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Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 27, 2002 (Volume 67, Number 249)]
[Proposed Rules]
[Page 79020-79028]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de02-37]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 130
[WH-FRL-7430-5]
Withdrawal of Revisions to the Water Quality Planning and
Management Regulation and Revisions to the National Pollutant Discharge
Elimination System Program in Support of Revisions to the Water Quality
Planning and Management Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: Today's action proposes to withdraw the final rule entitled
``Revisions to the Water Quality Planning and Management Regulation and
Revisions to the National Pollutant Discharge Elimination System
Program in Support of Revisions to the Water Quality Planning and
Management Regulation (``the July 2000 rule'') published in the Federal
Register on July 13, 2000. The July 2000 rule amended and clarified
existing regulations implementing a section of the Clean Water Act
(CWA), which requires States to identify waters that are not meeting
applicable water quality standards and to establish pollutant budgets,
called Total Maximum Daily Loads (TMDLs), to restore the quality of
those waters. The July 2000 rule also amended EPA's National Pollutant
Discharge Elimination System (``NPDES'') regulations to include
provisions addressing implementation of TMDLs through NPDES permits.
The July 2000 rule has never become effective; it is currently
scheduled to take effect on April 30, 2003. Regulations that EPA
promulgated in 1985 and amended in 1992 remain the regulations in
effect for implementing the TMDL Program. Today, EPA is proposing to
withdraw the July 2000 rule, rather than allow it to go into effect or
again propose to extend its effective date. EPA believes that
significant changes would need to be made to the July 2000 rule before
it could serve as the blueprint for an efficient and effective TMDL
Program. Furthermore, EPA needs additional time beyond April 2003 to
decide whether and how to revise the currently-effective regulations
implementing the TMDL Program in a way that will best achieve the goals
of the CWA.
DATES: Written comments on this proposed rule should be submitted by
January 27, 2003. Comments provided electronically will be considered
timely
[[Page 79021]]
if they are submitted by 11:59 p.m. January 27, 2003.
ADDRESSES: Comments may be submitted electronically, by mail, or
through hand delivery/courier. Follow the detailed instructions as
provided in section C, regarding Additional Information for Commenters
of the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For information about today's
proposal, contact: Francoise M. Brasier, U.S. EPA Office of Wetlands,
Oceans and Watersheds (4503T), U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone (202) 566-
2385.
SUPPLEMENTARY INFORMATION:
A. Authority
Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303,
305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g),
1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362,
and 1373.
B. Entities Potentially Regulated by the Proposed Rule
Table of Potentially Regulated Entities
------------------------------------------------------------------------
Examples of potentially
Category regulated entities
------------------------------------------------------------------------
Governments............................... States, Territories and
Tribes with CWA
responsibilities.
------------------------------------------------------------------------
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 regulated by this action. Other types of entities
not listed in this table could also be regulated. To determine whether
you may be regulated by this action, you should carefully examine the
applicability criteria in Sec. 130.20 of title 40 of the Code of
Federal Regulations. If you have any questions regarding the
applicability of this action to you, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
C. Additional Information for Commenters
1. How Can I Get Copies of This Document and Other Related Information
?
a. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2002-0037. 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 B-102,
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center
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 access to docket materials, please call
ahead to schedule an appointment. A reasonable fee may be charged for
copying.
b. Electronic Access. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket to
submit or view public comments, access the index listing of the
contents of the official public docket, and to access those documents
in the public docket that are available electronically. Once in the
system, select ``search,'' then key in the appropriate docket
identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in the preceding section C.1.a.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
2. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comments. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments. Commenters who want EPA to
acknowledge receipt of their comments should include a self-addressed,
stamped envelope.
a. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
and follow the online instructions for submitting comments.
Once in the system, select ``search,'' and then key in Docket ID No.
OW-2002-0037. The system is an ``anonymous access'' system, which means
EPA will not
[[Page 79022]]
know your identity, e-mail address, or other contact information unless
you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to ow-
docket@epa.gov., Attention Docket ID No. OW-2002-0037. Electronic
comments must be submitted as a WordPerfect 5.1, 6.1, or 8 file or as
an ASCII file, avoiding the use of special characters. Electronic
comments on this action may be filed on line at many Federal Depository
Libraries. In contrast to EPA's electronic public docket, EPA's e-mail
system is not an ``anonymous access'' system. If you send an e-mail
comment directly to the Docket without going through EPA's electronic
public docket, EPA's e-mail system automatically captures your e-mail
address. E-mail addresses that are automatically captured by EPA's e-
mail system are included as part of the comment that is placed in the
official public docket, and made available in EPA's electronic public
docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section C.2.b.,
which follows. These electronic submissions will be accepted in
WordPerfect 5.1, 6.1 or 8 file or an ASCII file format. Avoid the use
of special characters and any form of encryption.
b. By Mail. Send an original and three copies of your comments and
enclosures (including references) to: Water Docket, Environmental
Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW.,
Washington, DC, 20460, Attention Docket ID No. OW-2002-0037.
c. By Hand Delivery or Courier. Deliver your comments to: the Water
Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301
Constitution Ave., NW., Washington, DC, Attention Docket ID No. OW-
2002-0037. Such deliveries are only accepted during the Docket's normal
hours of operation from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays as identified in section C.1.a.
d. By Facsimile. No facsimiles (faxes) will be accepted.
3. How Should I Submit CBI To the Agency?
Do not submit information through EPA's electronic public docket or
by e-mail that you consider to be CBI. You may claim information that
you submit to EPA as CBI by marking any part or all of that information
as CBI. (If you submit CBI on disk or CD ROM, 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 CBI). Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
In addition to one complete version of the comment that includes
any 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 and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
4. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
? Explain your views as clearly as possible.
? Describe any assumptions that you used.
? Provide any technical information and/or data you used that
support your views.
? If you estimate potential burden or costs, explain how you
arrived at your estimate.
? Provide specific examples to illustrate your concerns.
? Offer alternatives.
? Make sure to submit your comments by the comment period
deadline identified.
? To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page of
your response. It would also be helpful if you provided the name, date,
and Federal Register citation related to your comments.
I. Basis for Today's Action and Request for Comment
A. What Is the Statutory and Regulatory Background for Today's Action?
TMDLs are one of the many tools Congress authorized in the CWA to
help achieve the Act's main objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
(CWA section 101(a)). Section 303(d) of the CWA requires States to
identify and establish a priority ranking for waters for which
technology-based effluent limitations required by section 301 are not
stringent enough to implement applicable water quality standards,
establish TMDLs for the pollutants causing impairment in those waters,
and submit to EPA, from time to time, the list of impaired waters and
TMDLs. EPA must review and approve or disapprove lists and TMDLs within
30 days of the time they are submitted. If EPA disapproves a list or a
TMDL, EPA must establish the list or TMDL. In addition, some courts
have interpreted the statute as requiring EPA to establish lists and
TMDLs when a State fails to do so.
Listing impaired waters and establishing TMDLs for waters impaired
by pollutants from point and nonpoint sources does not, by itself,
create any new or additional implementation authorities to control
point or nonpoint sources. Section 303(d) of the Act requires that
TMDLs ``be established at a level necessary to implement the applicable
water quality standards,'' and section 303(d)(2) requires a State to
incorporate TMDLs into its ``current plan'' under section 303(e). Under
the section 303(e) process, States develop and update state-wide water
quality management (WQM) plans, produced in accordance with sections
208 and 303(e) of the Act, to direct implementation of the requirements
of the Act.
Under CWA section 402, the NPDES Program regulates the ``discharge
of a pollutant,'' other than dredged or fill materials from a ``point
source'' into ``waters of the United States.'' The CWA and NPDES
regulations define ``discharge of a pollutant,'' ``point source,'' and
``waters of the United States.'' The NPDES Program is administered at
the Federal level by EPA unless a State, tribe or U.S. Territory
assumes the program after receiving approval by the Federal government.
Currently, 45 States have received approval to administer the NPDES
Program in their States. Under section 402, discharges of pollutants to
waters of the United States are authorized by an individual NPDES
permit or a general permit applicable to multiple similar facilities or
activities. NPDES permits commonly contain numerical limits on the
amounts of specified pollutants that may be discharged and may specify
best management practices (BMPs) designed to minimize water quality
impacts. These numerical effluent limitations and BMPs or other non-
numerical effluent limitations implement both technology-based and
water quality-based requirements of the Act. Technology-based
limitations represent the degree of control that can be achieved by
point sources using various levels of pollution control technology. If
[[Page 79023]]
necessary to achieve or maintain compliance with applicable water
quality standards, NPDES permits must contain water quality-based
limitations more stringent than the applicable technology-based
requirements. One basis for water quality-based effluent limits in
NPDES permits is a wasteload allocation from a TMDL. See 40 CFR
122.44(d)(1)(vii). The NPDES Program regulations appear at 40 CFR parts
122-125.
EPA issued regulations governing identification of impaired waters
and establishment of TMDLs in 1985 and revised them in 1992 (Sec. Sec.
130.2 and 130.7). Among other things, these currently effective
regulations provide that:
? States must identify those waters still requiring TMDLs
because technology-based effluent limitations required by the CWA or
more stringent effluent limitations and other pollution controls (e.g.,
management measures) required by local, State, or Federal authority are
not stringent enough to implement applicable water quality standards
(WQS) (Sec. 130.7(b)(1));
? These lists of waters not meeting WQS must be submitted to
EPA every two years (on April 1 of every even-numbered year) (Sec.
130.7(d)(1));
? The lists must include an identification of the pollutant
or pollutants causing or expected to cause the impairment, and a
priority ranking of the waters that identifies the waters targeted for
TMDL development in the next two years (Sec. 130.7(b)(4));
? States, in developing lists, must assemble and evaluate all
existing and readily available water quality-related data and
information (Sec. 130.7(b)(5));
? States must submit with each list a description of the
methodology used to develop the list and provide EPA with a rationale
for any decision not to use any existing and readily available water
quality-related data and information (Sec. 130.7(b)(6));
? A TMDL is the sum of individual wasteload allocations for
point sources (WLA), load allocations for nonpoint sources and natural
background (LA). Wasteload allocations are defined as the portion of a
receiving water's loading capacity that is allocated to one of its
point sources of pollution. (Sec. 130.2 (h) and (i));
? Load allocations are defined as the portion of a receiving
water's loading capacity that is attributed to nonpoint sources of
pollution or natural background. They are best estimates of the
loading, which can range from reasonably accurate estimates to gross
allotments. Where possible, natural, background and nonpoint source
loads should be distinguished (Sec. 130.2(g));
? TMDLs must be established at levels necessary to attain and
maintain the applicable narrative and numerical water quality standards
with seasonal variations and a margin of safety that takes into account
any lack of knowledge concerning the relationship between effluent
limitations and water quality (Sec. 130.7(c)(1));
? If best management practices (BMPs) or other nonpoint
source pollution controls make more stringent load allocations
practicable, the wasteload allocations can be made less stringent
allowing for nonpoint source control tradeoffs (Sec. 130.2(i));
? EPA must approve or disapprove lists and TMDLs within 30
days of submission. If disapproved, EPA must establish a list or a TMDL
within 30 days (Sec. 130.7(d)(2));
? The process for involving the public in the development of
lists of impaired waters and TMDLs must be described in the State's
Continuing Planning Process (CPP) (Sec. 130.7(a));
? Under proper technical conditions, TMDLs can be calculated
for all pollutants (43 FR 60665).
The 1985 regulation also identifies specific elements that comprise
the WQM plan, including the ``identification of implementation measures
necessary to carry out the plan, including financing, the time needed
to carry out the plan, and the economic, social and environmental
impact of carrying out the plan in accordance with section
208(b)(2)(E)'' (Sec. 130.6(c)(6)). Once approved by EPA, TMDLs are
incorporated into these State WQM plans (Sec. 130.7(d)(2)). Permitting
authorities implement wasteload allocations included in a TMDL through
enforceable water quality-based discharge limits in NPDES permits
authorized under section 402 of the CWA. The primary mechanism for
implementing nonpoint source load allocations within TMDLs is through
the State section 319 nonpoint source management program, coupled with
a wide variety of other State, local, tribal, and Federal programs
(which may be regulatory, non-regulatory, or incentive-based, depending
on the program), as well as voluntary action by committed citizens.
B. Why Did EPA Promulgate the July 2000 Rule?
On July 13, 2000, EPA published a final rule revising the TMDL
regulations previously promulgated in 1985 and revised in 1992 (65 FR
43586). In 1996, the Agency determined that there was a need for a
comprehensive evaluation of implementation of section 303(d)
requirements. The reasons for this need were threefold. First, EPA was
concerned with the lack of progress in the program despite the
regulations issued by EPA in 1985 and 1992, and a series of policy
memoranda including a 1997 request that States work to improve the rate
of establishing TMDLs. Second, stakeholders had raised concerns with
the lack of clarity and consistency in the program. Third,
environmental and public interest organizations had started filing
lawsuits alleging that EPA should be held accountable, under the CWA,
for its failure to oversee and supplement inadequate State 303(d)
listing and TMDL establishment efforts.
EPA convened a committee under the Federal Advisory Committee Act
(TMDL FACA Committee) to undertake such an evaluation and make
recommendations for improving implementation of the TMDL Program,
including recommendations for revised regulations and guidance. In
1998, after careful deliberation, the Committee submitted to EPA its
final report containing more than 100 recommendations, a subset of
which required regulatory changes (Report of the Federal Advisory
Committee on the Total Maximum Daily Load (TMDL) Program. EPA 100-R-98-
006, July 1998). The committee reached consensus on most
recommendations although minority reports were filed on some issues.
These recommendations guided EPA in the development of the proposed
rule of August 23, 1999, (64 FR 46012) and the final rule of July 13,
2000 (65 FR 43586). EPA proposed changes intended to resolve issues
concerning the identification of impaired waterbodies by promoting more
comprehensive inventories of impaired waters. The rule was also
intended to improve implementation of TMDLs by requiring, as part of
the TMDL, implementation plans containing lists of actions and
expeditious schedules to reduce pollutant loadings. Finally, EPA
proposed changes to the NPDES permitting regulations to assist in
implementing TMDLs and to better address point source discharges to
waters not meeting water quality standards prior to establishment of a
TMDL.
C. Why Did EPA Undertake a Further Review of the TMDL Regulations and
Delay the Effective Date of the July 2000 Rule?
The July 2000 rule was controversial from the outset. The August
1999 proposal attracted approximately 34,000
[[Page 79024]]
comments, a significant number of which criticized various aspects of
the proposed rule. Before and after promulgation, the rule generated
considerable controversy, as expressed in Congressional action,
letters, testimony, public meetings, and litigation. Even before it was
published in the Federal Register, Congress prohibited EPA from
implementing the final rule through a spending prohibition included in
the Military Construction Appropriations Act: FY 2000 Supplemental
Appropriations (Pub. L. 106-426). This provision prohibited EPA from
using funds made available for fiscal years 2000 and 2001 ``to make a
final determination on or implement'' the July 2000 TMDL rule.
Anticipating that this amendment would go into effect, the July 2000
rule provided that the effective date of the regulations would be 30
days after the date that Congress allowed EPA to implement the
regulations. The spending prohibition was scheduled to expire on
September 30, 2001, and, barring further action by Congress or EPA, the
rule would have gone into effect 30 days later on October 30, 2001.
Additionally, in the FY 2001 Appropriations Bill, Congress directed EPA
to contract with the National Academy of Sciences' National Research
Council (NRC) to evaluate the adequacy of scientific methods and
approaches currently available to support development and
implementation of TMDLs. In the Conference Report #106-988
describing the VA/HUD and Independent Agencies FY 2001 Appropriations
Act, Congress also requested that the Agency prepare a comprehensive
assessment of the development and implementation costs of the TMDL
Program.
States, business and industry groups, agriculture and forestry
organizations, and local governments questioned the scope, complexity,
and cost of, and the legal authority for, many of the new provisions of
the rule. Environmental groups expressed concern that the rule did not
do enough to address water quality impairments from nonpoint sources,
and argued that the new schedules in the rule unlawfully extend CWA
deadlines. Stakeholder concerns were reflected in legal challenges to
the July 2000 rule by a broad array of litigants. Ten petitions for
review were filed by States, industrial and agricultural groups, and
environmental organizations asserting that many of EPA's revisions to
the TMDL regulations were either unlawful under the Administrative
Procedure Act or exceeded the Agency's authority under the CWA. These
petitions, which identified more than fifty alleged legal defects in
the July 2000 rule, were ultimately consolidated in the American Farm
Bureau Federation et al v. Whitman (No. 00-1320) for the District of
Columbia Circuit United States Court of Appeals. In addition, several
other stakeholders have intervened in these lawsuits. Some of the
issues raised by the petitioners include the scope and content of the
section 303(d) list, the elements of an approvable TMDL, scheduling and
EPA backstopping of TMDLs, and the change to the NPDES regulations
addressing EPA's authority to object to expired State permits. The
litigation over the July 2000 rule is currently stayed pending EPA's
determination regarding whether, and to what extent, that rule should
be revised.
Because of these significant concerns, EPA, on August 9, 2001,
proposed to delay the effective date of the July 2000 rule by 18 months
(66 FR 41817) until April 30, 2003, to allow time for reconsideration
of specific aspects of the rule. EPA stated that it intended to use the
time to analyze the findings and recommendations of the NRC report; to
discuss ideas for improving the TMDL Program with a broad array of
interested parties; and, if deemed appropriate, to revise the
regulations through a notice and comment process. The Agency believed
that an 18-month delay of the July 2000 rule's effective date was the
minimum time necessary to conduct a meaningful consultation process,
analyze and reconcile the recommendations of the various stakeholders
and promulgate desired program changes. In the same notice EPA proposed
to revise from April 1, 2002, until October 1, 2002, the date by which
States are required to submit their 303(d) lists of impaired waters for
2002. Following receipt and evaluation of comments, on October 18,
2001, EPA published in the Federal Register a final rule delaying for
18 months, until April 30, 2003, the effective date of the July 2000
rule and delaying until October 1, 2002, the due date for the States'
2002 submission of section 303(d) lists of impaired waters (66 FR
53044).
As part of the effort to solicit additional input on the TMDL
Program, EPA published a notice in the Federal Register announcing the
dates, locations and discussion themes for five ``public listening
sessions'' addressing the Agency's TMDL Program and possible revisions
to the TMDL rule (66 FR 51429). EPA announced that it would use the
information received at these public listening sessions as it
considered changes to the regulations that implement the TMDL Program
and related provisions in the NPDES Program. These listening sessions
were held in the following cities, each with a primary focus on a
specific theme:
? Chicago, Illinois (Oct. 22-23, 2001): ``Implementation of
TMDLs Addressing Nonpoint Sources.''
? Sacramento, California (Nov. 1-2, 2001): ``Scope and
Content of TMDLs.''
? Atlanta, Georgia (Nov. 7-8, 2001): ``EPA's Role, the Pace/
Schedule for Development of TMDLs, and NPDES Permitting Pre and Post
TMDL.''
? Oklahoma City, Oklahoma (Nov. 15-16, 2001): ``Listing
Impaired Waters.''
? Washington DC (Dec. 11, 2001): ``Comprehensive Discussion
of All Listing and TMDL Issues.''
Nearly 1,000 people attended the five meetings. At each meeting
attendees, representing a broad cross-section of stakeholder interests,
heard presentations from EPA representatives and other members of the
meeting's ``listening panel,'' and participated in facilitated small-
group discussions focused on the meeting's overall theme and the
specific discussion questions. The meetings provided participants an
opportunity to exchange ideas with various stakeholder groups,
including representatives from petitioners and interveners in
litigation, and members of the public. EPA has published detailed
summaries on its website of all the listening sessions, including oral
and written comments from each meeting as well as letters received
afterwards. (http://www.epa.gov/owow/tmdl/meetings). These meetings
demonstrated that there continued to be a wide divergence of opinion
regarding whether and how the Agency should revise the implementing
regulations for the TMDL and NPDES Programs.
Subsequent to the public listening sessions, EPA met individually
with numerous public and private stakeholder groups to solicit
additional input on how best to modify the TMDL and NPDES regulations.
These stakeholder groups represented a broad array of interested
parties, and included the following: The Association of State and
Interstate Water Pollution Control Administrators; Environmental
Council of States; Western Governors' Association; Clean Water
Coalition; Clean Water Network; Advisory Council on Water Information;
Interstate Commission on Water Policy; Association of Metropolitan
Sewerage Agencies; Water Environment Federation; American Chemical
Council; American Farm Bureau; Earthjustice Legal Defense Fund; Ocean
Conservancy; Natural Resources Defense Council; and TMDL rule
petitioners.
[[Page 79025]]
Between August 2001 and April 2002, EPA also attended periodic meetings
with the United States Department of Agriculture (USDA) to solicit
input on ways to improve the TMDL Program and to discuss approaches to
taking advantage of USDA and State planning processes to support
watershed-based TMDLs. EPA formed an internal EPA workgroup in October
2001 to begin evaluating the future direction and scope of the TMDL
Program. Draft concepts developed by the workgroup have been shared
with stakeholder groups, and the workgroup has developed a draft
proposal that would amend the regulations at 40 CFR part 130 as well as
some NPDES Program provisions.
D. Why Is EPA Proposing To Withdraw the July 2000 TMDL Rule?
Despite the efforts described above, the Agency needs more time to
evaluate whether and how to revise the currently-effective regulations.
At this point, EPA is not sure how long that effort will take. However,
EPA believes that continuing to examine the regulatory needs of the
TMDL and NPDES Programs when faced with the impending April 30, 2003,
effective date for the July 2000 rule sends confusing signals to the
States and other interested parties about which set of rules they
should be prepared to implement. Due to the significant controversy,
pending litigation and lack of stakeholder consensus on key aspects of
the July 2000 rule, it has become apparent to EPA that, as promulgated,
the July 2000 rule cannot function as the blueprint for an efficient
and effective TMDL Program without significant revisions. Moreover, the
existence of the approaching April 30, 2003, effective date for the
July 2000 rule--a mere four months away--is beginning to act as an
unnecessary and artificial distraction from an orderly completion of
the Agency's efforts now underway to chart the future direction and
scope of the TMDL Program. Consequently, EPA is proposing to withdraw
the July 2000 TMDL rule so that the Agency can consider whether and how
to revise the TMDL rules without concern that those efforts will be
adversely affected by the July 2000 rule's effective date.
Withdrawal of the July 2000 rule will not adversely affect the
increasing momentum of State TMDL Programs across the country. Should
EPA ultimately decide to withdraw the July 2000 rule, the effect of
such a withdrawal would be that the TMDL Program would continue to
operate under the rules promulgated in 1985, as amended in 1992, at 40
CFR part 130. Thus, there would be no gap in regulatory coverage.
Indeed, States would continue to establish lists of impaired waters and
TMDLs according to the currently-effective regulations. Pursuant to
these rules, States were required to submit new lists of impaired
waters by October 1, 2002, and as described in section A above, these
currently effective rules provide a comprehensive set of requirements
for the identification of impaired waters, establishment of TMDLs and
incorporation of TMDLs into State water quality management plans.
One impetus for the July 2000 rule was concern that States were not
making enough progress in listing impaired waters, and scheduling,
developing and implementing TMDLs. However, since 1996, when EPA
established a Federal Advisory Committee to provide recommendations for
revisions to the TMDL regulations, there have been many non-regulatory
improvements to the TMDL Program that have resulted in States
increasing the quality of their section 303(d) lists and greatly
accelerating the pace of their TMDL development. States and EPA are
continuing to establish TMDLs in accordance with schedules agreed upon
between the States and EPA as well as in accordance with court orders
and consent decrees (this is discussed in greater detail, below). The
Agency has also increased outreach to States and issued TMDL technical
guidance, monitoring guidance, and CWA section 319 nonpoint source
guidance to help States develop better methods to more accurately and
consistently monitor and list impaired waters, establish TMDLs, and
identify the most appropriate and cost-effective methods and approaches
to implement the TMDL Program. This outreach and guidance has taken the
form of detailed policy memoranda, national guidance documents,
technical protocol documents for developing pollutant-specific TMDLs,
and information on best management practices for controlling nonpoint
sources. A complete list of these documents can be found at EPA's
website: http://oaspub.epa.gov/waters/national_rept.control. Key
policy documents include: ``New Policies for Establishing and
Implementing Total Maximum Daily Loads (TMDLs)'', August 8, 1997;
``Guidance: Use of Fish and Shellfish Advisories and Classifications in
303(d) and 305(b) Listing Decisions''--Oct. 24, 2000; ``Supplemental
Guidelines for the Award of Section 319 Nonpoint Source Grants to
States and Territories in FY 2002 and Subsequent Years''--September 5,
2001; ``2002 Integrated Water Quality Monitoring and Assessment Report
Guidance''--November 19, 2001; `` Proposed Water Quality Trading
Policy''--May 15, 2002; (http://www.epa.gov/owow/watershed/trading/
tradingpolicy.html); and ``EPA Review of 2002 Section 303(d) Lists and
Guidelines for Reviewing TMDLs under Existing Regulations issued in
1992''--May 20, 2002.
States are the primary entities responsible for developing and
implementing TMDLs under the CWA and EPA recognizes the financial
burden faced by States in this effort. From FY 1999 to 2002, EPA has
provided the States almost $30 million for TMDL-specific activities,
including section 303(d) list development, water quality assessments/
screening, and pollutant modeling support. States have used this
funding to secure technical support through contracts and through
grants to universities and not-for-profit organizations and
institutions. The Agency also allowed the use of a portion of State
grants for water program administration (CWA section 106 grants) and
nonpoint source programs (CWA section 319 grants) for developing and
implementing TMDLs. The guidelines for use of the section 319 funds
recommend focusing incremental 319 grant dollars ($100 million) on
implementing on-the-ground measures and practices that would reduce
pollutant loads in accordance with approved TMDLs for waters that are
impaired in whole or in part by nonpoint sources. In addition, since
1998 the Agency has spent more than $11 million to support development
of technical guidance for developing TMDLs and identifying the most
appropriate and efficient best management practices for nonpoint
sources.
Helped by these programmatic initiatives, States have made
considerable progress in developing TMDLs. Moreover, mechanisms are in
place to ensure that those efforts do not diminish. Currently, there
are 22 States in which EPA is under court order, generally resulting
from entry of a consent decree, to establish TMDLs if States do not do
so. Twelve consent decrees have been entered since 1999, the year the
July 2000 TMDL rule revisions were proposed. Between 1996 and 1999, EPA
and the States established approximately 800 TMDLs. Since then, and
despite the fact that the July 2000 rule never became effective, EPA
and the States have established more than an additional 7,000 TMDLs;
and they continue to improve the pace at which TMDLs are established.
Given
[[Page 79026]]
this progress and the States' adoption since 1998 of schedules for TMDL
development, EPA anticipates no reduction in the pace of TMDLs being
developed even if the July 2000 rule does not take effect.
Another aim of the July 2000 rule was to promote more comprehensive
State inventories of impaired waters. Under authority of the rules
promulgated in 1985 and 1992, EPA issued the 2002 Integrated Water
Quality Monitoring and Assessment Report Guidance (November 19, 2001)
to promote a more integrated and comprehensive system of accounting for
the nation's water quality attainment status. The guidance recommends
that States submit an ``Integrated Report'' that will satisfy CWA
requirements for both section 305(b) water quality reports and section
303(d) lists. The objectives of this guidance are to strengthen State
monitoring programs, encourage timely monitoring to support decision
making, increase numbers of waters monitored, and provide a full
accounting of all waters and uses. The guidance encourages a rotating
basin approach, and strengthened State assessment methodologies, and is
intended to improve public confidence in water quality assessments and
303(d) lists. EPA extended the date for submission of 2002 lists by six
months (66 FR 53044) to allow States and Territories time to
incorporate some or all of the recommendations suggested by EPA in this
2002 Integrated Water Quality Monitoring and Assessment Report
Guidance. At this time, most States and Territories have submitted a
2002 report which incorporates some or all of the elements of the
guidance. In addition to releasing the Integrated Reporting Guidance,
EPA also held five stakeholder meetings in 2001 and 2002 to review and
comment on a best practices guide that EPA was developing for States on
consolidated assessment and listing methodologies. This guidance
``Consolidated Listing and Assessment Methodology-Toward a Compendium
of Best Practices'' was released in July 2002.
For all the above reasons, the Agency believes that it is
reasonable to withdraw the July 2000 rule. Continuing to evaluate
whether and how to revise the current regulations under the April 30,
2003, effective date deadline is confusing to the States and other
interested parties, and counterproductive to EPA's own continuing
efforts to assess the future direction and scope of the TMDL Program.
Moreover, in light of the significant progress States have made in the
past three years in establishing TMDLs under the currently effective
rules, EPA does not foresee any harm to States' efforts to implement
section 303(d) from withdrawal of the July 2000 rule pending completion
of EPA's effort. Consequently, the Agency is proposing to withdraw the
July 2000 rule.
E. Request for Comment
EPA invites and will consider comments received during the 30-day
comment period that address the question of whether the Agency should
withdraw the July 2000 rule. EPA is not requesting comments on the
currently effective rule at 40 CFR part 130 or what, if any, changes
the Agency should propose to the TMDL rules in effect at 40 CFR part
130. EPA's consideration of that issue is continuing and when or if EPA
proposes changes to the currently-effective TMDL regulations, EPA will
provide for public comment in a separate Federal Register notice.
Should EPA ultimately decide to withdraw the July 2000 rule, the effect
of such a withdrawal would be that the TMDL Program would continue to
operate under the rules promulgated in 1985, as amended in 1992, at 40
CFR part 130. Similarly, the revisions to the NPDES regulations at 40
CFR parts 122-124 would not go into effect, but under section
301(b)(1)(C), NPDES permits would still be required to include limits
as stringent as necessary to meet water quality standards, and under 40
CFR 122.44(d) permit limits would continue to be required to derive
from and comply with water quality standards and be consistent with the
assumptions and requirements of wasteload allocations in an approved
TMDL.
II. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), EPA
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 (PRA)
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 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 are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
today's rule on small entities, small entity is defined as: (1) A small
business
[[Page 79027]]
based on SBA size standards; (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, which would withdraw the
July 2000 rule that has not taken effect, will not have a significant
economic impact on a substantial number of small entities. Like the
July 2000 rule, this proposed rule will not impose any requirements on
small entities. This action would withdraw the July 2000 rule, which
has never taken effect.
D. Unfunded Mandates Reform Act (UMRA) of 1995
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, tribal and local
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 the 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 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.
Like the July 2000 rule, today's proposed rule, which would
withdraw the July 2000 rule that has not taken effect, contains no
Federal mandates (under the regulatory provisions of title II of the
UMRA) for State, local, or tribal governments or the private sector.
The proposed rule imposes no enforceable duty on any State, local or
tribal government or the private sector. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of UMRA. For the
same reason, EPA has also determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. This action does not impose any requirement on any
entity. There are no costs associated with this action. Therefore,
today's 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.''
This proposal 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. It proposes to withdraw the July
2000 rule, which has never taken effect. Thus, Executive Order 13132
does not apply to this rule.
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'' (59 FR 22951, November 6, 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. It
proposes to withdraw the July 2000 rule, which has never taken effect.
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 Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 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, EPA 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 and reasonably
feasible alternatives considered by EPA. This proposed rule is not
subject to Executive Order 13045 because it is not economically
significant as defined in Executive Order 12866.
H. Executive Order 13211: Energy Effects
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'', (66 FR
28355; May 22, 2001) because it is not a likely to have a significant
adverse effect on the supply, distribution, or use of
[[Page 79028]]
energy. This rule simply proposes to withdraw the July 2000 rule which
has never taken effect. We have concluded that this rule is not likely
to have any adverse energy effects.
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 to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not impose any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Confidential business information, Air pollution control, Hazardous
waste, Indians-lands, Intergovernmental relations, Penalties, Reporting
and recordkeeping requirements, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians-lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
40 CFR Part 130
Environmental protection, Grant programs--environmental protection,
Indians--lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: December 20, 2002.
Christine T. Whitman,
Administrator.
Parts 9, 122, 123, 124 and 130--Withdrawal of July 2000 Amendments
For the reasons stated in the preamble, EPA proposes:
1. To withdraw the amendments to 40 CFR part 9, 122, 123, 124 and
130 published July 13, 2000 (65 FR 43586).
a. The authority citation for part 130 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
* * * * *
[FR Doc. 02-32582 Filed 12-26-02; 8:45 am]
BILLING CODE 6560-50-U