by reference, Indians—
lands, Intergovernmental relations,
Reporting and recordkeeping
requirements, Water pollution control.
E:\FR\FM\01JYP1.SGM
01JYP1
Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Proposed Rules
Dated: June 27, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the
preamble, EPA proposes to amend 40
CFR part 131 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—[Amended]
2. Section 131.44 is added to read as
follows:
jlentini on DSK4TPTVN1PROD with PROPOSALS
§ 131.44
Florida.
(a) Phosphorus Rule. The document
entitled ‘‘Corrected Florida
Administrative Code 62–302.540: Water
Quality Standards for Phosphorus
Within the Everglades Protection Area,’’
(Phosphorus Rule) dated April 26, 2011
shall be added to this Subpart through
an incorporation by reference. The
Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a).
Copies of the document may be
inspected and obtained from the docket
associated with this rulemaking (Docket
Number EPA–HQ–OW–2011–0515), at
EPA’s Water Docket (Address: 1301
Constitution Avenue, NW., EPA West,
Room B102, Washington, DC 20460,
telephone number: 202–566–2426), or at
the National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to the following Web site https://
www.archives.gov/federal_register/
code_of_federal_regulations/
ibr_locations.htm. EPA adopts and
identifies the portions of the document
that have strikeout markings as portions
of the Phosphorus Rule that EPA
disapproved on December 3, 2009, and
that are not applicable water quality
standards for the purposes of the Clean
Water Act. Remaining portions of the
Phosphorus Rule that EPA had
previously approved are applicable
water quality standards for the purposes
of the Clean Water Act but are not
codified as Federal water quality
standards.
(b) Amended Everglades Forever Act.
The document entitled ‘‘Corrected
Everglades Forever Act: Florida Statute
373.4592,’’ dated April 26, 2011 shall be
added to this Subpart through an
incorporation by reference. The Director
of the Federal Register approves this
incorporation by reference in
accordance with 5 U.S.C. 552(a). Copies
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16:19 Jun 30, 2011
Jkt 223001
of the document may be inspected and
obtained from the docket associated
with this rulemaking (Docket Number
EPA–HQ–OW–2011–0515), at EPA’s
Water Docket (Address: 1301
Constitution Avenue, NW., EPA West,
Room B102, Washington, DC 20460,
telephone number: 202–566–2426 or at
the National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to the following Web site: https://
www.archives.gov/federal_register/
code_of_federal_regulations/
ibr_locations.html. EPA adopts and
identifies the portions of the document
that have strikeout markings as portions
of the statute that EPA disapproved on
December 3, 2009, and that are not
applicable water quality standards for
the purposes of the Clean Water Act.
Remaining portions of the statute that
EPA had previously approved are
applicable water quality standards for
the purposes of the Clean Water Act but
are not codified as Federal water quality
standards.
[FR Doc. 2011–16616 Filed 6–30–11; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 383 and 390
[Docket No. FMCSA–2011–0146]
Regulatory Guidance: Applicability of
the Federal Motor Carrier Safety
Regulations to Operators of Certain
Farm Vehicles and Off-Road
Agricultural Equipment
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice; extension of public
comment period.
SUMMARY: FMCSA extends the public
comment period for its May 31, 2011,
notice concerning regulatory guidance
on the applicability of the Federal Motor
Carrier Safety Regulations to operators
of certain farm vehicles and off-road
agricultural equipment. The public
comment period is extended from June
30, 2011, to August 1, 2011.
DATES: Comments on the notice must be
received on or before August 1, 2011.
ADDRESSES: You may submit comments
identified by Federal Docket
Management System Number FMCSA–
2011–0146 by any of the following
methods
• Web site: https://
www.regulations.gov. Follow the
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
38597
instructions for submitting comments
on the Federal electronic docket site.
• Fax: 1–202–493–2251.
• Mail: Docket Management Facility;
U.S. Department of Transportation,
Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001.
• Hand Delivery: Ground Floor, Room
W12–140, DOT Building, 1200 New
Jersey Avenue, SE., Washington, DC,
between 9 a.m. and 5 p.m. e.t., Monday
through Friday, except Federal
Holidays.
Instructions: All submissions must
include the Agency name and docket
number. For detailed instructions on
submitting comments and additional
information on the exemption process,
see the ‘‘Public Participation’’ heading
below. Note that all comments received
will be posted without change to
https://www.regulations.gov, including
any personal information provided.
Please see the ‘‘Privacy Act’’ heading
below.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov at any time or to
the ground floor, room W12–140, DOT
Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and
5 p.m., e.t., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone is able to search
the electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s Privacy Act System of
Records Notice for the DOT Federal
Docket Management System published
in the Federal Register on January 17,
2008 (73 FR 3316) or you may visit
https://edocket.access.gpo.gov/2008/pdf/
E8-785.pdf.
Public Participation: The https://
www.regulations.gov Web site is
generally available 24 hours each day,
365 days each year. You can obtain
electronic submission and retrieval help
and guidelines under the ‘‘help’’ section
of the https://www.regulations.gov Web
site and also at the DOT’s https://
docketsinfo.dot.gov Web site. If you
want us to notify you that we received
your comments, please include a selfaddressed, stamped envelope or
postcard or print the acknowledgement
page that appears after submitting
comments online.
FOR FURTHER INFORMATION CONTACT:
Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of
Bus and Truck Standards and
E:\FR\FM\01JYP1.SGM
01JYP1
]]>Agencies
[Federal Register Volume 76, Number 127 (Friday, July 1, 2011)]
[Proposed Rules]
[Pages 38592-38597]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16616]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2011-0515; FRL-9428-3]
Phosphorus Water Quality Standards for Florida Everglades
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing a rule that would identify provisions of
Florida's Water Quality Standards for Phosphorus in the Everglades
Protection Area (Phosphorus Rule) and Florida's Amended Everglades
Forever Act (EFA) that EPA has disapproved and that therefore are not
applicable water quality standards for purposes of the Clean Water Act.
EPA is proposing today's rule following EPA's disapproval of these
provisions and EPA's specific directions to the State of Florida to
correct these deficiencies in the Phosphorus Rule and EFA. EPA's
disapproval, specific directions to the State, and today's proposed
rule implement two orders by the U.S. District Court for the Southern
District of Florida. The intended effect of today's proposed rule is to
identify only those provisions of Florida law that EPA has disapproved
and that therefore are not applicable water quality standards for
purposes of the Clean Water Act.
DATES: Comments must be received on or before August 1, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2011-0515 by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments. This electronic docket is EPA's
preferred method of receiving comments.
Mail: Water Docket, U.S. Environmental Protection Agency,
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, EPA West, Room 3334,
1301 Constitution Ave., NW., Washington, DC. 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-2011-
0515. 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 https://www.regulations.gov or e-mail. The https://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 e-mail comment directly to EPA without
going through https://www.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. For additional instructions on submitting
comments, go to section I.D of the SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket are listed in the https://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 https://www.regulations.gov or in hard copy at the OW Docket Center,
which is open from 8:30 until 4:30 pm, 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: Mario Sengco, Standards and Health
Protection Division, Office of Science and Technology, Mail Code:
4305T, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460; telephone number: (202) 566-2676; e-mail:
sengco.mario@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What entities may be affected by this rule?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging phosphorus to waters upstream
of the Everglades Protection Area could be indirectly affected by the
Phosphorus Rule and EFA, although not specifically by this proposed
rulemaking because the current action further addresses prior
disapproval by EPA of certain provisions of the Phosphorus Rule and
EFA. Any indirect affect to entities would be because the water quality
standards contained in the State's regulation and statute are used in
determining National Pollutant Discharge Elimination System (NPDES)
permit limits. With this in mind, categories and entities that may
ultimately be indirectly affected include:
------------------------------------------------------------------------
Examples of potentially affected
Category entities
------------------------------------------------------------------------
Water Management Districts........ Entities responsible for managing
point source discharges near the
Everglades Protection Area.
Nonpoint Source Contributors...... Entities responsible for
contributing nonpoint source runoff
near the Everglades Protection
Area.
------------------------------------------------------------------------
[[Page 38593]]
This table is not intended to be exhaustive, but rather provides a
guide for entities that may be affected by this action. This table
lists the types of entities of which EPA is now aware that potentially
could be affected by this action. Other types of entities not listed in
the table could also be affected. 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 Everglades Protection Area, might be affected by
this rule. To determine whether your facility or activities may be
affected by this action, you should examine this proposed 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.
B. How do I get copies of this notice?
Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2011-0515. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460.
Although all documents in the docket are listed in an index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Publicly available docket materials are available
electronically through https://www.regulations.gov and in hard copy at
the EPA Docket Center Public Reading Room, 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.
C. What comments will be considered and what should I consider as I
prepare my comments for EPA?
(1) The public is invited to submit comments on whether EPA's
proposed rule is consistent with EPA's disapprovals of the Phosphorus
Rule and EFA and the Court's orders.
(2) The public is invited to submit comments regarding EPA's
approach of identifying, through incorporation by reference, those
provisions of the Phosphorus Rule and EFA that are not applicable water
quality standards for purposes of the CWA.
(3) Do not submit confidential business information (CBI) to EPA
through the https://www.regulations.gov portal. Contact EPA before
submitting CBI by contacting the person in FOR FURTHER INFORMATION
CONTACT section.
II. Background
EPA is proposing a rule that would identify provisions of Florida's
Water Quality Standards for Phosphorus in the Everglades Protection
Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act
(EFA) that EPA has disapproved and that therefore are not applicable
water quality standards for purposes of the Clean Water Act. EPA is
proposing today's rule following its disapproval of these provisions
and EPA's specific directions to the State of Florida to correct these
deficiencies in the Phosphorus Rule and EFA. EPA's disapproval and
specific directions to the State implement two orders by the U.S.
District Court for the Southern District of Florida. Pursuant to the
Court's orders, EPA gave the State a period of time to correct the
deficiencies. The State has not corrected the deficiencies within that
time period. Therefore, EPA is proposing today's rule. The proposed
rule incorporates by reference two documents that identify the specific
provisions of Florida's Phosphorus Rule and EFA that are not applicable
water quality standards for purposes of the Clean Water Act.
A. Statutory and Regulatory Background
Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA)
directs States, with oversight by EPA, to adopt water quality standards
to protect the public health and welfare, enhance the quality of water
and serve the purposes of the CWA. Under section 303, States are
required to develop water quality standards for waters of the United
States within the State. Section 303(c) and EPA's implementing
regulations (40 CFR Part 131) provide that water quality standards
shall include designated uses of the water and water quality criteria
necessary to protect those uses.
States must submit any new or revised water quality standards for
EPA review and approval/disapproval. EPA must approve/disapprove any
new or revised standards within 60-90 days. (Section 303(c)(3)). If EPA
disapproves any standard, EPA is to specify the changes to meet the
requirements of the CWA. If the changes are not adopted by the State,
EPA is to promulgate standards to address the necessary changes in the
State standards that EPA has disapproved. Today, EPA is proposing
Federal standards to address the portions of Florida's standards that
EPA disapproved and that have not been revised by the State.
B. Florida's Phosphorus Rule and Everglades Forever Act
1. Florida's Phosphorus Rule
In 2005, the Florida Department of Environmental Protection (FDEP)
submitted to EPA for review pursuant to CWA section 303(c), provisions
of Florida Administrative Code (``FAC'') 62-302.540 entitled ``Water
Quality Standards for Phosphorus Within the Everglades Protection
Area'' (Phosphorus Rule or Rule). The Rule established a numeric water
quality criterion for phosphorus as well as implementing provisions for
the numeric criterion within the Everglades Protection Area. In 2005
and 2006, EPA issued a series of decisions approving certain provisions
of the Phosphorus Rule and concluding that other provisions were not
new or revised water quality standards and did not require EPA
approval/disapproval under CWA section 303(c).
2. Florida's Everglades Forever Act
The Florida Legislature enacted the Everglades Forever Act in 1994
to maintain and restore the ecosystem of the Everglades. See Miccosukee
Tribe of Indians v. United States, 105 F.3d. 599, 601 (11th Cir. 1997).
EPA subsequently reviewed and approved one section of the EFA (section
4(f)) as a new or revised water quality standard in 1999. The
Legislature enacted amendments to the EFA in 2003. EPA reviewed the
amendments and issued a decision in 2003 that the amendments were not
new or revised water quality standards requiring EPA approval/
disapproval under section 303(c) of the CWA.
C. Litigation and Subsequent EPA Actions
In consolidated litigation, plaintiffs challenged (1) EPA's 2003
decision that the EFA amendments were not water quality standards and
(2) EPA's 2005 and 2006 decisions regarding the Phosphorus Rule. In a
July 29, 2008 decision, the U.S. District Court for the Southern
District of Florida upheld in part and remanded in part EPA's
decisions. Miccosukee Tribe of Indians & Friends of the Everglades v.
U.S. Environmental Protection Agency, Florida Department of
Environmental Protection, et al., No. 04-21488-CIV-Gold/McAliley (S.D.
Fla.). The Court upheld EPA's 2005 approval of the Phosphorus Rule's
numeric phosphorus criterion and the ``four-part'' test for determining
attainment of the criterion. The Court overturned (1) EPA's decision
that certain implementing provisions of the Phosphorus Rule were not
new or revised water quality standards and (2)
[[Page 38594]]
EPA's approval of other provisions of the Phosphorus Rule finding EPA's
approval to be arbitrary and capricious. The Court also rejected EPA's
determination that the legislative amendments to the EFA did not
constitute new or revised water quality standards subject to EPA review
(and approval or disapproval) under section 303(c) of the CWA. The
Court remanded to EPA to take further action consistent with the
Court's decision.
1. EPA's December 2009 Determination
On December 3, 2009, EPA issued a new Determination in response to
the Court's remand. Consistent with the Court's 2008 decision, EPA
disapproved certain amendments to the EFA. It is those disapproved
provisions of the EFA that are, in part, the subject of today's
proposed rulemaking. In addition, EPA reviewed the provisions of the
Phosphorus Rule that the Court either found were new or revised
standards or that the Court had held EPA's prior approval invalid.
Consistent with the Court's decision, EPA disapproved certain
provisions of the Phosphorus Rule and those disapproved provisions also
are the subject of today's proposed rulemaking.
2. Court's April 10, 2010 Order
Plaintiffs challenged EPA's December 2009 Determination, alleging,
in part, that EPA failed to (1) specify the changes that Florida must
make to the Phosphorus Rule and EFA to bring them into compliance with
the CWA and (2) commit to promulgate if the State fails to act. The
Court, in an order dated April 10, 2010, remanded EPA's 2009
Determination and ordered EPA to issue an Amended Determination (AD) by
September 3, 2010. While the Court did not take issue with EPA's
disapprovals, the Court nevertheless ordered that EPA's AD ``shall
specifically direct the State of Florida to correct deficiencies in the
Amended EFA and Phosphorus Rule that have been invalidated,'' attaching
copies of the Rule and EFA with strikeout markings indicating the exact
language from the Rule and EFA that the State must correct. Order at
44. The Court ordered that in the AD, ``EPA shall require the State of
Florida to commence and complete rule-making for the Phosphorus Rule
within 120 days from the date of the Amended Determination and shall
require amendments to the Amended EFA to be enacted by July 1, 2011.''
Order at 44-45. The Court further ordered that ``[i]n the event the
State of Florida fails to timely act, the EPA shall provide timely
notice, and the EPA Administrator ``shall promulgate such standard[s]''
pursuant to 33 U.S.C. 1313(c).'' Order at 45.
3. EPA's September 3, 2010 Amended Determination
Consistent with the Court's April 14, 2010 Order, EPA gave
directions to the State of Florida for correcting deficiencies in the
Phosphorus Rule and Amended EFA. EPA's AD included as attachments
copies of the Phosphorus Rule and EFA with strikeout markings
indicating the language that the State needed to correct. EPA's AD
stated that if FDEP has not finalized revisions by January 1, 2011 and
the Legislature has not enacted amendments to the EFA by July 1, 2011,
EPA would initiate rulemaking to promulgate standards consistent with
the Court's Order.
FDEP initiated a rulemaking to adopt the necessary revisions to the
Phosphorus Rule consistent with EPA's AD. However, FDEP did not
complete that process by January 1, 2011. Nor has FDEP completed its
rulemaking process since that date. The Florida Legislature also did
not introduce or enact any amendments to the EFA consistent with EPA's
AD. The Florida Legislature stands adjourned and is not scheduled to
reconvene prior to July 1, 2011. Therefore, EPA is proceeding,
consistent with the Court's Order and EPA's AD, to initiate the
rulemaking process to promulgate Federal standards addressing the
deficiencies of the Phosphorus Rule and EFA.
III. EPA's Proposal and Solicitation of Public Comments
EPA's proposed rule identifies those provisions in the Phosphorus
Rule and Everglades Forever Act that EPA has disapproved and that
therefore are not applicable water quality standards for purposes of
the CWA. The provisions are the ones that EPA previously disapproved in
December 2009 that the Court identified in its April 2010 Order and
that EPA identified in its September 2010 AD. EPA's proposed rule
incorporates by reference copies of the Phosphorus Rule and EFA with
the strikeout markings indicating the provisions and language that are
not applicable water quality standards for purposes of the CWA.
For the convenience of persons reviewing this proposal, EPA has put
copies of the Phosphorus Rule and Amended Everglades Forever Act in the
docket, with the strikeout markings indicating the language that EPA
disapproved and that EPA's proposed rule identifies as not being
applicable water quality standards for purposes of the CWA. The
provisions of the Phosphorus Rule and EFA that will not be applicable
water quality standards for purposes of the CWA are summarized in
Tables 1 and 2.
The remaining provisions of the Phosphorus Rule and EFA in the
docket either already have been approved by EPA as new or revised water
quality standards (i.e., are applicable water quality standards for the
purposes of the CWA), or are not a water quality standard subject to
EPA review and approval (or disapproval) under the Clean Water Act. As
explained in the Statutory and Regulatory Background (II.A) and in the
sections below, EPA is not proposing to promulgate any of the remaining
provisions that EPA has approved or that are not water quality
standards.
In the Court's 2010 order, the judge struck a provision in the EFA
(i.e., paragraph 2(l)), which defined the term ``optimization.'' In
today's action, EPA is not identifying the strike out paragraph 2(l) in
the EFA or paragraph 3(f) in the Phosphorus Rule because EPA did not
specifically disapprove either provision in its December 2009
Determination. EPA believes that its decision not to identify these two
definitions in today's proposed rule will not conflict with the
objectives of the Court in its ruling because EPA disapproved the other
provisions in the EFA and Phosphorus Rule where the term
``optimization'' occurs and EPA has identified those disapproved
provisions in today's proposed rule.
For the convenience of the reader and to improve the readability of
the documents, EPA has included a few minor text changes to the
Phosphorus Rule and Amended Everglades Forever Act in the docket. These
changes are identified by underline. EPA included these few text
changes in its submission to the Court and the Court's April 2011 order
reflects these changes. EPA added text when deletion of the disapproved
language rendered the remaining text difficult to understand. In EFA
section 10 for example, EPA's added text would restore language that
existed prior to enactment of EFA amendments. In these sections, EPA is
not proposing to establish new or revised water quality standards with
these text changes, but merely to restore language that would make the
remaining text easier to understand. Similarly, for ease of
readability, the docket versions of the Phosphorus Rule and Amended
Everglades Forever Act strike the definitions of ``optimization''
(which is defined only for the purposes of other provisions that EPA
disapproved) from sections 2(l) and 3(f), respectively, as discussed
above.
[[Page 38595]]
Table 1--62-302.540 Provisions of Florida Administrative Code (F.A.C.)
(Water Quality Standards for Phosphorus Within the Everglades Protection
Area) That Are Not Applicable Water Quality Standards for Purposes of
the Clean Water Act
------------------------------------------------------------------------
Section Specific provision or language
------------------------------------------------------------------------
(1)(a)............................ Entire paragraph.
(1)(b)(2)......................... Entire paragraph.
(2)(b)-(f)........................ Entire paragraphs and subparagraphs.
(2)(h)............................ Entire paragraph.
(2)(l)............................ Entire paragraph.
(3)(a)-(b)........................ Entire paragraphs.
(3)(h)............................ Entire paragraph.
(4)(d)(2)(c)...................... Sentence only, ``If these limits are
not met, no action shall be
required, provided that the net
improvement or hydropattern
restoration provisions of
subsection (6) below are met.''
(5)(a)............................ Entire paragraph.
(5)(b)(2)-(3)..................... Entire paragraphs.
(5)(d)............................ Entire paragraph.
(6)(a)-(c)........................ Entire paragraphs and subparagraphs.
------------------------------------------------------------------------
Table 2--Provisions of the Amended Everglades Forever Act (Florida
Statute 373.4592) That Are Not Applicable Water Quality Standards for
Purposes of the Clean Water Act
------------------------------------------------------------------------
Section Specific provision or language
------------------------------------------------------------------------
(2)(a)............................ Entire paragraph.
(2)(g)............................ Sentence 1, phrase ``are further
described in the Long-Term Plan''.
(2)(j)............................ Entire paragraph.
(2)(p)............................ Entire paragraph.
(3)(b)-(e)........................ Entire paragraphs.
(4)(a)............................ Sentence 9, phrase ``design,
construction, and implementation of
the initial phase of the Long-Term
Plan, including operation and
maintenance, and research for the
projects and strategies in the
initial phase of the Long-Term
Plan, and including''
(4)(a)(4)......................... Sentence 1, phrase ``however, the
district may modify this schedule
to incorporate and accelerate
enhancements to STA \3/4\ as
directed in the Long-Term Plan''.
(4)(a)(6)......................... Entire subparagraph.
(4)(e)(2)......................... Sentences 7, 8 and 9.
(4)(e)(3)......................... Sentence 3.
(10).............................. Sentence 1, phrase ``to implement
the pre-2006 projects and
strategies of the Long-Term Plan.''
Sentence 1, phrase ``in all parts of
the Everglades Protection Area''.
Sentence 1, phrase ``and moderating
provisions''.
(10)(a)........................... Entire paragraph.
------------------------------------------------------------------------
EPA believes that its proposal to incorporate by reference
documents that identify those specific provisions of the Phosphorus
Rule and EFA that are not applicable water quality standards for
purposes of the CWA best accomplishes the purpose of removing those
provisions from consideration for future implementation within CWA
programs.
EPA considered other approaches to accomplish this result and
decided the approach the Agency is proposing today is the most
appropriate approach. Because the Phosphorus Rule and EFA are Florida
laws, EPA could not ``amend'' those state laws. EPA considered whether
it should incorporate the complete Phosphorus Rule and EFA as Federal
regulations and amend them accordingly. EPA concluded this approach
would not be appropriate for two reasons.
First, to the extent EPA would be promulgating as Federal
regulations provisions of state water quality standards that EPA has
approved (or provisions associated with approved water quality
standards but that are not themselves water quality standards), the CWA
does not provide for such action. The CWA provides that when EPA
approves a new or revised state water quality standard, ``such standard
shall thereafter be the water quality standard for the applicable
waters of the State.'' CWA section 303(c)(3). Only if EPA disapproves a
state water quality standard or makes a determination that a new or
revised water quality standard is necessary to meet the requirements of
the Clean Water Act under section 303(c)(4)(B) and the state fails to
make the necessary changes, does the Act direct EPA to promulgate such
water quality standards for navigable waters of the state. There are
many provisions of the Phosphorus Rule that EPA approved. EPA did not
believe it would be appropriate to promulgate those provisions as
Federal regulations.
Second, except for the disapproved provisions of the EFA
amendments, EPA has not approved or disapproved the remaining
provisions of the EFA (with one exception) as new or revised water
quality standards under the Clean Water Act. Therefore, it would not be
appropriate for EPA to promulgate such provisions as Federal water
quality standards.
For these reasons, EPA concluded the best approach was to identify,
through incorporation by reference, those provisions of the Phosphorus
Rule and EFA that EPA disapproved and are therefore not applicable
water quality standards for purposes of the CWA. EPA solicits comments
on this approach.
[[Page 38596]]
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 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 proposed action merely
clarifies the water quality standards concerning the phosphorus rule
and the Amended EFA statute that are not water quality standards for
purposes of the CWA and does not impose any information collection
burden 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.
As a result of the disapproval action by EPA in December 2009, the
Florida Department of Environmental Protection already needs to ensure
that permits it issues do not implement the provisions identified in
this rule which are not applicable water quality standards for purposes
of the CWA. In doing so, the State will have a number of choices
associated with permit writing. While Florida's implementation of the
rule might ultimately result in some new or revised permit conditions
for some dischargers, including small entities, EPA's action today
would not impose any of these as yet unknown requirements on small
entities. Thus, I certify that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector. This proposed action merely clarifies the water quality
standards concerning the phosphorus rule and the Amended EFA and does
not impose any burden on anyone. 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.
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 proposed action merely
clarifies the water quality standards concerning the phosphorus rule
and the Amended EFA and does not apply to any government other than the
State of Florida.
F. Executive Order 13175
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000) because this is
an action in which the EPA has no discretion, i.e., EPA is mandated by
the Court to take this action. Thus, Executive Order 13175 does not
apply to this action.
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 the environmental health risks
or safety risks addressed by this action present a disproportionate
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 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 (E.O.) 12898 (59 FR 7629 (Feb. 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. This
action is not subject to E.O. 12898 because this proposed action merely
clarifies the water quality standards concerning the phosphorus rule
and the Amended EFA.
List of Subjects in 40 CFR Part 131
Environmental protection, Incorporation by reference, Indians--
lands, Intergovernmental relations, Reporting and recordkeeping
requirements, Water pollution control.
[[Page 38597]]
Dated: June 27, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 131 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--[Amended]
2. Section 131.44 is added to read as follows:
Sec. 131.44 Florida.
(a) Phosphorus Rule. The document entitled ``Corrected Florida
Administrative Code 62-302.540: Water Quality Standards for Phosphorus
Within the Everglades Protection Area,'' (Phosphorus Rule) dated April
26, 2011 shall be added to this Subpart through an incorporation by
reference. The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U.S.C. 552(a). Copies
of the document may be inspected and obtained from the docket
associated with this rulemaking (Docket Number EPA-HQ-OW-2011-0515), at
EPA's Water Docket (Address: 1301 Constitution Avenue, NW., EPA West,
Room B102, Washington, DC 20460, telephone number: 202-566-2426), or at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to the following Web site https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts
and identifies the portions of the document that have strikeout
markings as portions of the Phosphorus Rule that EPA disapproved on
December 3, 2009, and that are not applicable water quality standards
for the purposes of the Clean Water Act. Remaining portions of the
Phosphorus Rule that EPA had previously approved are applicable water
quality standards for the purposes of the Clean Water Act but are not
codified as Federal water quality standards.
(b) Amended Everglades Forever Act. The document entitled
``Corrected Everglades Forever Act: Florida Statute 373.4592,'' dated
April 26, 2011 shall be added to this Subpart through an incorporation
by reference. The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U.S.C. 552(a). Copies
of the document may be inspected and obtained from the docket
associated with this rulemaking (Docket Number EPA-HQ-OW-2011-0515), at
EPA's Water Docket (Address: 1301 Constitution Avenue, NW., EPA West,
Room B102, Washington, DC 20460, telephone number: 202-566-2426 or at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to the following Web site: https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
EPA adopts and identifies the portions of the document that have
strikeout markings as portions of the statute that EPA disapproved on
December 3, 2009, and that are not applicable water quality standards
for the purposes of the Clean Water Act. Remaining portions of the
statute that EPA had previously approved are applicable water quality
standards for the purposes of the Clean Water Act but are not codified
as Federal water quality standards.
[FR Doc. 2011-16616 Filed 6-30-11; 8:45 am]
BILLING CODE 6560-50-P
