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
[Federal Register: March 19, 2003 (Volume 68, Number 53)]
[Rules and Regulations]
[Page 13607-13614]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr03-20]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 130
[WH-FRL-7470-2]
RIN 2040-AD84
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.
ACTION: Final rule.
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SUMMARY: Today's action withdraws 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) that
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. Today, EPA is withdrawing
the July 2000 rule, rather than allow it to go into effect, because EPA
believes that significant changes would need to be made to the July
2000 rule before it could represent a workable framework for an
efficient and effective TMDL program. Furthermore, EPA needs additional
time beyond April 30, 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. The withdrawal of the July
2000 rule will not impede ongoing implementation of the existing TMDL
program. Regulations that EPA promulgated in 1985 and amended in 1992
remain in effect for the TMDL program. EPA has been working steadily to
identify regulatory and nonregulatory options to improve the TMDL
program and is reviewing its ongoing implementation of the existing
program with a view toward continuous improvement and possible
regulatory changes in light of stakeholder input and recommendations.
DATES: The July 2000 rule amending 40 CFR parts 9, 122, 123, 124 and
130, published on July 13, 2000, at 65 FR 43586, is withdrawn as of
April 18, 2003. This rule is considered final for purposes of judicial
review as of 1 p.m. eastern time, on April 2, 2003, as provided in 40
CFR 23.2.
ADDRESSES: The complete record for the final rule, Docket ID No. OW-
2002-0037, 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.
FOR FURTHER INFORMATION CONTACT: For information about today's final
rule, 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 Final Rule
Table of Potentially Regulated Entities
------------------------------------------------------------------------
Examples of potentially
Category regulated entities
------------------------------------------------------------------------
Governments............................ States, Territories and Tribes
with CWA responsibilites
------------------------------------------------------------------------
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. How Can I Get Copies of This Document and Other Related Information
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 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. 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 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. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility previously mentioned. Once in the electronic system, select
``search'' and then key in the appropriate docket identification
number.
D. Explanation of Today's Action
I. Background
On December 27, 2002, EPA proposed to withdraw final regulations
affecting the TMDL program (67 FR 79020) that were published in the
Federal Register on July 13, 2000 (65 FR 43586). Among other things,
the July 2000 rule was 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 EPA to approve, as part of the
TMDL, implementation plans containing lists of actions and expeditious
schedules to reduce pollutant loadings. Finally, the rule included
changes to the NPDES program 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.
[[Page 13609]]
The July 2000 rule was controversial from the outset. Both the
proposed and final rules generated considerable controversy, as
expressed in Congressional action, letters, testimony and public
meetings. Even before it was published in the Federal Register on July
13, 2000, Congress prohibited EPA from implementing the final rule
through a spending prohibition attached to an FY2000 appropriations
bill that prohibited EPA from using funds ``to make a final
determination on or implement'' the July 2000 rule. This 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. Because of the continuing
controversy regarding the July 2000 rule, EPA proposed on August 9,
2001 (66 FR 41817), and promulgated on October 18, 2001 (66 FR 53044),
a new effective date of April 30, 2003, for the July 2000 rule, to
allow time for reconsideration of the rule.
Stakeholder concerns were also 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 50 alleged legal defects in the
July 2000 rule, were ultimately consolidated in American Farm Bureau
Federation et al. v. Whitman (No. 00-1320) in the United States Court
of Appeals for the District of Columbia Circuit. In addition, several
other stakeholders have intervened in these lawsuits. 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.
In the December 27, 2002, preamble to the proposed withdrawal rule,
EPA explained why it had decided to withdraw the July 2000 rule. EPA
said that by continuing to examine the regulatory needs of the TMDL and
NPDES programs against the impending April 30, 2003, effective date for
the July 2000 rule, the Agency was sending confusing signals to the
States and other interested parties about which set of rules they
should be prepared to implement. Further, because of the significant
controversy, pending litigation and lack of stakeholder consensus on
key aspects of the July 2000 rule, the Agency said that the July 2000
rule could not function as the blueprint for an efficient and effective
TMDL program without significant revisions. Moreover, the Agency said
it needed more time to consider whether and how to revise the
currently-effective TMDL rules without concern that those efforts would
be adversely affected and distracted by the July 2000 rule's impending
effective date. In the preamble to the proposed rule, the Agency also
explained why it believes that, given the significant progress States
have made during the past four years in developing TMDLs, withdrawal of
the July 2000 rule will not compromise continuing efforts to implement
section 303(d) of the Clean Water Act. EPA's rationale for proposing
the withdrawal of the July 2000 rule is more fully explained in the
preamble accompanying the proposal (67 FR 79020).
II. Response to Comments and Final Decisions
EPA received approximately 90 separate written comments regarding
its proposal to withdraw the July 2000 rule. These comments came from a
broad cross-section of stakeholders, including agricultural and
forestry groups, business and industry entities and trade associations,
State agencies, environmental organizations, professional associations,
academic groups and private citizens. An overwhelming majority of the
commenters (more than 90 percent) supported EPA's proposed action to
withdraw the July 2000 rule. These commenters generally agreed with the
Agency's rationale for withdrawing the rule as discussed in the
December 27, 2002, preamble. Commenters reiterated EPA's concerns about
the potential distraction and confusion caused by the July 2000 rule's
impending deadline, as well as the controversy surrounding various
provisions of the rule and uncertainty caused by the pending DC Circuit
Court litigation. Others stated that the July 2000 rule was no longer
needed because of the increased technical guidance that EPA has
provided to States to improve the quality of their lists of impaired
waters, and the increased funding provided by EPA for developing TMDLs.
Many commenters said that States have made significant strides in
developing TMDLs since the rule was originally proposed and promulgated
and, therefore, the July 2000 rule was not needed. Several commenters
stated that allowing the July 2000 rule to go into effect would be
disruptive to ongoing TMDL development efforts, and that withdrawing
the July 2000 rule would give the Agency additional time to evaluate
the need for new TMDL regulations. Some commenters offered additional
reasons for supporting withdrawal of the July 2000 rule. Although most
of these reasons are consistent with EPA's rationale for withdrawing
the July 2000 rule, some are not. For example, some commenters, though
supporting EPA's decision to withdraw the July 2000 rule, also
questioned the legal soundness of certain provisions of that rule. EPA
does not necessarily agree with those comments, and its decision today
to withdraw the July 2000 rule should not be understood as an implicit
endorsement of those views and comments.
A small minority of commenters (four) disagreed with EPA's proposal
to withdraw the July 2000 rule. One commenter asserted that withdrawing
the July 2000 rule would ``postpone the TMDL program for several more
years'' and, by removing incentives to reduce pollution, would hinder
progress ``to implement the TMDL program'' and ``only make the problem
worse.'' Another commenter said that not going forward with the July
2000 rule would ``undermine the momentum of State programs'' that have
been ``waiting to see Federal guidelines to develop programs of their
own.'' EPA does not agree with these comments. Indeed, one State in its
comments supporting withdrawal said that the July 2000 rule ``would
undo much of the momentum and success'' of the State's ongoing and
successful TMDL program. As described in more detail in the December
27, 2002, preamble, in recent years, EPA and the States have made great
strides in implementing the existing 303(d) program to list impaired
waters and develop and implement TMDLs to restore impaired waters.
States have substantially improved their TMDL programs while the Agency
has provided the States with significant increases in technical and
financial support to expand and strengthen all elements of their
programs. From FY 1999 to 2002, EPA has provided the States almost $30
million for TMDL-specific activities and allowed States to use a
portion of State grants for water program administration (CWA section
106 grants) and nonpoint source programs (CWA sections 319 grants) for
developing and implementing TMDLs. In addition, since 1998, EPA 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
[[Page 13610]]
sources. A complete list of these guidance documents can be found at:
http://www.epa.gov/edocket.
Helped by these programmatic initiatives, States have made
considerable progress in developing TMDLs despite the fact that the
July 2000 rule never became effective. As stated in the December 27,
2002, proposal, 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 States continue to improve the
pace at which TMDLs are established. Given this progress and the
States' adoption since 1998 of schedules for TMDL development, EPA
anticipates no reduction in the pace of TMDLs being developed and the
associated improvement in water quality, even if the July 2000 rule
does not take effect.
One commenter objected to withdrawing the July 2000 rule because of
provisions contained in the rule for expanded public involvement in the
listing and TMDL development process. By not implementing the July 2000
rule, the commenter asserted that the public remains ``shut out'' of
the listing and TMDL development process, which allows the States to
develop impaired waters lists and establish TMDLs ``without adequate
public scrutiny.'' EPA disagrees with this comment. While it is true
that the July 2000 rule would have clarified, and, in some measure
strengthened, the public participation components of EPA's currently-
effective TMDL regulations, the current statutory and regulatory
provisions (as supplemented by EPA guidance to the States and its
Regional Offices) already allow for public scrutiny and participation
in the listing and TMDL development process. EPA's existing regulations
require that the process for involving the public in a State's listing
and TMDL program ``shall be clearly described in the State Continuing
Planning Process (CPP)'' (40 CFR 130.7(a)), and Sec. 130.7(c)(1)(ii)
requires that a State's calculations to establish TMDLs be subject to
public review, as defined in the State CPP. Additionally, EPA
regulations require that when EPA disapproves and establishes a list or
a TMDL, EPA must seek public comment (40 CFR 130.7(d)).
EPA's policy has always been that there should be full and
meaningful public participation in both the listing and TMDL
development process, and EPA has issued guidance in addition to the
regulations to support this effort. In EPA's ``Guidelines for Reviewing
TMDLs Under Existing Regulations Issued in 1992'' (May 20, 2002), EPA
states that, in addition to the TMDL regulatory requirements, ``final
TMDLs submitted to EPA for review and approval should describe the
State's/tribe's public participation process, including a summary of
significant comments and the State's/tribe's responses to those
comments.'' The guidance also states that ``provision of inadequate
public participation may be a basis for disapproving a TMDL. If EPA
determines that a State/tribe has not provided adequate public
participation, EPA may defer its approval action until adequate public
participation has been provided for, either by the State/tribe or by
EPA.''
EPA's ``Integrated Report'' guidance to States, tribes and EPA
Regions (Integrated Water Quality Monitoring and Assessment Report
(November 19, 2001)) states that ``States and territories should
provide for full public participation in the development of their
Integrated Report prior to its submission to EPA. EPA believes that
public understanding of how standard attainment determinations are made
for all A[sessement]
U[nits]s is crucial to the success of water
quality programs and encourages active stakeholder participation in the
assessment and listing process.... EPA will consider how the State or
territory addressed the comments...when approving or disapproving the
303(d) list of AUs (Category 5).''
Most recently, in May 2002, EPA issued guidance to its Regional
Offices stating that when reviewing State 303(d) lists, EPA Regions
should review how States provided for public participation to ensure
that each State carried out its public participation process consistent
with the State's public participation requirements (``Recommended
Framework for EPA Approval Decisions on 2002 State Section 303(d) List
Submission.'') If the Region believes a State has not provided adequate
public participation, the guidance provides steps the Region should
take in working with a State to provide for additional public
participation, and how the State or, if necessary, the Region, should
consider and address public comments prior to EPA's approval or
disapproval of the list. Finally, it is important to note that nearly
all of the States already have public participation requirements under
their own State laws for the listing and TMDL development processes,
and also provide for public notice.
For all of these reasons, EPA believes that adequate public
participation opportunities exist under the currently-effective
regulations and that withdrawing the July 2000 rule will not limit
meaningful public participation in the listing and TMDL development
process.
One commenter stated that, by not implementing the July 2000 rule,
States would continue to have inadequate monitoring programs and
continue to develop lists of impaired waters based on inadequate data.
EPA disagrees. EPA recognizes that no State has a perfect monitoring
and listing program. Monitoring and assessment programs are expensive
to assemble and implement. While the July 2000 rule would have
clarified certain aspects of the existing TMDL regulations regarding
listing methodologies, that rule, by itself, would not have provided
the additional funding needed by many States to expand their monitoring
and assessment programs. Moreover, many of the important listing
clarifications and improvements contained in the July 2000 rule have
already been provided to, and are currently being implemented by,
States, even without the July 2000 rule having gone into effect.
To assist in implementation of the currently-effective TMDL rules,
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
impaired waters. 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 guidance.
Approximately half of the States and Territories have submitted a 2002
report which incorporates some or all of the elements of this guidance.
In addition, 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
[[Page 13611]]
Methodology--Toward a Compendium of Best Practices'') was released in
July 2002. EPA is continuing to work with States to clarify and
strengthen their monitoring programs and to help improve the quality
and credibility of their lists of waters that require a TMDL.
One commenter stated that withdrawing the July 2000 rule would
continue ``to make EPA and the States the target of numerous lawsuits--
resulting in the courts driving environmental policy, rather than EPA
and the States.'' EPA does not agree with this comment. EPA does not
agree that there are, in the commenter's words, ``weaknesses'' with the
currently-effective TMDL regulations that make the Agency any more
vulnerable to litigation than if it did not withdraw the July 2000
rule. Indeed, we believe withdrawing the July 2000 rule will render
moot the pending D.C. Circuit Court challenge to that rule. Before July
2000, EPA was named as defendant in over 30 lawsuits challenging State
lists and the pace of State TMDL development. Since July 2000, only a
few such lawsuits have been filed, even though the July 2000 rule never
became effective. Clearly, the number of such suits has declined as the
States and EPA have done a better job under the 1985/1992 TMDL rules to
establish lists and TMDLs. In addition, to date only a handful of
lawsuits have been filed challenging any of the more than 7,000 TMDLs
that the States or EPA have established. Given these numbers, the
Agency does not believe there is anything inherently litigation-
provoking in the currently-effective TMDL rules and, based on this
record, EPA does not believe that withdrawing the July 2000 rule will
result in increased TMDL litigation.
One commenter objected to withdrawing the July 2000 rule because of
concerns regarding the inconsistent implementation of the program under
the currently-effective regulations and EPA guidance. EPA does not
agree that inconsistent implementation of the TMDL program is a
significant problem. Nor, for that matter, would implementation of the
July 2000 rule remove all potential for divergent implementation
approaches by the different States and EPA Regions. As discussed
previously, since publication of the July 2000 rule, EPA has issued
numerous detailed policy memoranda, national guidance documents,
technical protocol documents, and information on best management
practices so that States can improve their methods to monitor and list
impaired waters, and develop and implement TMDLs in a consistent, yet
flexible way. A complete list of these guidance documents can be found
at http://www.epa.gov/edocket. As noted previously, EPA has issued
detailed national guidance to EPA Regions on reviewing and approving
lists and TMDLs, (``EPA Review of 2002 Section 303(d) Lists and
Guidelines for Reviewing TMDLs Under Existing Regulations Issued in
1992'' (May 20, 2002)) and is working closely with all the EPA Regional
Offices to ensure that their regional review and approval of lists and
TMDLs correspond with this national policy. In addition, EPA has
recently released a guidance on ``Establishing Total Maximum Daily Load
(TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES
Permit Requirements Based on Those WLAs'' (November 22, 2002). This
memorandum clarifies EPA's policy on wasteload allocations,
specifically that NPDES-regulated storm water discharges must be
included in the wasteload allocation component of the TMDL (see 40 CFR
130.2(h)) and affirms EPA's view that an iterative, adaptive management
BMP approach is appropriate for permitting such discharges.
EPA has also sponsored numerous TMDL and TMDL-related training
sessions and meetings to clarify and provide detailed technical support
to the States and Regions to help ensure consistency in listing and
TMDL development (see EPA's website for a complete list of recent
activities: http://www.epa.gov/owow/tmdl/training.) EPA also has made
available to the public the ``National TMDL Tracking System'' (NTTS),
which includes all State-specific data on approved 303(d) lists and
approved TMDLs as well as a national summary of impaired waters and
TMDLs that have been approved for these waters (http://www.epa.gov/
owow/tmdl/.) In addition, since the Spring of 2001, EPA has held
regular conference calls with EPA Regions and the States to discuss and
answer any questions regarding the TMDL program, including technical
and policy questions. EPA believes that these guidance documents, the
National TMDL Tracking System, training, workshops, and close
communication with States and EPA Regional Offices have improved the
national consistency in how the TMDL program is implemented at both the
Federal and State level, while accommodating the inherent variability
in States' water quality standards, land and water characteristics, and
available resources.
As to the commenter's point that ``there are significant
differences between the July 2000 rule and the 1985, 1992 rule * * *
[that]
cannot adequately be addressed through EPA guidance,'' EPA notes
that its review of the currently-effective TMDL regulations in light of
the July 2000 rule is ongoing. EPA has not yet decided what, if any,
changes to propose to those regulations. As it continues to consider
the need for regulatory changes, EPA will consider the commenter's
suggestions regarding which elements belong in regulation and which may
be appropriately left to guidance. EPA will also consider the
commenter's suggestion that the Agency should allow the public to
participate in the development of future program guidance.
One commenter said EPA had not provided enough information to allow
it to make a ``well-reasoned decision or provide meaningful comment on
EPA's proposal to withdraw the July 2000 rule.'' Nevertheless, that
commenter did oppose EPA's proposed action. EPA disagrees with the
claim that it did not provide enough information for the public to
provide meaningful comment, and given the number of other comments to
the proposal addressing EPA's rationale, EPA believes that it
adequately discussed its justification for withdrawing the July 2000
rule in the December 27, 2002, preamble.
One commenter opposed withdrawal of the July 2000 rule because it
believed that the rule was ``necessary'' to ``aid in the control of
nonpoint source pollution.'' EPA disagrees with this comment. EPA notes
that there are numerous existing Clean Water Act authorities and
programs, supplemented by other Federal and State programs and
initiatives, that address nonpoint source pollution.
One commenter opposed withdrawal of the ``TMDL program'' because it
believed ``much time went into the planning of this program to protect
waterways * * * [and]
it needs to be tied into the NPDES permit program
and should be customized to fit individual permits.'' EPA is not sure
it fully understands this comment. To the extent the commenter is
opposed to withdrawal of the ``TMDL program,'' EPA notes that it is
only withdrawing the July 2000 rule, which has never become effective,
and not the TMDL program itself. EPA agrees that it took much planning
to develop the July 2000 rule, but, for the reasons already discussed
in this preamble and in the December 27, 2002, preamble, EPA has
decided to withdraw that rule, regardless of the effort that went into
its development. EPA also notes that the currently-effective TMDL
program is ``tied into the NPDES permit program'' in that, among other
things, permit
[[Page 13612]]
effluent limits must be consistent with the assumptions and
requirements of any available wasteload allocation for the discharge
prepared by the State and approved by EPA pursuant to 40 CFR 130.7. See
40 CFR 122.44(d)(1)(vii)(B). Similarly, 40 CFR 122.4(i) addresses what
requirements must be met for a permit to be issued to a new source or
new discharger who proposes to discharge a pollutant for which a TMDL
has been prepared.
One State commenter, while supporting withdrawal of the July 2000
rule, recommended that as part of this final rulemaking EPA immediately
modify 40 CFR 130.7 to require State 303(d) lists every four (instead
of every two) years. As EPA continues to consider whether and how to
revise the TMDL program, EPA will consider the commenter's suggestion.
One commenter asked for ``an evaluation of potential changes from
rule making, implementation and funding of Clean Water Act programs and
enforcement relative to the Russian River [California]
* * * [and an]
assurance that this regulatory shift will not result in degradation of
either the quality or quantity of our local resources.'' The commenter
did not appear to take a position on the proposed withdrawal of the
July 2000 rule, and EPA believes this comment is beyond the scope of
the proposal and does not require a response.
One electronic comment merely stated as follows: ``We strongly
oppose any reduction of restrictions on wetland maintenance.'' Again,
the commenter did not appear to take a position on the proposed
withdrawal of the July 2000 rule, and EPA believes this comment is
beyond the scope of the proposal and does not require a response.
More than half the commenters requested or encouraged EPA to pursue
further rulemaking once the July 2000 rule was withdrawn. Many of these
commenters submitted specific recommendations regarding how EPA should
structure a new TMDL rule. Some commenters requested that this new
rulemaking occur as quickly as possible. One commenter said it
``supports EPA's proposed withdrawal of the 2000 rule, assuming that
EPA intends to replace that rule in a timely manner with an improved
rule now known as the Watershed Rule.'' Another commenter said it
``will only support withdrawal of the July 2000 rule if EPA moves
quickly to propose and promulgate a Watershed Rule that provides a
comprehensive framework for the evolving TMDL program.'' Three
commenters who supported withdrawal of the July 2000 rule advised
against a new rulemaking saying that it ``would be disruptive and would
only derail State momentum to clean up our waterways.'' Two other
commenters cautioned that a new regulatory proposal ``could slow needed
progress'' and strongly urged the Agency ``not to propose any
regulatory or other changes that would cripple this vitally important
water clean up program.''
In response to these comments regarding the future direction of the
TMDL program, EPA restates that it has not yet completed its evaluation
regarding whether and how to revise the currently-effective TMDL rules.
Nor can EPA commit to how long it will take to complete that process.
EPA is committed to structuring a flexible, effective TMDL program that
States, territories and authorized tribes can support and implement.
EPA will carefully consider all of the past and recently-provided
commenters' recommendations as it continues to evaluate whether and how
to revise the currently-effective TMDL regulations using new regulatory
or non-regulatory approaches. EPA, to the best of its ability, will
continue to meet and share information with stakeholders regarding this
effort, and will provide an opportunity for public comment in a
separate Federal Register notice if the Agency decides to move forward
with a new rulemaking.
After carefully considering all the comments received in response
to its December 27, 2002, proposal, EPA is today promulgating a final
rule that withdraws the July 2000 rule. EPA is withdrawing the July
2000 rule, rather than allowing it to go into effect, because EPA
believes that significant changes would need to be made to the July
2000 rule before it could represent a workable framework for an
effective TMDL program. 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, and EPA is not sure how long that effort will take. In
light of the significant progress States have made in the past three
years establishing TMDLs under the currently-effective rules, EPA does
not believe that withdrawing the July 2000 rule will impede States'
efforts to implement section 303(d) to work towards cleaning up the
nation's waters and meeting water quality standards.
Today's final rule does not change any part of the currently
effective TMDL regulations promulgated in 1985, as amended in 1992, at
40 CFR part 130 or the NPDES regulations at parts 122--124.
III. 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.
[[Page 13613]]
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 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 final rule on small
entities, I certify that this action, which withdraws 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 final rule will not impose any requirements on small
entities. This action withdraws 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 final rule, which withdraws 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 final 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 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. It finalizes the withdrawal of the
July 2000 rule, which has never taken effect. Thus, Executive Order
13132 does not apply to this rule.
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 final 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
withdraws the July 2000 rule, which has never taken effect. Thus,
Executive Order 13175 does not apply to this rule.
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 final rule is not subject
to Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866.
[[Page 13614]]
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 likely to have a significant
adverse effect on the supply, distribution, or use of energy. This rule
simply finalizes the withdrawal of 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 final rulemaking does not impose any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Fairness Act of 1996, generally provides that
before a rule may take effect, the agency promulgating the rule must
submit a rule report, which includes a copy of the rule, to each House
of the Congress and to the Comptroller General of the United States.
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective on April 18, 2003.
List of Subjects
40 CFR Part 9
Environmental protection, 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.
The authority citation for part 130 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
For the reasons stated in the preamble, EPA withdraws the final
rule amending 40 CFR parts 9, 122, 123, 124 and 130 published July 13,
2000 (65 FR 43586).
Dated: March 13, 2003.
Christine T. Whitman,
Administrator.
[FR Doc. 03-6574 Filed 3-18-03; 8:45 am]
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