Water Quality Standards for Puerto Rico

[Federal Register: December 12, 2007 (Volume 72, Number 238)]
[Rules and Regulations]
[Page 70517-70526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de07-8]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2007-0259; FRL-8504-9]

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is promulgating water quality standards that establish
methods to implement Puerto Rico's existing antidegradation policy for
waters in the Commonwealth of Puerto Rico. EPA was required to propose
antidegradation implementation methods under court order. The Clean
Water Act requires that all States, Territories, and authorized Tribes
develop water quality standards that include the designated use or uses
of the water, water quality criteria to protect those uses, and an
antidegradation policy and implementation methods. Through this
promulgation, the federal antidegradation implementation methods are
added to Puerto Rico's water quality standards.

DATES: This final rule is effective January 11, 2008.

ADDRESSES: The public record for this rulemaking is located at USEPA,
1200 Pennsylvania Ave., NW., Washington, DC 20460, and EPA Region 2,
290 Broadway, New York, New York 10007, and can be viewed between 8:30
a.m. and 4:30 p.m. at both locations.

FOR FURTHER INFORMATION CONTACT: For further information concerning
today's final rule, contact Wayne Jackson, U.S. EPA Region 2, Division
of Environmental Planning and Protection, 290 Broadway, New York, New
York 10007 (telephone: 212-637-3807 or e-mail: jackson.wayne@epa.gov)
or Lauren Wisniewski, U.S. EPA Headquarters, Office of Science and
Technology, 1200 Pennsylvania Avenue, NW., Mail Code 4305T, Washington,
DC 20460 (telephone: 202-566-0394 or e-mail: wisniewski.lauren@epa.gov).

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
A. What Entities May Be Affected by this Action?
B. How Can I Get Copies of This Document and Other Related Information?
II. Background
A. What Are the Applicable Federal Statutory and Regulatory
Requirements?
B. Why Is EPA Promulgating Federal Antidegradation
Implementation Methods for the Commonwealth of Puerto Rico?
III. This Final Rule
A. What Are the Federal Antidegradation Implementation Methods
to Protect Puerto Rico's High Quality Waters?
B. How Will Puerto Rico Implement the Federal Antidegradation
Implementation Methods?
C. What Are the Cost Implications of the Final Rule?
D. Comments Received in Response to EPA's May 2007 Proposal
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income Populations)
K. Endangered Species Act
L. Congressional Review Act

I. General Information

A. What Entities May Be Affected by This Action?

Citizens concerned with water quality in Puerto Rico may be
interested in this rulemaking which establishes federal antidegradation
implementation methods by regulation for waters in the Commonwealth of
Puerto Rico (hereafter, ``the Commonwealth'' or ``Puerto Rico'').
Entities discharging pollutants to the surface waters of Puerto Rico
could be indirectly affected by this rulemaking since water quality
standards are used in determining National Pollutant Discharge
Elimination System (NPDES) permit limits, CWA section 404 dredge and
fill permits, and other activities requiring CWA section 401 certification.
Categories and entities that may ultimately be affected include:

[[Page 70518]]

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Examples of potentially affected
Category entities
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Industry.............................. Industries discharging
pollutants to surface waters in
Puerto Rico.
Municipalities........................ Discharges to surface waters in
Puerto Rico from publicly owned
facilities such as publicly
owned treatment works and water
filtration facilities.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES-regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not listed in the table could also be affected. To
determine whether your facility may be affected by this action, you
should carefully examine today's proposed rule. If you have questions
regarding the applicability of this action to the particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this
action under Docket Id. No. [EPA-HQ-OW-2007-0259]. The official public
docket consists of the document specifically referenced in this action,
any public comments received, and other information related to this
action. Although a part of the official docket, the public docket does
not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at the Water Quality Standards for Puerto Rico docket
located at both U.S. EPA Region 2, 290 Broadway, New York, New York
10007, and the OW Docket, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC 20004. These Docket Facilities are open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
Docket telephone numbers are 212-637-3807 and 202-566-1744,
respectively. A reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/
dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through one of the Docket Facilities identified in
Section I.B.1.

II. Background

A. What Are the Applicable Federal Statutory and Regulatory
Requirements?

Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or ``the
Act'') directs States, Territories, and authorized Tribes (hereafter
referred to as ``States''), with oversight by EPA, to adopt water
quality standards to protect the public health and welfare, enhance the
quality of water and serve the purposes of the CWA. Under section 303,
States are required to develop water quality standards for navigable
waters of the United States within the State. Section 303(c) and EPA's
implementing regulations at 40 CFR part 131 require State and Tribal
water quality standards to include the designated use or uses to be
made of the water, the water quality criteria necessary to protect
those uses and an antidegradation policy. States are required to review
their water quality standards at least once every three years and, if
appropriate, revise or adopt new standards. The results of this
triennial review must be submitted to EPA, and EPA must approve or
disapprove any new or revised standards.
Section 303(c) of the CWA authorizes the EPA Administrator to
promulgate water quality standards to supersede State standards that
EPA has disapproved or in any case where the Administrator determines
that a new or revised standard is needed to meet the CWA's
requirements. In a February 14, 2007, Opinion and Order from the United
States District Court for the District of Puerto Rico in the case of
CORALations and the American Littoral Society v. United States
Environmental Protection Agency, et al. (No. 02-1266 (JP) (D. Puerto
Rico)), the Court ordered EPA to ``prepare and publish new or revised
water quality standards identifying antidegradation methods for Puerto
Rico within 60 days'' (April 17, 2007). The Court granted EPA's motion
for an additional 30 days. EPA proposed Federal water quality standards
for these waters in Puerto Rico on May 17, 2007.
As one of the minimum elements that must be included in a State's
water quality standards, antidegradation is an important tool for
States and authorized Tribes to use in meeting the CWA's requirement
that water quality standards protect public health or welfare, enhance
the quality of water and meet the objective of the CWA to restore and
maintain the chemical, physical and biological integrity of the
nation's waters. Antidegradation requirements help ensure that any
degradation in water quality is subject to review and approval by the
State even in cases where the existing water quality far exceeds the
water quality criteria and designated use applicable to individual waters.
EPA's regulation at 40 CFR 131.12 requires that States and
authorized Tribes adopt antidegradation policies and identify
implementation methods to provide three levels or tiers of water
quality protection. The first level of protection at 40 CFR
131.12(a)(1), also known as Tier 1 of antidegradation, requires the
maintenance and protection of existing instream water uses and the
level of water quality necessary to protect those existing uses.
Protection of existing uses is the floor of water quality protection
afforded to all waters of the United States. Existing uses are ``* * *
those uses actually attained in the water body on or after November 28,
1975, whether or not they are included in the water quality standards''
(40 CFR 131.3(e)).
The second level of protection, or Tier 2 of antidegradation, is
for high quality waters. High quality waters are defined in 40 CFR
131.12(a)(2) as waters where the quality of the waters is better than
the levels necessary to support propagation of fish, shellfish, and
wildlife and recreation in and on the water. This water quality is to
be maintained and protected unless the State or authorized Tribe finds,
after public participation and intergovernmental review, that allowing
lower water quality is necessary to accommodate important economic or
social development in the area in which the waters are located. In
allowing lower water quality, the State or authorized

[[Page 70519]]

Tribe must assure water quality adequate to protect existing uses.
Further, the State or authorized Tribe must ensure that all applicable
statutory and regulatory requirements are achieved for all new and
existing point sources and all cost-effective and reasonable best
management practices are achieved for nonpoint source control.
Finally, the third and highest level of antidegradation protection,
or Tier 3, is for outstanding national resource waters (ONRWs). If a
State or authorized Tribe determines that the characteristics of a
water body constitute an outstanding national resource, such as waters
of National and State parks and wildlife refuges and waters of
exceptional recreational or ecological significance, and designates a
water body as such, then that water quality must be maintained and
protected (see 40 CFR 131.12(a)(3)).
In addition to requiring States and authorized Tribes to adopt an
antidegradation policy, 40 CFR 131.12 requires States to identify
methods for implementing such a policy. Such methods are not required
to be contained in the State's regulation, but because they inform
EPA's judgment regarding whether the State's antidegradation policy is
consistent with the Federal regulations at 40 CFR 131.12, they are
subject to EPA review. Where the State chooses to make such methods
part of its water quality standards regulations, section 303(c)(3) of
the CWA and EPA's implementing regulations require them to be submitted
to EPA for review and approval. When a State or authorized Tribe
chooses to develop such methods as guidance or outside of regulation,
EPA reviews the methods in the context of determining whether the
State's antidegradation policy as interpreted and implemented through
the methods, is consistent with 40 CFR 131.12.
EPA's regulations at 40 CFR 131.12 provide a great deal of
discretion to States regarding the amount of specificity required in a
State's antidegradation implementation methods. The regulations do not
specify minimum elements for such methods, but do require that such
methods not undermine the intent of the antidegradation policy. See
Advanced Notice of Proposed Rulemaking, 63 FR 36742, 36781, July 7, 1998.

B. Why Is EPA Promulgating Federal Antidegradation Implementation
Methods for the Commonwealth of Puerto Rico?

Puerto Rico has an existing EPA-approved antidegradation policy,
which was adopted on October 27, 1990, and approved by EPA on March 28,
2002. This antidegradation policy mirrors that of the federal
regulation. The policy states the following:

``It is the policy of the Government of Puerto Rico to conserve
and protect the existing uses of the Waters of Puerto Rico. The
water quality necessary to protect the existing uses, including
threatened and endangered species shall be maintained and protected.
In those water bodies where the quality exceeds levels necessary
to support propagation of fish, shellfish, wildlife, desirable
species including threatened or endangered species and recreation in
and on the water, that quality shall be maintained and protected. A
lower water quality may be allowed when the [Environmental Quality
Board of the Commonwealth of Puerto Rico] finds, after full
satisfaction of the intergovernmental coordination and public
participation provisions of the Board's Continuing Planning Process
that allowing lower water quality is necessary to accommodate
important economic or social development in the area where the
waters are located. In allowing such lower water quality, the Board
shall require a water quality level adequate to protect existing
uses fully. Further, the Board will require that:
(1) The highest statutory and regulatory requirements for all
new and/or existing point sources be achieved and
(2) All cost-effective and reasonable best management practices
for non-point source control be implemented.
Where high quality waters constitute an outstanding national
resource, such as waters of El Yunque National Forest and State
parks, wildlife refuges and waters of exceptional recreational or
ecological significance, that water quality shall be maintained and
protected.
Where potential water quality impairment is associated with a
thermal discharge, this thermal discharge must comply with Section
316 of the Clean Water Act as amended.''

The Environmental Quality Board of the Commonwealth of Puerto Rico
(EQB or Board) first adopted an antidegradation policy in its water
quality standards regulation in June 1973. EQB is responsible, in part,
for developing and recommending to the Governor public policy to
encourage and promote the improvement of environmental quality so as to
meet the conservation, social, economic, health and other requirements
and goals of the Commonwealth. One of the specific functions of EQB is
to develop and adopt water quality standards, which are intended to
``enhance, maintain and preserve the quality of the waters of Puerto
Rico compatible with the social and economic needs of Puerto Rico.''
This antidegradation policy was approved by EPA on November 15, 1973.
Puerto Rico's antidegradation policy statement remained unchanged until
1990. In August 1990, the Commonwealth of Puerto Rico adopted revisions
to the Puerto Rico Water Quality Standards Regulation (PRWQSR). These
were sent to EPA Region 2 on September 21, 1990, with the caveat from
the Chairman of the EQB that the transmittal may not be the final
submittal, since EQB was going to hold additional public hearings on
November 1, 1990, regarding certain aspects of the revisions. Because
of this caveat, and because the requisite certification from the
Commonwealth's Secretary of Justice was not submitted with the
revisions as required by 40 CFR 131.6(e), EPA did not act on these
revisions immediately.
From 1991 to 1993, EPA Region 2 worked with EQB on a series of
subsequent draft revisions to the PRWQSR. These drafts were never
adopted by Puerto Rico.
The requisite certification from the Commonwealth's Secretary of
Justice was ultimately submitted to EPA on February 25, 2002. Upon
receipt of this certification EPA took final action on all new and
revised provisions of the 1990 PRWQSR on March 28, 2002. These
revisions included the above-referenced revisions to the Puerto Rico
antidegradation policy.
Prior to October 2001, Puerto Rico had antidegradation
implementation methods set forth in a document known as its Continuing
Planning Process (CPP). In the fall of 2001, EPA commenced work with
the Puerto Rico EQB to enhance their antidegradation implementation
methods. EQB submitted its first reasonably complete draft of its
consolidation of antidegradation implementation methods on September 3,
2003.
On February 20, 2002, CORALations, American Littoral Society, and
the American Canoe Association filed a complaint in the U.S. District
Court for the District of Puerto Rico. In this action, the plaintiffs
alleged, among other things, that a September 4, 1992 letter from a EPA
Region 2 Division Director to the EQB had triggered a mandatory duty
under section 303(c)(4) of the CWA for EPA to prepare and propose
regulations for Puerto Rico setting forth a revised water quality
standard for antidegradation implementation methods.
In October and December 2003, EQB submitted two revised drafts of
its consolidation of antidegradation implementation methods. The
December 2003 draft was submitted under cover of a letter dated
December 16, 2003, from Ruben Gonzalez Delgado, Director of EQB's Water
Quality Area, to Walter Mugdan, Director of the EPA

[[Page 70520]]

Region 2's Division of Environmental Planning and Protection. This
letter stated that it was EQB's intent to promulgate this consolidation
as part of the PRWQSR in order to consolidate EQB's existing
antidegradation implementation methods ``either explicitly or by
reference, into one document so that it is readily accessible to the
public and the regulated community.''
On June 17, 2004, EQB submitted to EPA its final revised
consolidation document. This consolidation document, however, was not
adopted as a regulation. In a letter dated July 9, 2004, from Mr.
Mugdan to EQB's President, Esteban Mujica Cotto, EPA stated that these
methods meet the requirements of the Clean Water Act and 40 CFR 131.12(a).
On February 14, 2007, the U.S. District Court of Puerto Rico issued
an opinion ruling that EPA had failed to execute a mandatory duty to
propose antidegradation implementation methods for Puerto Rico and
ordered EPA to prepare and publish new or revised water quality
standards identifying antidegradation implementation methods for Puerto
Rico within 60 days. The court granted a 30-day extension and EPA
proposed federal water quality standards identifying methods for
implementing Puerto Rico's antidegradation policy on May 17, 2007.

III. This Final Rule

EPA is promulgating federal water quality standards identifying
methods for implementing Puerto Rico's antidegradation policy. If
Puerto Rico adopts antidegradation implementation methods and EPA
approves Puerto Rico's action, EPA will initiate withdrawal of its
corresponding federal water quality standards.

A. What Are the Federal Antidegradation Implementation Methods To
Protect Puerto Rico's High Quality Waters?

The federal antidegradation implementation methods are the same as
the implementation methods Puerto Rico provided to EPA in 2004. EPA
reviewed those and on July 9, 2004, sent a letter from Walter Mugdan,
Director of EPA Region 2's Division of Environmental Planning and
Protection Division to Esteban Mujica Cotto, President of Puerto Rico's
Environmental Quality Board stating that these methods meet the
requirements of 40 CFR 131.12(a). (It should be noted that subsequent
to the issuance of EPA's July 9, 2004 letter, EQB incorporated some
non-substantive updates to its consolidation of implementation methods.
The purpose of these updates is to reflect the fact that the Puerto
Rico Environmental Public Policy Act (12 LPRA 8001 et. seq.), which is
one of the referenced documents in the consolidation document, was
amended and re-issued on September 22, 2004. The June 17, 2004 version
of the consolidation document had referenced the previously applicable
version of the Puerto Rico Environmental Public Policy Act. The methods
EPA is promulgating reflect this update).
Consistent with Puerto Rico's antidegradation implementation
methods, the federal methods provide that all point sources would be
subject to antidegradation review. The CWA and EPA's regulations leave
to the States and authorized Tribes the decision whether to regulate
nonpoint sources by requiring that they undergo antidegradation review
(American Wildlands v. Browner, 260 F.3d 1192, 1198 (10th Cir. 2001)).
To date, Puerto Rico has not chosen to subject nonpoint sources to
antidegradation review. As a result, EPA is not applying Puerto Rico's
methods to sources other than point sources.
In addition, as envisioned by Puerto Rico, the federal methods
provide that the antidegradation review would occur as part of Puerto
Rico's CWA section 401 certification process. EPA issues all of the
National Pollutant Discharge Elimination System (NPDES) permits under
CWA section 402 for the Commonwealth of Puerto Rico. As part of this
process, Puerto Rico must certify under CWA section 401 that those
permits comply with Puerto Rico's water quality requirements.
Conducting the antidegradation review process during this certification
is a logical time for this review to occur, since this is the time when
EQB conducts its formal analysis to determine, in part, if a proposed
action will comply with all aspects of the Puerto Rico Water Quality
Standards Regulation (PRWQSR).
To implement Tier 1, it is important to explain what is meant by
the term ``existing in-stream water use'' (40 CFR 131.12 (a)(1)) and
explain how the level of water quality will be identified that is
required to allow an existing use to continue to occur. Section 131.3
of the federal regulations defines existing uses as ``those uses
actually attained in the water body on or after November 28, 1975* *
*''. The proposed methods provide that where there are concentrations
or levels of a particular pollutant that have caused a waterbody to be
listed as impaired under section 303(d) of the CWA, no additional
degradation may occur in the waterbody. Puerto Rico's methods provide
that this would be assured through water quality-based effluent limits
meeting water quality criteria ``end-of-pipe''. EPA believes this
approach will protect the quality of water in the waterbody from further
degradation, which will lead to the protection of the existing uses.
EPA has articulated that states may take one of two approaches in
identifying their high quality waters, also known as Tier 2 of
antidegradation: a parameter-by-parameter approach or a waterbody-by-
waterbody approach. Under the parameter-by-parameter approach, States
and authorized Tribes determine whether water quality is better than
the applicable criteria for a specific parameter or pollutant that
would be affected by a new discharge or an increase in an existing
discharge of the pollutant. The water body-by-water body approach
weighs the chemical, physical, biological, or other factors to judge a
water body's overall quality. In EPA's Advanced Notice of Proposed
Rulemaking (ANPRM), EPA discussed the advantages and disadvantages to
both approaches to designating high quality waters. 63 FR 36782, 36783,
July 7, 1998. EPA also discussed these issues in the preamble to its
proposed rule regarding antidegradation implementation methods for
Kentucky. 67 FR 68971, 67798-99, November 14, 2002. EPA interprets its
regulation to authorize either approach. Consistent with the
implementation methods identified by Puerto Rico, EPA is today
requiring that antidegradation reviews for high quality waters in
Puerto Rico occur on a parameter-by-parameter basis.
Under the federal methods, Puerto Rico must implement protection of
waters it identifies as ONRWs, also known as Tier 3 of antidegradation,
through a requirement that prohibits point source discharges in ONRWs.
As described earlier in this section, the federal methods mirror those
methods already identified by Puerto Rico for implementing its
antidegradation implementation policy. EPA believes this approach is
more than sufficient to meet the federal requirements at 40 CFR 131.12(a)
(3) to maintain and protect the water quality of waters identified as
ONRWs and is consistent with Puerto Rico's preferred approach.
Consistent with the antidegradation methods identified by Puerto
Rico, this final rule includes methods for implementing Puerto Rico's
antidegradation policy for permits issued under section 404 of the CWA
or permits issued under section 10 of the

[[Page 70521]]

River and Harbors Act. The federal methods require that the discharge
of dredged or fill material not have an unacceptable adverse impact
either individually or in combination with other activities affecting
the wetland before they can be allowed to discharge. Further, the
federal methods provide that any proposed discharge will not be allowed
if there is a practicable alternative that would have less adverse
impact. With regard to how the permits for these types of activities
will be implemented in waters identified by Puerto Rico as ONRWs, the
federal methods provide that any proposed permitted activity under
these sections of the statutes be treated the same as NPDES-permitted
dischargers, that is, that these types of activities will be
prohibited. This approach, also contained in Puerto Rico's methods,
will assure that the water quality in waters identified as ONRWs be
maintained and protected.

B. How Will Puerto Rico Implement the Federal Antidegradation
Implementation Methods?

Puerto Rico will implement the federal antidegradation
implementation methods through its ongoing CWA section 401
certification process. As described earlier in Section III.A., EPA
Region 2 issues the NPDES permits for the Commonwealth of Puerto Rico.
The permit issuance and preparation of the water quality certification
occurs sequentially as described below.
Section 6.11 of the PRWQSR describes how the EQB will issue CWA
section 401 Water Quality Certifications (WQC) for federally-issued
permits, such as NPDES permits. This provision provides, in part, that
when requesting a WQC, an applicant must submit, as part of the
application, all relevant information to demonstrate to the
satisfaction of the Board that the proposed action will not cause a
violation of any applicable water quality standards in the receiving
water body.
Puerto Rico's requirements for conducting CWA section 401
certifications, which include antidegradation reviews, are found in
Resolution R-89-2-2 of the Governing Board of EQB--February 2, 1989,
and are summarized as follows.
1. EPA Region 2 (the Region) receives an application from a
discharger for a NPDES permit, or for the renewal or modification of an
existing NPDES permit. The applicant also submits a copy of the
application to the EQB.
2. The Region reviews the application, and, if necessary, obtains
additional information from the applicant. After all information is
submitted, and EPA completes its review, EPA solicits certification
from EQB in accordance with 40 CFR Part 124.
3. EQB evaluates the application/draft permit and issues or denies
a 401 certification, or waives the right to review the permit. (EQB
will not waive the right when an initial environmental assessment
indicates that the discharge for which a permit is sought will have a
significant impact on the environment, triggering the need for an
antidegradation review.) In summary, if EQB plans to certify the
discharge, an intent to issue a WQC will be prepared. If EQB plans to
deny the certification, an intent to deny a WQC will be prepared,
including the basis of the determination that the discharge will not
comply with applicable water quality standards. A copy of the intent to
issue or deny a WQC, whichever the case, will be sent to EPA and the
petitioner. A public notice and comment period follows. EQB then
decides to issue the WQC or denial. Petitioners have the ability to
seek reconsideration before the WQC decision becomes final.
4. In conducting an antidegradation review as part of the CWA
section 401 certification process, EQB first determines which level of
antidegradation applies based upon a review of existing water quality
data, and other required information, to be provided by the applicant.
Based upon this review, EQB then determines if additional information
is necessary in order to make a determination. In the case of Tier I
waters, a determination is made as to whether a discharge would lower
water quality such that it would no longer be sufficient to protect and
maintain the existing and designated uses of that water body. When the
assimilative capacity of a water body is determined to be insufficient
to protect existing and designated uses with an additional load to the
water body, EQB does not allow a discharge increase by requiring that
the applicable water quality standards be met at the end of the pipe.
In order to allow the lowering of water quality in Tier 2 waters, EQB
evaluates the existing and protected quality of the receiving water on
a parameter-by-parameter basis. In those cases where a potential
increase in loading from a discharge may result in the lowering of
water quality, the applicant must show and justify the necessity for
such lowering of water quality. As part of the Tier 2 antidegradation
review process, EQB provides a public comment period of at least 30 days.
In the case of Tier 3 waters, no point source discharge will be allowed.
5. If EQB issues a 401 certification, then EPA Region 2
incorporates the WQC into the draft permit and issues public notice of
its intention to issue a final permit pursuant to 40 CFR Part 122.

C. What Are the Cost Implications of the Final Rule?

Puerto Rico's existing antidegradation implementation methods are
the same as the antidegradation methods set forth in this final rule.
Thus, while not in regulation, these implementation methods are already
in place in Puerto Rico and as such, EPA's federal antidegradation
methods are not expected to result in any additional monetary costs.
Nonetheless, EPA prepared an analysis to evaluate potential impacts to
the Commonwealth of Puerto Rico associated with future implementation
of EPA's federal standards. This analysis is documented in the
``Economics Analysis of Antidegradation Implementation Methods for the
Commonwealth of Puerto Rico,'' which can be found in the record for
this rulemaking and concludes that the total annualized costs of EPA's
final rule for both the Commonwealth and the point source dischargers
could range from $14,500 to $32,900.
Any NPDES-permitted facility that discharges to water bodies
affected by this final rule could potentially incur costs to comply
with the rule's provisions. The types of affected facilities may
include industrial facilities and publicly owned treatment works
(POTWs). EPA did not consider the potential costs for nonpoint sources,
such as agricultural and forestry-related nonpoint sources, because
EPA's final rule would only require that antidegradation be applied to
point sources. In addition, EPA did not address the potential monetary
benefits of this final rule for Puerto Rico.
1. Identifying Affected Entities
EPA identified approximately 265 point source facilities that may
be affected by the rule. Of these potentially affected facilities, 76
are classified as major dischargers, and 189 are minor dischargers.
Exhibit 1 provides a summary of facilities that are currently
permitted to discharge to Puerto Rico surface waters, as identified in
EPA's Permit Compliance System (PCS). There are a total of 265
facilities, 71 percent of which are minor dischargers.

[[Page 70522]]

Exhibit 1.--Potentially Affected Individual NPDES Permitted Dischargers in Puerto Rico
----------------------------------------------------------------------------------------------------------------
Number of Facilities
Facility type -----------------------------------------------
Majors \1\ Minors \2\ Total
----------------------------------------------------------------------------------------------------------------
Municipal....................................................... 36 33 69
Industrial...................................................... 40 156 196
-----------------------------------------------
Total....................................................... 76 189 265
----------------------------------------------------------------------------------------------------------------
Sources: U.S. EPA (2007) and U.S. EPA Region 2 (2007).
\1\ Major dischargers are facilities discharging greater than 1 million gallons per day (mgd) and likely to
discharge toxic pollutants in toxic amounts.
\2\ Minor dischargers are defined as facilities discharging less than 1 million gallons per day (mgd) and not
likely to discharge toxic pollutants in toxic amounts.

In the case of Tier 1 waters, EQB would make a determination as to
whether a discharge would lower water quality such that it would no
longer be sufficient to protect and maintain the existing and
designated uses of that water body. For Tier 2 waters, EQB would
evaluate the existing and protected quality of the receiving water on a
parameter-by-parameter basis. Under this approach, EQB would determine
whether water quality is better than the applicable criteria for a
specific parameter or pollutant that would be affected by a new
discharge or an increase in an existing discharge of the pollutant. In
addition, no point source discharges would be allowed to Tier 3 waters.
2. Method for Estimating Potential Compliance Costs
EPA Region 2 indicates that is has received five antidegradation
review requests within the last five years, or approximately one
request per year. This includes antidegradation reviews for both
existing and new facilities. EPA assumed that each type of facility
(e.g., major municipal, minor municipal, major industrial, and minor
industrial) is equally likely to request an antidegradation review.
Costs for the final antidegradation implementation methods include
costs to facilities for preparing the review material and necessary
data, and costs associated with the Commonwealth's review of the
facility information and certification process. The cost incurred by
facilities represents the cost of a preliminary engineering analysis
and the subsequent financial analysis for which EPA provides guidance
and a workbook. This analysis could cost between one percent and three
percent of the installed cost of additional pollution controls.
The cost potentially incurred by Puerto Rico's Environmental
Quality Board (EQB) represents the cost of reviewing the engineering
cost analysis and financial impact analysis, validating source data and
checking calculations, evaluating the engineering design and the
conclusions regarding potential financial and community impacts,
evaluating the information provided regarding the importance of the
proposed development to the economic and social conditions of the
affected community, and reviewing and responding to comments from the
public. EPA estimated the total time requirement to process each
request to be 140 hours.
3. Results
Based on the potential number of antidegradation requests, EPA
estimated that point source dischargers may incur total annual costs
from $9,200 to $27,600 per year. EPA also estimated that Puerto Rico's
EQB may incur annual costs to review the requests of approximately
$5,300. Thus, total annual costs of the final rule could be $14,500 to
$32,900.

D. Comments Received in Response to EPA's May 2007 Proposal

EPA solicited written public comment on the federal antidegradation
methods proposed in the Federal Register on May 17, 2007 and held a
public hearing on Monday, June 4, 2007 in Puerto Rico. No public
comments were received.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
Puerto Rico is already implementing the antidegradation methods set
forth in this final rule. Therefore, these EPA methods are not expected
to result in any additional monetary costs. However, EPA has prepared
an analysis of the costs of the Puerto Rico antidegradation policy and
methods. This analysis is contained in the ``Economic Analysis of
Antidegradation Implementation Methods for the Commonwealth of Puerto
Rico.'' A copy of the analysis is available in the docket for this
action and is briefly summarized in Section III.C of today's notice.

B. Paperwork Reduction Act

This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995. It does not include
any information collection, reporting or recordkeeping requirements.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have significant economic impact on a substantial number
of small entities. Small entities

[[Page 70523]]

include small businesses, small organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering these economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Puerto
Rico's existing antidegradation implementation methods are the same as
the antidegradation implementation methods set forth in this final
rule. Thus, while not in regulation, the implementation methods are
already in place in Puerto Rico and, as a result, this regulation is
not expected to result in any additional monetary costs. Nonetheless,
EPA prepared an analysis to evaluate potential impacts to the
Commonwealth of Puerto Rico associated with future implementation of
EPA's federal standards. This analysis is documented in the ``Economic
Analysis of Antidegradation Implementation Methods for the Commonwealth
of Puerto Rico,'' which can be found in the record for this rulemaking.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of 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.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Therefore, this rule is not subject to the
requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, this rule is not subject to the requirements of
section 203 of the Unfunded Mandates Reform Act.

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 final rule does not affect the nature of the relationship
between EPA and States generally, for the rule only applies to waters
within Puerto Rico's jurisdiction. Further the final rule does not
substantially affect the relationship of EPA and the Commonwealth of
Puerto Rico, or the distribution of power or responsibilities between
EPA and the various levels of government. Because Puerto Rico is
already implementing these antidegradation methods, this final rule
does not change the Commonwealth's ability to implement these methods.
Further, this final rule does not preclude Puerto Rico from adopting
its own antidegradation methods that meet the requirements of the CWA
into its own regulations. Thus, Executive Order 13132 does not apply to
this rule.
Although section 6 of Executive Order 13132 does not apply to this
final rule, EPA did consult with the Commonwealth of Puerto Rico in
developing 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 solicited comment on the 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 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175, because no
Indian Tribal Governments exist in Puerto Rico. Thus, Executive Order
13175 does not apply to this rule.

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

Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under 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, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant and EPA does not have reason to believe
the environmental health or safety risks addressed by this action
present a disproportionate risk to children.

[[Page 70524]]

H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)

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

I. National Technology Transfer Advancement Act of 1995

As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No.
104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This final rulemaking does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.

J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The antidegradation implementation methods set forth in
this final rule are the same as the implementation methods Puerto Rico
provided to EPA in 2004, which Puerto Rico is already implementing.

K. Endangered Species Act

EPA transmitted the proposed rule to the Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS) for review and
comment concurrent with its publication in the Federal Register on May
17, 2007. That transmittal constituted EPA's initiation of informal
consultation with the Services on this rulemaking, pursuant to section
7 of the Endangered Species Act and its implementing regulations. EPA
received concurrence from the FWS on June 18, 2007, that the rule is
not likely to adversely affect federally-listed species in the
Commonwealth of Puerto Rico. EPA also received a similar concurrence
from the NMFS on September 18, 2007.

L. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement 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.
Sec. 804(2). This rule will be effective January 11, 2008.

List of Subjects in 40 CFR Part 131

Environmental protection, Antidegradation, Water quality standards.

Dated: December 6, 2007.
Stephen L. Johnson,
Administrator.

• For the reasons set forth in the preamble, EPA amends 40 CFR part 131
as follows:

PART 131--WATER QUALITY STANDARDS

• 1. The authority citation for part 131 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

Subpart D--[Amended]

• 2. Section 131.42 is added to read as follows:

Sec. 131.42 Antidegradation Implementation Methods for the
Commonwealth of Puerto Rico.

(a) General Policy Statement.
(1) All point sources of pollution are subject to an
antidegradation review.
(2) An antidegradation review shall be initiated as part of the
Section 401--``Water Quality Certification Process'' of the Clean Water
Act.
(3) The 401 Certification Process shall follow the procedures
established by the February 2, 1989 Resolution R-89-2-2 of the
Governing Board of the Puerto Rico Environmental Quality Board (EQB).
(4) The following are not subject to an antidegradation review due
to the fact that they are nondischarge systems and are managed by
specific applicable Puerto Rico regulations:
(i) All nonpoint sources of pollutants.
(ii) Underground Storage Tanks.
(iii) Underground Injection Facilities.
(5) The protection of water quality shall include the maintenance,
migration, protection, and propagation of desirable species, including
threatened and endangered species identified in the local and federal
regulations.
(b) Definitions.
(1) All the definitions included in Article 1 of the Puerto Rico
Water Quality Standards Regulation (PRWQSR), as amended, are applicable
to this procedure.
(2) High Quality Waters:
(i) Are waters whose quality is better than the mandatory minimum
level to support the CWA Section 101(a)(2) goals of propagation of
fish, shellfish, wildlife and recreation in and on the waters. High
Quality Waters are to be identified by EQB on a parameter-by-parameter
basis.
(ii) [Reserved].
(3) Outstanding National Resources Waters (ONRWs):
(i) Are waters classified as SA or SE in the PRWQSR, as amended, or
any other water designated by Resolution of the Governing Board of EQB.
ONRWs are waters that are recreationally or ecologically important,
unique or sensitive.
(ii) [Reserved].
(c) Antidegradation Review Procedure
(1) The antidegradation review will commence with the submission of
the CWA Section 401 water quality certification request. EQB uses a
parameter-by-parameter approach for the implementation of the anti-
degradation policy and will review each parameter separately as it
evaluates the request for certification. The 401 certification/
antidegradation review shall comply with Article 4(B)(3) of the

[[Page 70525]]

Puerto Rico Environmental Public Policy Act (Law No. 416 of September
22, 2004, as amended (12 LPRA 8001 et seq.)). Compliance with Article
4(B)(3) shall be conducted in accordance with the Reglamento de la
Junta de Calidad Ambiental para el Proceso de Presentación,
Evaluación y Trámite de Documentos Ambientales (EQB's
Environmental Documents Regulation). As part of the evaluation of the
Environmental Document an alternatives analysis shall be conducted (12
LPRA 8001(a)(5), EQB's Environmental Documents Regulation, e.g., Rules
211E and 253C), and a public participation period and a public hearing
shall be provided (12 LPRA 8001(a), EQB's Environmental Documents
Regulation, Rule 254).
(2) In conducting an antidegradation review, EQB will sequentially
apply the following steps:
(i) Determine which level of antidegradation applies
(A) Tier 1--Protection of Existing and Designated Uses.
(B) Tier 2--Protection of High Quality Waters.
(C) Tier 3--Protection of ONRWs.
(ii) [Reserved].
(3) Review existing water quality data and other information
submitted by the applicant. The applicant shall provide EQB with the
information regarding the discharge, as required by the PRWQSR
including, but not limited to the following:
(i) A description of the nature of the pollutants to be discharged.
(ii) Treatment technologies applied to the pollutants to be discharged.
(iii) Nature of the applicant's business.
(iv) Daily maximum and average flow to be discharged.
(v) Effluent characterization.
(vi) Effluent limitations requested to be applied to the discharge
according to Section 6.11 of the PRWQSR.
(vii) Location of the point of discharge.
(viii) Receiving waterbody name.
(ix) Water quality data of the receiving waterbody.
(x) Receiving waterbody minimum flow (7Q2 and 7Q10) for stream waters.
(xi) Location of water intakes within the waterbody.
(xii) In the event that the proposed discharge will result in the
lowering of water quality, data and information demonstrating that the
discharge is necessary to accommodate important economic or social
development in the area where the receiving waters are located.
(4) Determine if additional information or assessment is necessary
to make the decision.
(5) Prepare an intent to issue or deny the 401 water quality
certificate and publish a notice in a newspaper of wide circulation in
Puerto Rico informing the public of EQB's preliminary decision and
granting a public participation period of at least thirty (30) days.
(6) Address the comments received from the interested parties and
consider such comments as part of the decision making process.
(7) Make the final determination to issue or deny the requested 401
certification. Such decision is subject to the reconsideration
procedure established in Law 170 of August 12, 1988, Ley de
Procedimiento Administrativo Uniforme del Estado Libre Asociado de
Puerto Rico (3 LPRA 2165).
(d) Implementation Procedures.
(1) Activities Regulated by NPDES Permits
(i) Tier 1--Protection of Existing and Designated Uses:
(A) Tier 1 waters are:
(1) Those waters of Puerto Rico (except Tier 2 or Tier 3 waters)
identified as impaired and that have been included on the list required
by Section 303(d) of the CWA; and
(2) Those waters of Puerto Rico (except Tier 2 and Tier 3 waters)
for which attainment of applicable water quality standards has been or
is expected to be, achieved through implementation of effluent
limitations more stringent than technology-based controls (Best
Practicable Technology, Best Available Technology and Secondary Treatment).

(B) To implement Tier 1 antidegradation, EQB shall determine if
a discharge would lower the water quality to the extent that it
would no longer be sufficient to protect and maintain the existing
and designated uses of that waterbody.
(C) When a waterbody has been affected by a parameter of concern
causing it to be included on the 303(d) List, then EQB will not
allow an increase of the concentration of the parameter of concern
or pollutants affecting the parameter of concern in the waterbody.
This no increase will be achieved by meeting the applicable water
quality standards at the end of the pipe. Until such time that a
Total Maximum Daily Load (TMDL) is developed for the parameter of
concern for the waterbody, no discharge will be allowed to cause or
contribute to further degradation of the waterbody.
(D) When the assimilative capacity of a waterbody is not
sufficient to ensure maintenance of the water quality standard for a
parameter of concern with an additional load to the waterbody, EQB
will not allow an increase of the concentration of the parameter of
concern or pollutants affecting the parameter of concern in the
waterbody. This no increase will be achieved by meeting the
applicable water quality standards at the end of the pipe. Until
such time that a TMDL is developed for the parameter of concern for
the waterbody, no discharge will be allowed to cause or contribute
to further degradation of the waterbody.
(ii) Tier 2--Protection of High Quality Waters:
(A) To verify that a waterbody is a high quality water for a
parameter of concern which initiates a Tier 2 antidegradation
review, EQB shall evaluate and determine:

(1) The existing water quality of the waterbody;
(2) The projected water quality of the waterbody pursuant to the
procedures established in the applicable provisions of Articles 5 and
10 of the PRWQSR including but not limited to, Sections 5.2, 5.3, 5.4,
10.2, 10.3, 10.4, 10.5, and 10.6;
(3) That the existing and designated uses of the waterbody will be
fully maintained and protected in the event of a lowering of water quality.
In multiple discharge situations, the effects of all discharges
shall be evaluated through a waste load allocation analysis in
accordance with the applicable provisions of Article 10 of the PRWQSR
or the applicable provisions of Article 5 regarding mixing zones.
(B) In order to allow the lowering of water quality in high quality
waters, the applicant must show and justify the necessity for such
lowering of water quality through compliance with the requirements of
Section 6.11 of the PRWQSR. EQB will not allow the entire assimilative
capacity of a waterbody for a parameter of concern to be allocated to a
discharger, if the necessity of the requested effluent limitation for
the parameter of concern is not demonstrated to the full satisfaction
of EQB.
(iii) Tier 3--Protection of ONRWs:
(A) EQB may designate a water as Class SA or SE (ONRWs) through a
Resolution (PRWQSR Sections 2.1.1 and 2.2.1). Additionally, any
interested party may nominate a specific water to be classified as an
ONRW and the Governing Board of EQB will make the final determination.
Classifying a water as an ONRW may result in the water being named in
either Section 2.1.1 or 2.2.2 of the PRWQSR, which would require an
amendment of the PRWQSR. The process for amending the PRWQSR, including
public participation, is set forth in Section 8.6 of said regulation.
(B) The existing characteristics of Class SA and SE waters shall
not be altered, except by natural causes, in order to preserve the
existing natural phenomena.
(1) No point source discharge will be allowed in ONRWs.

[[Page 70526]]

(2) [Reserved].
(2) Activities Regulated by CWA Section 404 or Rivers and Harbors
Action Section 10 Permits (Discharge of Dredged or Fill Material)
(i) EQB will only allow the discharge of dredged or fill material
into a wetland if it can be demonstrated that such discharge will not
have an unacceptable adverse impact either individually or in
combination with other activities affecting the wetland of concern. The
impacts to the water quality or the aquatic or other life in the
wetland due to the discharge of dredged or fill material should be
avoided, minimized and mitigated.
(ii) The discharge of dredged or fill material shall not be
certified if there is a practicable alternative to the proposed
discharge which would have less adverse impact on the recipient
ecosystem, so long as the alternative does not have other more
significant adverse environmental consequences. Activities which are
not water dependent are presumed to have practicable alternatives,
unless the applicant clearly demonstrates otherwise. No discharge of
dredged and fill material shall be certified unless appropriate and
practicable steps have been taken which minimize potential adverse
impacts of the discharge on the recipient ecosystem. The discharge of
dredged or fill material to ONRWs, however, shall be governed by
paragraph (d)(1)(iii) of this section.

[FR Doc. E7-24097 Filed 12-11-07; 8:45 am]
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