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Executive
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Current
Laws
and
Regulations
Water
Quality
Standards
for
Puerto
Rico
[
Federal
Register:
January
26,
2004
(
Volume
69,
Number
16)]
[
Rules
and
Regulations]
[
Page
3514­
3525]
From
the
Federal
Register
Online
via
GPO
Access
[
wais.
access.
gpo.
gov]
[
DOCID:
fr26ja04­
3]

ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
131
[
FRL­
7613­
2]

Water
Quality
Standards
for
Puerto
Rico
AGENCY:
Environmental
Protection
Agency.

ACTION:
Final
rule.

SUMMARY:
The
Environmental
Protection
Agency
(
EPA)
is
promulgating
designated
uses
and
associated
water
quality
criteria
for
six
waterbodies
and
an
area
of
coastal
waters
known
as
the
coastal
ring
in
the
Commonwealth
of
Puerto
Rico.
These
waterbodies
are:
Mayaguez
Bay
(
from
Punta
Guanajibo
to
Punta
Algarrobo);
Yabucoa
Port
(
from
Punta
Icacos
to
Punta
Yeguas);
Guayanilla
and
Tallaboa
Bays
(
from
Cayo
Parguera
to
Punta
Verraco);
Ponce
Port
(
from
Punta
Carenero
to
Punta
Cuchara)
and
San
Juan
Port
(
from
the
mouth
of
R[
iacute]
o
Bayam[
oacute]
n
to
Punta
El
Morro),
as
well
as
the
area
of
coastal
waters
known
as
the
coastal
ring,
defined
as
all
coastal
waters
from
500
meters
seaward
to
a
maximum
of
three
miles
seaward.
Through
this
promulgation,
the
Federally
designated
use
of
primary
contact
recreation
and
the
associated
water
quality
criteria
are
added
to
the
Commonwealth's
designated
uses
for
the
previously
referenced
embayments
and
the
coastal
ring
(
referred
to
collectively
in
this
preamble
as
the
``
Subject
Waterbodies'').

DATES:
This
regulation
is
effective
March
26,
2004.

ADDRESSES:
The
public
record
for
this
rulemaking
has
been
established,
is
located
at
EPA
Region
2,
290
Broadway,
New
York,
New
York
10007,
and
Carribean
Environmental
Protection
Division,
U.
S.
EPA
Region
2,
1492
Ponce
De
Leon
Avenue,
Suite
417,
Santurce,
Puerto
Rico
00907,
and
can
be
viewed
between
9
a.
m.
and
3:
30
p.
m.
at
both
locations.

FOR
FURTHER
INFORMATION
CONTACT:
For
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
Claudia
Fabiano,
U.
S.
EPA
Headquarters,
Office
of
Science
and
Technology,
1200
Pennsylvania
Avenue
NW.,
Mail
Code
4305T,
Washington,
DC
20460
(
telephone:
202­
566­
0446
or
e­
mail:
fabiano.
claudia@
epa.
gov).

SUPPLEMENTARY
INFORMATION:

Table
of
Contents
I.
General
Information
A.
Who
Is
Potentially
Affected
by
This
Rule?
B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?
1.
Docket
2.
Electronic
Access
II.
Background
A.
Statutory
and
Regulatory
Background
B.
Current
Puerto
Rico
Water
Quality
Standards
C.
Factual
Background
1.
Summary
of
Commonwealth
and
EPA
Administrative
Actions
2.
Summary
of
Legal
Actions
III.
Use
Designations
and
Criteria
That
EPA
Is
Promulgating
Today
A.
Use
Designations
and
Criteria
That
EPA
Proposed
in
October
2003
B.
Comments
Received
in
Response
to
EPA's
October
2003
Proposal
IV.
Alternative
Regulatory
Approaches
and
Implementation
Mechanisms
A.
Designating
Uses
B.
Site­
Specific
Criteria
C.
Variances
V.
Economic
Analysis
A.
Identifying
Affected
Facilities
B.
Method
for
Estimating
Potential
Compliance
Costs
C.
Results
VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
From
Environmental
Health
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
I.
National
Technology
Transfer
and
Advancement
Act
J.
Congressional
Review
Act
I.
General
Information
A.
Who
Is
Potentially
Affected
by
This
Rule?

Citizens
concerned
with
water
quality
in
Puerto
Rico
may
be
interested
in
this
rulemaking.
Facilities
discharging
pollutants
to
certain
waters
of
the
United
States
in
Puerto
Rico
could
be
indirectly
affected
by
this
rulemaking
since
water
quality
standards
are
used
in
determining
water
quality­
based
National
Pollutant
Discharge
[[
Page
3515]]

Elimination
System
(
NPDES)
permit
limits.
Categories
and
entities
that
may
indirectly
be
affected
include:

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Examples
of
potentially
Category
regulated
entities
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Industry...............................
Industries
discharging
pollutants
to
the
waters
identified
in
Sec.
131.40.
Municipalities.........................
Publicly­
owned
treatment
works
discharging
pollutants
to
the
waters
identified
in
Sec.
131.40.
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

This
table
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
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
the
waterbodies
identified
in
Sec.
131.40
of
today's
rule.
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
one
of
the
persons
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.
OW­
2003­
0072.
The
official
public
docket
consists
of
the
documents
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
the
Division
of
Environmental
Planning
and
Protection,
U.
S.
EPA
Region
2,
290
Broadway,
New
York,
New
York
10007,
and
the
Carribean
Environmental
Protection
Division,
U.
S.
EPA
Region
2,
1492
Ponce
De
Leon
Avenue,
Suite
417,
Santurce,
Puerto
Rico
00907.
These
Docket
Facilities
are
open
from
9
a.
m.
to
3:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
Docket
telephone
numbers
are
212­
637­
3807
and
787­
977­
5836,
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.
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
one
of
the
docket
facilities
identified
in
Section
I.
B.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.

II.
Background
A.
Statutory
and
Regulatory
Background
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)
provides
that
water
quality
standards
shall
include
the
designated
use
or
uses
to
be
made
of
the
water
and
water
quality
criteria
necessary
to
protect
those
uses.
The
designated
uses
to
be
considered
by
States
in
establishing
water
quality
standards
are
specified
in
the
Act:
public
water
supplies,
propagation
of
fish
and
wildlife,
recreation,
agricultural
uses,
industrial
uses
and
navigation.
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
have
been
disapproved
or
in
any
case
where
the
Administrator
determines
that
a
new
or
revised
standard
is
needed
to
meet
the
CWA's
requirements.
In
an
August
11,
2003,
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
for
those
waters
which
are
currently
classified
as
``
Class
SC''
(
secondary
contact
recreation)
waters
by
the
Commonwealth
of
Puerto
Rico.
EPA
is,
therefore,
promulgating
Federal
water
quality
standards
for
these
waters
in
Puerto
Rico.
EPA
regulations
implementing
CWA
section
303(
c)
are
published
at
40
CFR
part
131.
Under
these
rules,
the
minimum
elements
that
must
be
included
in
a
State's
water
quality
standards
include:
use
designations
for
all
waterbodies
in
the
State,
water
quality
criteria
sufficient
to
protect
those
use
designations,
and
an
antidegradation
policy
(
see
40
CFR
131.6).
Water
quality
standards
establish
the
``
goals''
for
a
waterbody
through
the
establishment
of
designated
uses.
Designated
uses,
in
turn,
determine
what
water
quality
criteria
apply
to
specific
waterbodies.
Section
101(
a)(
2)
of
the
Act
establishes
as
a
national
goal
``
water
quality
which
provides
for
the
protection
and
propagation
of
fish,
shellfish,
and
wildlife
and
*
*
*
recreation
in
and
on
the
water,''
wherever
attainable.
These
national
goals
are
commonly
referred
to
as
the
``
fishable/
swimmable''
goals
of
the
Act.
Section
303(
c)(
2)(
A)
requires
water
quality
standards
to
``
protect
the
public
health
or
welfare,
enhance
the
quality
of
water,
and
serve
the
purposes
of
this
[
Act].''
EPA's
regulations
at
40
CFR
part
131
interpret
and
implement
these
provisions
by
requiring
that
water
quality
standards
provide
for
fishable/
swimmable
uses
unless
those
uses
have
been
shown
to
be
unattainable.
The
mechanism
in
EPA's
regulations
used
to
overcome
this
presumption
is
a
use
attainability
analysis
(
UAA).
Under
40
CFR
131.10(
j),
States
are
required
to
conduct
a
UAA
whenever
the
State
designates
or
has
designated
uses
that
do
not
include
the
uses
specified
in
section
101(
a)(
2)
of
the
CWA
or
when
the
State
wishes
to
remove
a
designated
use
that
is
specified
in
section
101(
a)(
2)
of
the
CWA
or
adopt
subcategories
of
uses
that
require
less
stringent
criteria.
Uses
are
considered
by
EPA
to
be
attainable,
at
a
minimum,
if
the
uses
can
be
achieved
(
1)
when
effluent
limitations
under
section
301(
b)(
1)(
A)
and
(
B)
and
section
306
are
imposed
on
point
source
dischargers
and
(
2)
when
cost
effective
and
reasonable
best
management
practices
are
imposed
on
nonpoint
source
dischargers.
40
CFR
131.10
lists
grounds
upon
which
to
base
a
finding
that
attaining
the
designated
use
is
not
[[
Page
3516]]

feasible,
as
long
as
the
designated
use
is
not
an
existing
use:
(
i)
Naturally
occurring
pollutant
concentrations
prevent
the
attainment
of
the
use;
(
ii)
Natural,
ephemeral,
intermittent
or
low
flow
conditions
or
water
levels
prevent
the
attainment
of
the
use,
unless
these
conditions
may
be
compensated
for
by
the
discharge
of
sufficient
volume
of
effluent
discharges
without
violating
State
water
conservation
requirements
to
enable
uses
to
be
met;
(
iii)
Human
caused
conditions
or
sources
of
pollution
prevent
the
attainment
of
the
use
and
cannot
be
remedied
or
would
cause
more
environmental
damage
to
correct
than
to
leave
in
place;
(
iv)
Dams,
diversions
or
other
types
of
hydrologic
modifications
preclude
the
attainment
of
the
use,
and
it
is
not
feasible
to
restore
the
waterbody
to
its
original
condition
or
to
operate
such
modification
in
a
way
which
would
result
in
the
attainment
of
the
use;
(
v)
Physical
conditions
related
to
the
natural
features
of
the
waterbody,
such
as
the
lack
of
a
proper
substrate,
cover,
flow,
depth,
pools,
riffles,
and
the
like
unrelated
to
water
quality,
preclude
attainment
of
aquatic
life
protection
uses;
or
(
vi)
Controls
more
stringent
than
those
required
by
sections
301(
b)
and
306
of
the
CWA
would
result
in
substantial
and
widespread
economic
and
social
impact.
A
UAA
is
defined
in
40
CFR
131.3(
g)
as
a
``
structured
scientific
assessment
of
the
factors
affecting
the
attainment
of
a
use
which
may
include
physical,
chemical,
biological,
and
economic
factors'
(
see
Sec.
Sec.
131.3
and
131.10).
In
a
UAA,
the
physical,
chemical
and
biological
factors
affecting
the
attainment
of
a
use
are
evaluated
through
a
waterbody
survey
and
assessment.
Guidance
on
waterbody
survey
and
assessment
techniques
is
contained
in
the
Technical
Support
Manual,
Volumes
I­
III:
Water
Body
Surveys
and
Assessments
for
Conducting
Use
Attainability
Analyses.
Volume
I
provides
information
on
waterbodies
in
general;
Volume
II
contains
information
on
estuarine
systems;
and
Volume
III
contains
information
on
lake
systems
(
Volumes
I­
II,
November
1983;
Volume
III,
November
1984).
Additional
guidance
is
provided
in
the
Water
Quality
Standards
Handbook:
Second
Edition
(
EPA­
823­
B­
94­
005,
August
1994).
Guidance
on
economic
factors
affecting
the
attainment
of
a
use
is
contained
in
the
Interim
Economic
Guidance
for
Water
Quality
Standards:
Workbook
(
EPA­
823­
B­
95­
002,
March
1995).
In
developing
today's
proposal,
EPA
followed
the
same
procedures
set
out
for
States
in
40
CFR
part
131
and
EPA's
implementing
policies,
procedures,
and
guidance.
EPA
regulations
effectively
establish
a
``
rebuttable
presumption''
that
fishable/
swimmable
uses
are
attainable
and,
therefore,
should
apply
to
a
waterbody
unless
it
is
demonstrated
that
such
uses
are
not
attainable.
EPA
adopted
this
approach
to
help
achieve
the
national
goal
articulated
by
Congress
that,
``
wherever
attainable,''
water
quality
provide
for
the
``
protection
and
propagation
of
fish,
shellfish
and
wildlife''
and
for
``
recreation
in
and
on
the
water.''
CWA
section
101(
a).
While
facilitating
achievement
of
Congress'
goals,
the
rebuttable
presumption
approach
preserves
States'
paramount
role
in
establishing
water
quality
standards
in
weighing
any
available
evidence
regarding
the
attainable
uses
of
a
particular
waterbody.
The
rebuttable
presumption
approach
does
not
restrict
the
discretion
that
States
have
to
determine
that
fishable/
swimmable
uses
are
not,
in
fact,
attainable
in
a
particular
case.
Rather,
if
the
water
quality
goals
articulated
by
Congress
are
not
to
be
met
in
a
particular
waterbody,
the
regulations
simply
require
that
such
a
determination
be
based
upon
a
credible
``
structured
scientific
assessment''
of
use
attainability.
EPA's
approach
in
this
rulemaking
does
not
undermine
the
Commonwealth's
primary
role
in
designating
uses
and
setting
criteria
for
waters
in
Puerto
Rico.
If
the
Commonwealth
reclassifies
the
Subject
Waterbodies
to
a
swimmable
designated
use
or
adopts
criteria
sufficient
to
protect
a
swimmable
use,
EPA
would
expect
to
approve
the
Commonwealth's
action
and
initiate
a
rulemaking
to
rescind
today's
rule.
Alternatively,
the
Commonwealth
might
complete
a
sound
analysis
of
use
attainability
(
taking
into
account
appropriate
biological,
chemical
and
physical
factors)
and
conclude
that
the
swimmable
use
is
not
attainable
for
these
waterbodies.
In
this
case,
EPA
would
expect
to
approve
the
Commonwealth's
action
(
assuming
it
meets
all
requirements
of
EPA's
regulations
at
40
CFR
part
131)
and
initiate
a
rulemaking
to
rescind
today's
rule.
EPA
encourages
the
Commonwealth
to
continue
evaluating
the
appropriate
use
designation
for
these
waterbodies.

B.
Current
Puerto
Rico
Water
Quality
Standards
Puerto
Rico's
water
quality
standards
regulation
(
PRWQSR)
at
Article
2
establishes
a
classification
system
containing
the
designated
uses
for
waterbodies
in
the
Commonwealth.
Puerto
Rico
has
applied
these
use
designations
to
all
coastal,
estuarine,
and
surface
waters
of
the
Commonwealth.
The
current
use
designation
adopted
by
the
Commonwealth
for
the
Subject
Waterbodies
is
Class
SC.
Coastal
waters
designated
as
Class
SC
are
``
intended
for
uses
where
the
human
body
may
come
into
indirect
contact
with
the
water
(
such
as
fishing,
boating,
etc.)
and
for
use
in
propagation
and
preservation
of
desirable
species,
including
threatened
or
endangered
species.''
(
PRWQSR,
at
Article
3.2.3.)
The
Class
SC
designation,
however,
does
not
provide
protection
from
pathogens
associated
with
fecal
contamination
during
direct
contact
with
the
water.
Therefore,
Class
SC
does
not
protect
for
the
swimming
use.
EPA's
regulations
at
40
CFR
part
131
require
that
waters
designated
for
a
use
less
protective
than
``
fishable/
swimmable''
be
supported
by
a
use
attainability
analysis.
``
Fishing''
and
``
propagation
and
preservation
of
desirable
species''
are
included
as
a
condition
of
the
best
usage
for
Class
SC
waters.
Therefore,
Class
SC
includes
the
``
fishable''
use
established
as
a
goal
in
the
Clean
Water
Act;
however,
it
does
not
include
the
``
swimmable''
use.
Puerto
Rico
uses
fecal
coliform
and
enterococci
bacteria
criteria
to
protect
for
the
primary
contact
recreation
use.
Class
SC
includes
bacteria
criteria
sufficient
to
protect
secondary
contact
recreation
(
e.
g.,
boating)
but
not
primary
contact
recreation
(
e.
g.,
swimming).
Criteria
used
for
Class
SC
do
not
provide
for
protection
from
pathogens
associated
with
fecal
contamination
during
direct
contact
with
the
water
and,
therefore,
do
not
protect
for
the
primary
contact
recreation
use.
Section
3.2.3
of
the
PRWQSR
contains
the
use
classifications
and
associated
use­
specific
criteria
for
Class
SC
waters
for
dissolved
oxygen,
fecal
coliforms,
pH,
color,
turbidity,
taste
and
odor
producing
substances,
sulfates,
and
surfactants
as
MBAS
(
methylene
blue
active
substances).
With
the
exception
of
the
criteria
for
fecal
coliforms,
which
are
not
fully
protective
of
the
primary
contact
recreation
use,
these
criteria
for
Class
SC
waters
have
been
found
to
be
protective
of
CWA
section
101(
a)
uses
and
have
been
previously
approved
by
EPA.
These
criteria
are
intended
to
protect
aquatic
life
and/
or
general
aesthetic
conditions
in
these
waters.
Bacteria
is
the
only
parameter
that
is
specifically
intended
to
protect
for
primary
contact
recreation.
Water
quality
criteria
for
bacteria
are
intended
to
protect
bathers
from
gastrointestinal
[[
Page
3517]]

illness
in
recreational
waters
and
they
establish
levels
of
indicator
bacteria
that
demonstrate
the
presence
of
fecal
contamination.
Waterbodies
should
not
exceed
these
levels
if
they
are
to
protect
bathers
in
fresh
and
marine
recreational
waters.
Including
primary
contact
recreation
as
a
use
for
Class
SC
waters
and
applying
the
indicator
bacteria
criteria
described
above
would
result
in
the
Class
SC
waters
being
fully
``
swimmable.''
The
remainder
of
the
criteria
that
Puerto
Rico
applies
to
its
coastal
waters
are
sufficient
to
protect
other
CWA
section
101(
a)
uses,
such
as
aquatic
life
and
human
health
protection
from
consuming
fish
based
on
the
level
of
toxic
pollutants
in
the
water
and
in
the
fish
tissue.
Section
3.1
of
the
PRWQSR
contains
narrative
water
quality
criteria
and
numeric
criteria
for
substances
in
toxic
concentrations
including
inorganic
substances,
pesticides,
non­
pesticide
organic
substances,
carbon
tetrachloride,
volatile
organic
substances,
and
semi­
volatile
organic
substances.
The
criteria
in
section
3.1
are
applicable
to
all
waters
of
Puerto
Rico,
including
those
waters
classified
as
Class
SC.
These
criteria
are
protective
of
all
applicable
uses
and
have
been
approved
by
EPA.
Puerto
Rico's
Environmental
Quality
Board
(
EQB)
applies
the
Class
SC
designation
for
the
bay
components
of
the
Subject
Waterbodies
from
the
zone
subject
to
the
ebb
and
flow
of
tides
(
mean
sea
level)
to
10.3
nautical
miles
seaward,
and
from
500m
from
the
shoreline
to
10.3
nautical
miles
seaward
for
the
coastal
ring.
However
it
is
clear
that
State
jurisdiction
under
the
CWA
is
limited
to
``
navigable
waters''
of
the
United
States,
including
territorial
seas
which
extend
only
three
miles
seaward.
Accordingly,
in
this
rulemaking,
the
new
use
designation
for
coastal
waters
is
limited
to
the
territorial
seas.
Section
303(
c)(
2)(
A)
of
the
CWA
provides
that
States
are
to
adopt
water
quality
standards
for
``
navigable
waters.''
Under
CWA
section
303(
c)(
3)
providing
for
EPA
review
of
State
water
quality
standards,
if
EPA
approves
a
State's
water
quality
standards,
they
become
the
standards
for
the
applicable
waters
of
the
State.
Where
the
Administrator
proposes
and
promulgates
water
quality
standards,
CWA
section
303(
c)(
4)
provides
that
the
State
water
quality
standards
shall
apply
to
``
navigable
waters.''
Section
502(
7)
of
the
CWA
defines
``
navigable
waters''
as
waters
of
the
United
States,
including
the
``
territorial
seas.''
Section
502(
8)
defines
``
territorial
seas''
to
mean
``
the
belt
of
the
seas
measured
from
the
line
of
ordinary
low
water
along
that
portion
of
the
coast
which
is
in
direct
contact
with
the
open
sea
and
the
line
marking
the
seaward
limit
of
inland
waters,
and
extending
seaward
a
distance
of
three
miles.''
The
``
contiguous
zone''
and
``
ocean''
are
defined
separately
[
see
sections
502(
9)
and
(
10)].
The
CWA
also
includes
two
other
definitions
(
for
``
effluent
limitations''
and
``
discharge
of
a
pollutant'')
that
distinguish
navigable
waters
from
the
contiguous
zone
and
the
ocean.
These
definitions
also
indicate
that
navigable
waters
are
not
meant
to
include
the
contiguous
zone
and
the
ocean.
EPA's
long
standing
interpretation
of
the
statute
does
not
include
the
contiguous
zone
and
ocean
in
the
definition
of
navigable
waters
(
see
40
CFR
122.2).
The
CWA
authorizes
each
State
electing
to
administer
its
own
NPDES
permit
program
for
discharges
into
navigable
waters
within
its
jurisdiction
to
submit
its
program
for
EPA
review
[
see
section
402(
b)].
If
EPA
approves
the
State
program,
EPA
suspends
its
issuance
of
permits
under
section
402(
a),
but
only
as
to
those
navigable
waters
subject
to
the
State
program
[
see
section
402(
c)(
1)].
While
the
CWA
definition
of
navigable
waters
includes
the
territorial
sea,
it
does
not
include
the
contiguous
zone
or
the
ocean,
both
of
which
are
defined
as
regions
beyond
the
territorial
sea.
Read
together,
these
provisions
plainly
indicate
that
Congress
intended
the
State
NPDES
program
jurisdiction
to
be
limited
to
navigable
waters
including
the
territorial
sea.
States
cannot
assume
NPDES
permitting
authority
beyond
the
three­
mile
limit
of
the
territorial
sea.
Two
decisions
in
the
Ninth
Circuit
Court
have
addressed
these
jurisdictional
issues.
In
Pacific
Legal
Foundation,
et
al.
v.
Costle,
586
F.
2d
657
(
9th
Cir.
1978)
reversed
on
other
grounds,
445
U.
S.
198,
the
Court
held
that
only
the
Administrator
has
authority
to
issue
NPDES
permits
for
waters
beyond
the
territorial
seas.
The
Court
also
held
that
the
contiguous
zone
and
the
ocean
clearly
extend
beyond
the
outer
limits
of
the
``
navigable
waters''
that
mark
the
extent
of
the
power
of
States
to
administer
their
own
permit
programs.
The
Court
noted
that
``
*
*
*
had
Congress
intended
the
power
of
the
States
to
extend
beyond
the
territorial
seas,
it
easily
could
have
so
provided.''
Id.
at
656.
Further,
citing
the
definition
of
``
discharge
of
a
pollutant,''
which
distinguishes
discharges
to
navigable
waters
from
discharges
to
the
contiguous
zone
or
the
ocean,
the
Court
concluded
that
``
it
is
apparent
that
``
ocean''
and
``
contiguous
zone''
waters
are
not
included
within
the
scope
of
``
navigable
waters'
*
*
*
''
Id.
In
Natural
Resources
Defense
Council
v.
EPA,
863
F.
2d
1420,
(
9th
Cir.
1988),
the
Court
held
that
``
navigable
waters''
include
only
those
waters
landward
from
the
territorial
sea.
Id.
at
1435.
In
this
case,
Florida
argued
that
it
had
jurisdiction
to
apply
water
quality
standards
more
than
three
miles
from
the
coast.
The
State
contended
that
its
maritime
boundaries
extended
three
maritime
leagues
(
approximately
10.3
miles).
Florida
maintained
that
EPA
must
assure
that
discharges
under
EPA's
general
permit
would
comply
with
the
State's
water
quality
standards
out
to
10.3
miles.
The
Court
disagreed,
finding
that
the
State's
jurisdiction
is
limited
to
the
territorial
seas.
The
Court
noted
that
it
is
``
*
*
*
difficult
to
ignore
the
express
language
of
the
Clean
Water
Act's
definition
of
territorial
seas.''
And,
further,
that
``
*
*
*
if
there
were
any
doubt
that
Congress
intended
to
create
a
uniform
three­
mile
boundary
in
the
(
CWA),
the
legislative
history
*
*
*
indicates
Congress
consciously
defined
the
term
`
territorial
seas'
to
make
clear
the
jurisdiction
limits
of
this
particular
legislation
and
its
relationship
to
other
statutes.''
Id.
at
1436.
For
these
reasons,
EPA
is
promulgating
the
new
use
designation
for
coastal
waters
limited
to
the
territorial
seas.
EPA
is
promulgating
primary
contact
recreation
as
a
specified
designated
use
for
the
Subject
Waterbodies.
In
developing
today's
rule,
EPA
evaluated
the
PRWQSR
to
determine
which
bacteria
criteria
would
protect
for
the
``
swimmable''
use
and
would,
therefore,
ensure
achievement
of
the
CWA
section
101(
a)(
2)
goals.
As
a
result,
EPA
is
promulgating
the
bacteriological
criteria
associated
with
Class
SB
(
primary
contact
recreation)
for
fecal
coliform
and
enterococci
set
out
at
Section
3.2.2
of
the
PRWQSR
for
the
Subject
Waterbodies
because
these
criteria
protect
primary
contact
recreation.
The
water
quality
standards
EPA
is
promulgating
for
these
waterbodies
will
be
the
basis
for
establishing
NPDES
permit
limits
by
EPA
Region
2.

C.
Factual
Background
1.
Summary
of
Commonwealth
and
EPA
Administrative
Actions
In
August
1990,
the
Commonwealth
of
Puerto
Rico
adopted
revisions
to
the
PRWQSR.
These
were
sent
to
EPA
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
have
public
hearings
on
November
1,
1990.
Because
of
this
caveat,
and
because
the
requisite
certification
from
the
Commonwealth's
Secretary
of
Justice
[[
Page
3518]]

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
draft
revisions
to
the
PRWQSR.
These
drafts
were
never
adopted
by
Puerto
Rico.
In
1992,
EPA
included
Puerto
Rico
in
the
National
Toxics
Rule,
in
large
part
because
EPA
did
not
consider
the
1990
revisions
to
be
officially
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
11
separate
new
or
revised
provisions.
The
1990
revisions
to
the
PRWQSR,
however,
did
not
include
any
changes
to
the
designation
of
specific
waterbody
segments,
including
upgrades
from
Class
SC
to
SB.
On
March
28,
2003,
EQB
submitted
additional
revisions
to
the
PRWQSR
that
EPA
approved
on
June
26,
2003.
These
revisions
included
the
reclassification
of
ten
bays/
estuaries,
previously
classified
as
Class
SC
waters,
to
Class
SB
(
Article
2.1.3).
These
included:
ÿ
Aguadilla
Bay
(
from
Punta
Boquer[
oacute]
n
to
Punta
Borinquen);
ÿ
Arecibo
Bay
(
from
Punta
Maracayo
to
Punta
Caracoles);
ÿ
Fajardo
Bay
(
from
Playa
Sardinera
to
Playa
de
Fajardo);
ÿ
Roosevelt
Roads
(
from
Punta
Cabra
de
Tierra
to
Punta
Cascajo);
ÿ
Port
of
Naguabo
(
from
Playa
de
Naguabo
to
El
Morrillo);
ÿ
Jobos
Bay
and
Laguna
de
la
Mareas
(
from
Punta
Rodeo
to
Punta
Colchones);
ÿ
Gu[
aacute]
nica
Bay
inland
waters
north
of
the
mouth
of
the
river;
ÿ
Port
of
Dewey
in
Culebra;
and
ÿ
Port
of
Isabel
Segunda
in
Vieques
and
Puerto
Real
in
Vieques
between
Cayo
de
Tierra
and
Cayo
Real.
While
the
March
28,
2003,
revisions
to
the
PRWQSR
did
address
ten
bays/
estuaries
previously
classified
as
Class
SC
waters
by
reclassifying
them
to
Class
SB,
Puerto
Rico
recognized
that
it
still
needed
to
address
the
Subject
Waterbodies.
In
an
effort
to
do
so,
EQB,
in
its
State
Fiscal
Year
2003
CWA
Section
604(
b)
Consolidated
Workplan,
committed
to
develop
a
plan
to
outline
a
schedule
for
data
collection
and
analysis
and
identify
the
applicable
regulatory
actions
for
these
waters.
EQB
is
currently
completing
this
plan.
2.
Summary
of
Legal
Actions
On
February
20,
2002,
a
complaint
was
filed
in
the
U.
S.
District
Court
for
the
District
of
Puerto
Rico
by
three
environmental
groups:
CORALations,
American
Littoral
Society,
and
the
American
Canoe
Association.
In
this
action,
the
plaintiffs
alleged,
among
other
things,
that
certain
actions
by
EPA
personnel
had
triggered
a
mandatory
duty
under
section
303(
c)
of
the
CWA
for
EPA
to
prepare
and
propose
regulations
setting
forth
a
revised
water
quality
standard
for
any
coastal
waters
that
remained
classified
SC.
The
Court,
in
its
August
11,
2003,
Opinion
and
Order,
ordered
EPA
to
prepare
and
publish
new
or
revised
water
quality
standards
for
those
coastal
waters
which
are
currently
classified
as
Class
SC
waters.

III.
Use
Designations
and
Criteria
for
Waters
That
EPA
Is
Promulgating
Today
A.
Use
Designations
and
Criteria
That
EPA
Proposed
in
October
2003
EPA
evaluated
all
available
data
and
information
to
determine
whether
the
swimmable
use
is
attainable
in
the
Subject
Waterbodies.
EPA's
analysis
was
informed
by
the
regulatory
provisions
at
40
CFR
part
131
and
technical
guidance
that
EPA
provided
to
States
for
developing
use
attainability
analyses.
The
information
that
EPA
used
in
its
evaluation
of
the
coastal
ring
component
of
the
Subject
Waterbodies
shows
that
the
swimmable
use
is
attainable
in
these
waters.
That
information
included
all
available
Quarterly
Reports
of
the
301(
h)
Waiver
Demonstration
Studies
for
five
Regional
Wastewater
Treatment
Plants
that
discharge
to
the
waters
comprising
the
coastal
ring.
The
ambient
water
quality
data
collected
as
part
of
these
quarterly
reports
showed
that
the
applicable
bacteria
criteria
to
protect
primary
contact
recreation
(
fecal
coliform
and
enterococci)
were
being
attained
in
the
waters
of
the
coastal
ring
outside
of
the
designated
mixing
zones.
The
quarterly
reports
also
demonstrated
that
the
bacteria
criteria
to
protect
primary
contact
recreation
are
being
attained
at
the
edge
of
the
mixing
zone
(
based
on
the
measured
end­
of­
pipe
concentrations
of
bacteria
at
each
Regional
Wastewater
Treatment
Plant
and
the
critical
initial
dilution
that
occurs
at
each
ocean
outfall).
As
discussed
in
the
Puerto
Rico
Water
Quality
Inventory
and
List
of
Impaired
Waters­­
2002
305(
b)/
303(
d)
Integrated
Report
Final
Version
(
February
2003),
there
is
little
or
no
data
available
on
which
to
determine
the
attainability
of
the
swimmable
use
in
the
bay
components
of
the
Subject
Waterbodies.
According
to
this
report,
there
is
insufficient
data
to
determine
the
use
attainment
for
38%
of
the
coastal
miles
and
89%
of
the
estuarine
acres.
The
Subject
Waterbodies
with
insufficient
data
to
make
a
use
attainment
determination
include
Yabucoa
Port,
portions
of
Guayanilla
and
Tallaboa
Bays,
and
San
Juan
Port.
The
EQB
determined
that
the
following
Subject
Waterbodies
were
attaining
water
quality
standards:
Mayaguez
Bay,
Ponce
Port,
and
portions
of
Guayanilla
and
Tallaboa
Bays.
However,
EPA's
regulations
at
40
CFR
part
131
require
that
water
quality
standards
provide
for
fishable/
swimmable
uses
unless
those
uses
have
been
shown
to
be
unattainable,
which
effectively
creates
a
rebuttable
presumption
of
attainability.
If
the
Commonwealth
takes
into
account
the
appropriate
biological,
chemical,
and
physical
factors
in
completing
a
sound
analysis
of
use
attainability
and
concludes
that
the
swimmable
use
is
not
attainable
in
these
waterbodies,
EPA
would
expect
to
approve
the
Commonwealth's
action
(
if
it
meets
all
requirements
of
EPA's
regulations
at
40
CFR
part
131).
In
an
effort
to
properly
characterize
the
attainability
of
the
bays
which
remain
classified
SC,
EQB
is
developing
a
plan
for
data
collection
and
analysis
so
that
they
can
demonstrate
whether
the
swimmable
use
is
attainable
in
these
waters.
The
last
broad
category
of
information
considered
by
EPA
in
its
decision­
making
process
was
monitoring
data
from
a
sample
of
potentially
affected
dischargers
to
the
waterbodies
(
as
reflected
in
Discharge
Monitoring
Reports
or
DMRs).
As
discussed
in
section
V,
EPA
analyzed
the
extent
to
which
the
proposed
Federal
use
designations
and
criteria
may
lead
to
the
development
of
more
stringent
NPDES
permit
limits
and,
if
so,
what
types
of
controls
would
be
needed
by
potentially
affected
facilities
to
meet
such
limits.
Discharger
information
was
used
in
one
of
two
ways
by
the
Agency.
First,
EPA
used
monitoring
data
to
assess
point
sources
to
the
affected
waterbodies
and
to
help
determine
whether
their
pollutant
discharges
could
contribute
to
ambient
exceedances
of
criteria.
Second,
the
Agency
used
the
monitoring
data
to
determine
whether
potentially
affected
dischargers
would
need
to
make
significant
alterations
to
their
operations
(
or
if
they
could,
in
fact,
meet
permit
limits
for
bacteria
that
would
be
associated
with
the
swimmable
use).
Information
indicating
that
potentially
affected
dischargers
could
generally
meet
such
revised
limits
based
on
the
proposed
bacteria
criteria
would
[[
Page
3519]]

support
the
presumption
that
the
swimmable
use
is
attainable.
Based
upon
this
approach,
EPA
evaluated
all
available
data
and
information
to
determine
whether
the
swimmable
use
is
attainable
for
the
Subject
Waterbodies.
As
a
result,
EPA
proposed
to
include
primary
contact
recreation
as
a
specified
designated
use
for
the
Subject
Waterbodies.
In
addition,
EPA
proposed
to
include
bacteria
criteria
which
are
protective
of
primary
contact
recreation
for
the
Subject
Waterbodies.
The
proposed
bacteria
criteria
are
the
same
as
the
Commonwealth's
criteria
associated
with
the
Class
SB
use
for
fecal
coliform
and
enterococci,
set
out
at
Section
3.2.2
of
the
PRWQSR.
If
Puerto
Rico
classifies
these
waterbodies
with
use
designations
consistent
with
the
CWA
and
40
CFR
part
131,
EPA
would
expect
to
approve
those
use
designations
and
initiate
rulemaking
to
rescind
today's
rule.
EPA
notes
that
a
water's
use
designation
of
primary
contact
recreation
(
made
solely
for
CWA
purposes)
and
adoption
of
water
quality
criteria
protective
of
that
use
are
intended
to
ensure
that
water
quality
will
protect
swimming
if
it
occurs
in
such
waters.
A
water's
use
designation
of
primary
contact
recreation
is
not
an
official
government
sanction
that
swimming
necessarily
is
recommended
in
such
waters.
There
may
be
other
considerations,
such
as
safety,
in
deciding
whether
swimming
is
appropriate.

B.
Comments
Received
in
Response
to
EPA's
October
2003
Proposal
The
Agency
evaluated
all
the
comments
submitted
to
EPA
during
the
public
comment
period
for
the
proposed
rule
with
regard
to
the
primary
contact
recreation
use
and
bacteria
criteria
for
the
Subject
Waterbodies.
A
few
commenters
noted
that
the
Subject
Waterbodies
are
not
currently
used
for
swimming
purposes
due
to
their
physical
characteristics
and
safety
issues
associated
with
their
use
as
commercial
ports
and,
therefore,
should
remain
classified
as
secondary
contact
recreation.
Two
commenters
noted
that
the
U.
S.
Coast
Guard
has
established
``
safety
zones''
in
Guayanilla
and
Tallaboa
Bays
preventing
other
vessels
from
being
within
a
certain
distance
of
a
vessel
carrying
Liquefied
Natural
Gas
or
Liquefied
Hazardous
Gas.
Two
commenters
stated
that
Guayanilla
Bay
is
being
considered
as
part
of
the
Port
of
Americas,
a
trans­
shipment
port
being
developed
on
the
southern
coast
of
Puerto
Rico.
EPA
recognizes
that
the
Commonwealth
does
not
wish
to
encourage
swimming
in
some
of
the
Subject
Waterbodies
because
of
their
physical
characteristics
and
safety
issues.
The
Commonwealth
has
a
range
of
options
available
to
them,
including
demonstrating
that
it
is
not
feasible
to
attain
the
primary
contact
recreation
use
in
a
use
attainability
analysis
that
supports
removing
the
use.
In
fact,
EPA
has
approved
secondary
contact
recreation
protection
for
waters
used
as
commercials
ports
based
upon
adequate
demonstration.
In
this
case,
EPA
is
aware
from
other
sources
in
the
record
that
primary
contact
recreation
activities
occur
in
portions
of
these
waters
at
least
on
a
limited
basis.
While
this
information
does
not
automatically
compel
the
Agency
to
require
primary
contact
recreation,
in
this
case
there
is
no
information
to
support
that
it
is
not
feasible
to
attain
water
quality
commensurate
with
primary
contact
recreation
protection.
Furthermore,
although
portions
of
the
waters
in
the
Subject
Waterbodies
are
specifically
managed
as
``
safety
zones''
precluding
access,
these
conditions
may
not
be
present
for
the
entirety
of
the
waters
designated
for
primary
contact
recreation
in
today's
action.
EPA's
regulations
are
not
intended
to
interfere
with
the
Coast
Guard's
regulations.
EPA's
establishment
of
a
primary
contact
recreation
designated
use
for
these
waters
does
not
advocate
that
swimming
take
place
regardless
of
safety
issues
that
may
be
present
within
the
waterbody,
such
as
the
presence
of
vessels
carrying
hazardous
cargo.
For
these
reasons,
EPA
believes
primary
contact
recreation
is
the
appropriate
designated
use
based
on
consideration
of
all
available
information
at
this
time.
EPA's
approach
in
this
rulemaking
does
not
undermine
the
Commonwealth's
primary
role
in
designating
uses
and
setting
criteria
for
waters
in
Puerto
Rico.
If
the
Commonwealth
reclassifies
the
Subject
Waterbodies
to
include
a
swimmable
designated
use;
adopts
criteria
sufficient
to
protect
a
swimmable
use;
or
completes
a
UAA,
taking
into
account
appropriate
biological,
chemical
and
physical
factors,
and
concludes
that
the
swimmable
use
is
not
attainable
for
these
waterbodies,
EPA
would
expect
to
approve
the
Commonwealth's
action
(
if
it
meets
all
requirements
of
EPA's
regulations
at
40
CFR
part
131)
and
initiate
a
rulemaking
to
rescind
today's
rule.
EPA
encourages
the
Commonwealth
to
continue
evaluating
the
appropriate
use
designation
for
these
waterbodies.
If
the
Commonwealth
prefers
to
designate
the
Subject
Waterbodies
as
secondary
contact
recreation
(
i.
e.,
Puerto
Rico's
current
use
classification
of
SC),
and
does
not
conduct
UAAs
for
the
waterbodies,
it
must
set
bacteriological
criteria
sufficient
to
support
primary
contact
recreation.
This
approach
is
consistent
with
the
CWA
section
101(
a)
goal.
EPA
recognizes
that,
in
some
cases,
it
may
not
make
sense
to
encourage
use
of
a
waterbody
for
swimming
due
to
safety
issues;
however,
swimming
may
occur
anyway
and,
therefore,
states
establish
water
quality
criteria
sufficient
to
protect
primary
contact
recreation
throughout
the
waterbody
and
for
any
incidental
contact
recreation
that
may
occur.
One
commenter
stated
that
fecal
coliform
is
not
an
appropriate
bacteriological
criterion
in
tropical
waters.
EPA
is
promulgating
both
fecal
coliform
and
enterococci
criteria
for
the
Subject
Waterbodies.
EPA
believes
the
use
of
both
these
indicators
will
adequately
protect
the
primary
contact
designated
use.
Further,
EPA
has
approved
the
use
of
these
indicators
in
other
states
for
tropical
waters
where
primary
contact
recreation
occurs.
Where
enterococci
is
newly
adopted,
as
in
Puerto
Rico,
States
may
continue
to
include
fecal
coliform
in
their
water
quality
standards
for
a
period
of
time
so
they
can
continue
to
make
regulatory
decisions
while
the
state
collects
data
on
enterococci.
EPA
believes
enterococci
is
a
better
indicator
to
protect
against
gastro­
intestinal
illness
and
EPA
expects
Puerto
Rico
to
continue
to
collect
the
necessary
enterococci
data
to
enable
the
Commonwealth
to
remove
the
fecal
coliform
criteria
for
recreational
waters
during
its
next
triennial
review.
One
commenter
also
stated
that
EPA
must
promulgate
the
same
dissolved
oxygen
(
DO)
criterion
for
the
Subject
Waterbodies
that
Puerto
Rico
has
for
its
Class
SB
waters
because
the
lower
DO
criterion
of
4
mg/
l
for
Class
SC
waters
will
impede
the
aquatic
life
use.
EPA
disagrees.
The
DO
criterion
for
Class
SC
waters
has
been
approved
as
protective
of
the
aquatic
life
use.
The
biological
monitoring
information
included
in
the
Quarterly
Reports
of
the
301(
h)
Waiver
Demonstration
Studies
indicates
that
healthy
aquatic
ecosystems
exist
in
Class
SC
waters
in
Puerto
Rico,
supporting
the
position
that
the
DO
criterion
of
4.0
mg/
l
is
adequate
to
protect
aquatic
life.
In
addition,
the
scope
of
this
promulgation
is
limited
to
establishing
a
primary
contact
recreation
use
and
associated
bacteria
criteria
because
the
Subject
Waterbodies
do
not
meet
the
CWA's
goal
of
``
swimmable.''
However,
the
use
designations
and
associated
criteria
applicable
to
these
waterbodies,

[[
Page
3520]]

including
the
current
DO
criterion,
do
meet
the
``
fishable''
goal.
One
commenter
asserted
that
EPA
must
ensure
today's
action
does
not
jeopardize
the
existence
of
threatened
or
endangered
species.
On
September
19,
2003,
EPA
initiated
consultation
with
the
U.
S.
Fish
and
Wildlife
Service
(
FWS)
and
the
National
Marine
Fisheries
Service
(
NMFS)
regarding
the
proposed
rule.
In
a
letter
dated
October
7,
2003,
FWS
concurred
that
the
final
action
is
not
likely
to
adversely
affect
threatened
or
endangered
species.
NMFS
has
not
yet
provided
its
final
position.
EPA
is
continuing
to
work
with
NMFS
to
conclude
this
consultation.
One
commenter
described
his
views
on
the
state
of
compliance
and
enforcement
activities
in
Puerto
Rico.
This
comment
did
not
pertain
specifically
to
the
facilities
potentially
affected
by
today's
action
and
therefore
not
within
the
scope
of
today's
action.
Based
on
thorough
evaluation
of
information
provided
to
EPA
through
the
public
comment
process,
EPA
believes
the
primary
contact
recreation
designated
use
and
the
bacteria
criteria
to
protect
primary
contact
recreation
that
were
proposed
for
the
Subject
Waterbodies
remain
appropriate
and
consistent
with
the
requirements
of
the
CWA.
Therefore,
EPA
is
promulgating
a
designated
use
of
primary
contact
recreation
to
be
added
to
the
current
designated
uses
assigned
to
the
Subject
Waterbodies.
EPA
is
also
promulgating
bacteria
criteria
sufficient
to
protect
for
the
primary
contact
recreation
use,
which
will
supersede
the
Commonwealth's
current
bacteria
criteria
for
the
Subject
Waterbodies.

IV.
Alternative
Regulatory
Approaches
and
Implementation
Mechanisms
Today's
rule
reflects
EPA's
determination
that
primary
contact
recreation
is
an
appropriate
use
designation
for
the
Subject
Waterbodies
based
upon
the
information
currently
available
to
EPA.
In
developing
today's
rule,
EPA
considered
data
and
information
submitted
to
the
Agency
during
the
comment
period.
However,
it
is
possible
that
relevant
information
for
these
waterbodies
may
become
available
in
the
future.
There
are
several
ways
to
ensure
that
the
use
and
its
implementing
mechanisms
appropriately
take
into
account
such
future
information.

A.
Designating
Uses
States
have
considerable
discretion
in
designating
uses.
A
State
may
find
that
changes
in
use
designations
are
warranted.
EPA
will
review
any
new
or
revised
use
designations
adopted
by
the
Commonwealth
for
these
waters
to
determine
if
the
standards
meet
the
requirements
of
the
CWA
and
implementing
regulations.
If
approved,
EPA
would
initiate
a
rulemaking
to
rescind
the
Federal
water
quality
standards
being
promulgated
today.
In
adopting
recreation
uses,
the
Commonwealth
may
wish
to
consider
additional
categories
of
recreation
uses.
For
example,
Puerto
Rico
could
establish
more
than
one
category
of
primary
contact
recreation
to
differentiate
between
waters
where
recreation
is
known
to
occur
and
waters
where
recreation
is
not
known
to
occur
but
may
be
attained
based
on
water
quality,
flow,
and
depth
characteristics.
EPA
cautions
the
Commonwealth
that
it
must
conduct
use
attainability
analyses
as
described
in
40
CFR
131.10(
g)
when
adopting
water
quality
standards
that
result
in
uses
not
specified
in
section
101(
a)(
2)
of
the
CWA
or
that
result
in
subcategories
of
uses
specified
in
section
101(
a)(
2)
that
require
less
stringent
criteria
(
see
40
CFR
131.10(
j)).

B.
Site­
Specific
Criteria
The
Commonwealth
may
also
develop
data
indicating
a
site­
specific
water
quality
criterion
for
a
particular
pollutant
is
appropriate
and
take
action
to
adopt
such
a
criterion
into
their
water
quality
standards.
Site­
specific
criteria
are
allowed
by
regulation
and
are
subject
to
EPA
review
and
approval.
The
regulation
(
see
40
CFR
131.11(
a))
requires
States
to
adopt
criteria
to
protect
designated
uses
based
on
sound
scientific
rationale
and
containing
sufficient
parameters
or
constituents
to
protect
the
designated
use.
In
adopting
water
quality
criteria,
States
should
establish
numerical
values
based
on
304(
a)
criteria,
304(
a)
criteria
modified
to
reflect
site­
specific
conditions,
or
other
scientifically
defensible
methods.
Alternatively,
States
may
establish
narrative
criteria
where
numerical
criteria
cannot
be
determined
or
to
supplement
numeric
criteria
(
see
40
CFR
131.11(
b)).
EPA
does
not
have
specific
guidance
for
States
and
authorized
Tribes
on
developing
site­
specific
criteria
for
the
protection
of
recreation
uses.
This
does
not
preclude
the
Commonwealth
from
developing
its
own
scientifically
defensible
methods.
Today's
rule
does
not
limit
Puerto
Rico's
ability
to
modify
the
criteria
applicable
to
the
Federal
swimmable
use.

C.
Variances
Water
quality
standards
variances
are
another
alternative
that
allows
EPA
to
modify
the
standards
with
respect
to
a
facility
requesting
the
variance.
Puerto
Rico
has
an
EPA­
approved
variance
procedure
in
the
PRWQSR
(
Article
9).
Today's
rule
also
contains
a
Federal
variance
procedure.
Variances
are
particularly
suitable
when
the
cause
of
nonattainment
is
discharger­
specific
and/
or
data
indicates
that
the
designated
use
in
question
will
eventually
be
attainable.
EPA
has
approved
the
granting
of
water
quality
standards
variances
by
States
when
circumstances
might
otherwise
justify
changing
a
use
designation
on
grounds
of
unattainability
(
i.
e.,
the
six
circumstances
described
in
40
CFR
131.10(
g)).
In
contrast
to
a
change
in
standards
that
removes
a
use
designation
for
a
waterbody,
a
water
quality
standards
variance
is
time­
limited,
only
applies
to
the
discharger
to
whom
it
is
granted,
and
only
applies
to
the
pollutant
parameter(
s)
upon
which
the
finding
of
unattainability
was
based.
The
underlying
standard
remains
in
effect
for
all
other
purposes.
One
example
might
be
where
the
Commonwealth
or
a
permittee
demonstrates
that
the
primary
contact
recreation
use
cannot
be
attained
pursuant
to
40
CFR
131.10(
g)
because
of
high
levels
of
fecal
coliforms
and/
or
enterococci
from
a
wastewater
treatment
facility,
and
it
would
cause
widespread
social
and
economic
harm
to
comply
with
the
standard
and
there
is
uncertainty
whether
an
upgraded
treatment
technology
might
allow
the
designated
use
to
be
attained.
In
this
case,
a
temporary
variance
may
be
appropriate.
The
variance
would
allow
the
discharger's
permit
to
include
limits
based
on
relaxed
criteria
for
fecal
coliform
and/
or
enterococci
until
the
new
technology
is
in
place
and
it
is
determined
if
the
underlying
designated
use
is
attainable.
The
practical
effect
of
such
a
variance
is
to
allow
a
permit
to
be
written
using
less
stringent
criteria,
while
encouraging
ultimate
attainment
of
the
underlying
standard.
A
water
quality
standards
variance
provides
a
mechanism
for
ensuring
compliance
with
sections
301(
b)(
1)(
C)
and
402(
a)(
1)
of
the
CWA
while
also
granting
temporary
relief
to
point
source
dischargers.
While
40
CFR
131.13
allows
States
to
adopt
variance
procedures
for
State­
adopted
water
quality
standards,
such
State
procedures
may
not
be
used
to
grant
variances
from
Federally
promulgated
standards.
It
is
appropriate
to
provide
comparable
Federal
procedures
to
address
new
information
that
may
become
available.
Therefore,
under
EPA's
rule,
the
Region
2
Regional
Administrator
may
grant
water
quality
[[
Page
3521]]

standard
variances
where
a
permittee
submits
data
demonstrating
that
the
primary
contact
recreation
designated
use
is
not
attainable
for
any
of
the
reasons
in
40
CFR
131.10(
g).
This
variance
procedure
will
apply
to
the
primary
contact
recreation
use
for
the
Subject
Waterbodies.
Today's
rule
spells
out
the
process
for
applying
for
and
granting
such
variances.
EPA
is
establishing
informal
adjudication
processes
for
reviewing
and
granting
variance
requests.
That
process
is
contained
in
40
CFR
131.40(
c)(
4)
of
today's
rule.
Because
water
quality
standards
variances
are
revisions
to
water
quality
standards,
the
Regional
Administrator
will
provide
public
notice
of
the
proposed
variance
and
an
opportunity
for
public
comment.
EPA
understands
that
variance
related
issues
may
arise
in
the
context
of
permit
issuance.
The
variance
procedures
in
today's
rule
require
an
applicant
for
a
water
quality
standards
variance
to
submit
a
request
and
supporting
information
to
the
Regional
Administrator
(
or
his/
her
delegatee).
The
applicant
must
demonstrate
that
the
designated
use
is
unattainable
for
one
of
the
reasons
specified
in
40
CFR
131.10(
g).
A
variance
will
not
be
granted
if
the
use
could
be
attained,
at
a
minimum,
by
implementing
effluent
limitations
required
under
sections
301(
b)
and
306
of
the
CWA
and
reasonable
best
management
practices
for
nonpoint
source
control.
Under
today's
rule,
a
variance
may
not
exceed
five
years
or
the
term
of
the
NPDES
permit,
whichever
is
less.
A
variance
may
be
renewed
if
the
permittee
demonstrates
that
the
use
in
question
is
still
not
attainable.
Renewal
of
the
variance
may
be
denied
if
EPA
finds
that
the
conditions
of
40
CFR
131.10(
g)
are
not
met
or
if
the
permittee
did
not
comply
with
the
conditions
of
the
original
variance.

V.
Economic
Analysis
Today's
rule
will
have
no
direct
impact
on
any
entity
because
the
rule
simply
establishes
water
quality
standards
(
e.
g.,
use
designations)
which
by
themselves
do
not
directly
impose
any
costs.
These
standards,
however,
may
serve
as
a
basis
for
development
of
NPDES
permit
limits.
In
Puerto
Rico,
EPA
Region
2
is
the
NPDES
permitting
authority
and
retains
considerable
discretion
in
implementing
standards.
Thus,
until
EPA
Region
2
implements
these
water
quality
standards,
there
will
be
no
effect
on
any
entity.
Nonetheless,
EPA
prepared
a
preliminary
analysis
to
evaluate
potential
costs
to
NPDES
dischargers
in
Puerto
Rico
associated
with
future
implementation
of
EPA's
Federal
standards.

A.
Identifying
Affected
Facilities
According
to
EPA's
Permit
Compliance
System
(
PCS),
there
are
593
NPDES­
permitted
facilities
in
Puerto
Rico.
Eighty­
four
of
the
facilities
are
classified
as
major
dischargers,
and
509
are
minor
or
general
permit
dischargers.
EPA
did
not
include
general
permit
facilities
in
its
analysis
because
data
for
such
facilities
are
extremely
limited,
and
flows
are
usually
negligible.
Furthermore,
EPA
could
not
determine
if
any
of
these
facilities
actually
discharge
to
the
affected
waterbodies
because
location
information
is
not
available
in
EPA's
PCS
database.
Therefore,
EPA's
analysis
includes
a
universe
of
285
permitted
facilities
(
84
majors
and
201
minors).
To
identify
facilities
potentially
affected
by
today's
rule,
EPA
assumed
that
only
facilities
that
have
the
potential
to
affect
(
i.
e.,
cause
an
increase
in
fecal
coliform
levels)
the
Subject
Waterbodies
for
which
EPA
is
designating
a
new
primary
contact
recreation
use
may
be
affected
by
this
rule.
Using
GIS
software,
EPA
identified
these
facilities
by
overlaying
PCS
facilities
with
the
potentially
affected
waters
and
their
tributaries
currently
designated
for
a
Class
SC
use.
EPA
assumed
that
only
wastewater
treatment
plants
or
military
facilities
with
similar
effluent
characteristics
(
i.
e.,
facilities
having
the
potential
to
discharge
fecal
coliforms)
would
potentially
be
affected
by
today's
rule.
Table
1
summarizes
the
universe
of
potentially
affected
facilities
by
type
and
category.

Table
1.­­
Estimated
Number
of
Facilities
Potentially
Affected
by
This
Rule
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Number
of
facilities
Category
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Major
Minor
Total
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Military...............................
1
2
3
Municipal..............................
19
10
29
Total..................................
20
12
32
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

B.
Method
For
Estimating
Potential
Compliance
Costs
EPA
identified
a
total
of
32
facilities
(
20
majors
and
12
minors)
that
may
be
potentially
affected
by
the
primary
contact
designated
use.
EPA
evaluated
a
sample
of
facilities
based
on
discharger
type
and
category
from
this
group
for
potential
cost
impacts
associated
with
the
rule.
For
these
sample
facilities,
EPA
evaluated
available
effluent
data
from
its
PCS
database
to
determine
the
potential
controls
that
may
ultimately
be
needed
as
a
result
of
the
rule.
EPA
estimated
on
a
case­
by­
case
basis
the
most
cost­
effective
control
strategy
for
each
sample
facility
to
achieve
compliance
with
the
bacteria
criteria.
EPA
assumed
that
projected
effluent
limits
for
fecal
coliform
will
be
applied
as
criteria
end­
of­
pipe
(
a
monthly
geometric
mean
of
200
colonies/
100
mL
and
not
more
than
20%
of
samples
exceeding
400
colonies/
100
mL)
because
the
facilities'
current
permits
apply
the
current
criteria
in
the
same
manner.
EPA
assumed
that
a
sample
facility
would
incur
costs
if
average
monthly
effluent
concentrations
(
or
existing
permit
limit,
whichever
is
less)
indicate
that
the
facility
would
not
be
in
compliance
with
the
most
stringent
criterion.
EPA
evaluated
each
facility's
potential
compliance
with
projected
permit
limits
based
on
available
monthly
average
fecal
coliform
values
from
the
Agency's
PCS
database.
If
monthly
average
values
are
not
available,
EPA
evaluated
potential
compliance
based
on
maximum
monthly
values.
EPA
determined
potential
compliance
with
the
projected
limit
for
each
sample
facility
based
on
the
relative
magnitude
of
the
maximum
average
monthly
values,
the
pattern
of
occurrence
of
such
values
(
i.
e.,
when
maximum
values
occurred),
and
current
treatment
performance
characteristics
(
e.
g.,
BOD
and
TSS
concentrations,
compliance
with
current
permit).
For
facilities
exceeding
their
current
limits,
EPA
assumed
that
facilities
would
install
the
necessary
controls
for
compliance
with
current
standards,
and
would
incur
costs
for
additional
treatment
process
optimization
(
e.
g.,
increase
chlorine
dose,
improve
mixing
[[
Page
3522]]

conditions,
increase
contact
time)
for
compliance
with
the
projected
limit.
For
facilities
that
are
in
compliance
with
their
current
permit
limits
but
would
not
comply
with
the
projected
limit,
EPA
also
assumed
that
process
optimization
of
their
chlorination
process
may
be
necessary
for
compliance.

C.
Results
EPA
estimated
the
potential
costs
associated
with
the
primary
contact
designated
use
for
the
Subject
Waterbodies.
Based
on
an
evaluation
of
the
sample
of
potentially
affected
facilities,
EPA
estimated
that
the
potential
total
annual
cost
associated
with
the
rule
is
$
2.7
million.

VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735
(
October
4,
1993))
the
Agency
must
determine
whether
the
regulatory
action
is
``
significant''
and
therefore
subject
to
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.
It
has
been
determined
that
this
rule
is
not
a
``
significant
regulatory
action''
under
the
terms
of
Executive
Order
12866
and
is
therefore
not
subject
to
OMB
review.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
Today's
rule
simply
establishes
water
quality
standards
that
may
serve
as
a
basis
for
development
of
NPDES
permit
limits;
it
does
not
include
any
information
collection,
reporting,
or
record­
keeping
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),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.,
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
according
to
RFA
default
definitions
for
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
these
economic
impacts
of
today's
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
rule
will
not
impose
any
requirements
on
small
entities.
The
RFA
requires
analysis
of
the
impacts
of
a
rule
on
the
small
entities
subject
to
the
rule's
requirements.
See
United
States
Distribution
Companies
v.
FERC,
88
F.
3d
1105,
1170
(
D.
C.
Cir.
1996).
Today's
rule
establishes
no
requirements
applicable
to
small
entities,
and
so
is
not
susceptible
to
regulatory
flexibility
analysis
as
prescribed
by
the
RFA.
(``[
N]
o
[
regulatory
flexibility]
analysis
is
necessary
when
an
agency
determines
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
that
are
subject
to
the
requirements
of
the
rule,''
United
Distribution
at
1170,
quoting
Mid­
Tex
Elec.
Co­
op
v.
FERC,
773
F.
2d
327,
342
(
D.
C.
Cir.
1985)
(
emphasis
added
by
United
Distribution
court).)
Under
the
CWA
water
quality
standards
program,
States
must
adopt
water
quality
standards
for
their
waters
and
must
submit
those
water
quality
standards
to
EPA
for
approval;
if
the
Agency
disapproves
a
State
standard
and
the
State
does
not
adopt
appropriate
revisions
to
address
EPA's
disapproval,
EPA
must
promulgate
standards
consistent
with
the
statutory
requirements.
EPA
also
has
the
authority
to
promulgate
criteria
or
standards
in
any
case
where
the
Administrator
determines
that
a
new
or
revised
standard
is
necessary
to
meet
the
requirements
of
the
Act.
These
State
standards
(
or
EPA­
promulgated
standards)
are
implemented
through
various
water
quality
control
programs
including
the
NPDES
program,
which
limits
discharges
to
navigable
waters
except
in
compliance
with
an
NPDES
permit.
The
CWA
requires
that
all
NPDES
permits
include
any
limits
on
discharges
that
are
necessary
to
meet
applicable
water
quality
standards.
Thus,
under
the
CWA,
EPA's
promulgation
of
water
quality
standards
establishes
standards
that
the
State
generally
implements
through
the
NPDES
permit
process.
In
this
case,
however,
EPA
Region
2
is
the
NPDES
permitting
authority
in
Puerto
Rico.
As
such,
EPA
Region
2
has
discretion
in
developing
discharge
limits
as
needed
to
meet
the
standards.
While
Region
2'
s
implementation
of
Federally
promulgated
water
quality
standards
may
result
in
new
or
revised
discharge
limits
being
placed
on
small
entities,
the
standards
themselves
do
not
directly
apply
to
any
discharger,
including
small
entities.
Today's
rule,
as
explained
earlier,
does
not
itself
establish
any
requirements
that
are
directly
applicable
to
small
entities.
As
a
result
of
this
action,
EPA
Region
2
will
need
to
ensure
that
permits
it
issues
include
any
limitations
on
discharges
necessary
to
comply
with
the
standards
established
in
this
rule.
In
doing
so,
the
Region
will
[[
Page
3523]]

have
a
number
of
choices
associated
with
permit
writing.
While
the
implementation
of
the
rule
may
ultimately
result
in
some
new
or
revised
permit
conditions
for
some
dischargers,
EPA's
action
today
does
not
impose
any
of
these
as
yet
unknown
requirements
on
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Pub.
L.
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
of
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.
Today's
rule
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
rule
imposes
no
enforceable
duty
on
the
Commonwealth
of
Puerto
Rico,
or
any
other
State,
local
or
Tribal
government
or
the
private
sector;
rather,
this
rule
establishes
a
designated
use
for
primary
contact
recreation
and
associated
bacteria
criteria
for
the
Subject
Waterbodies,
which,
when
combined
with
Commonwealth
adopted
water
quality
criteria,
constitute
water
quality
standards
for
those
waterbodies.
The
Commonwealth
and
EPA
may
use
these
resulting
water
quality
standards
in
implementing
its
water
quality
control
programs.
Today's
rule
does
not
regulate
or
affect
any
entity
and,
therefore,
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
As
stated,
the
rule
imposes
no
enforceable
requirements
on
any
party,
including
small
governments.
Thus,
this
rule
is
not
subject
to
the
requirements
of
section
203
of
the
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
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
The
rule
will
not
affect
the
nature
of
the
relationship
between
EPA
and
States
generally,
for
the
rule
only
applies
to
waterbodies
in
Puerto
Rico
(
which
is
considered
a
``
State''
for
purposes
of
the
water
quality
standards
program).
Further,
the
rule
will
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.
The
rule
will
not
alter
the
Commonwealth's
considerable
discretion
in
implementing
these
water
quality
standards.
Further,
this
rule
will
not
preclude
Puerto
Rico
from
adopting
water
quality
standards
that
meet
the
requirements
of
the
CWA.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.
Although
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
did
consult
with
representatives
of
the
Commonwealth
in
developing
this
rule.
Prior
to
this
rulemaking
action,
EPA
had
numerous
phone
calls,
meetings
and
exchanges
of
written
correspondence
with
EQB
to
discuss
EPA's
concerns
with
the
Commonwealth's
water
quality
standards,
possible
remedies
for
addressing
the
inadequate
sections
of
their
water
quality
standards,
the
use
designations
and
criteria
in
today's
rule,
and
the
Federal
rulemaking
process.
For
a
more
detailed
description
of
EPA's
interaction
with
the
Commonwealth
on
this
rulemaking,
refer
to
section
II.
C.
2.
EPA
will
continue
to
work
with
the
Commonwealth
with
regard
to
their
ongoing
efforts
to
adopt
water
quality
standards
that
meet
the
requirements
of
the
CWA,
including
water
quality
standards
for
the
Subject
Waterbodies.

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.
There
are
no
Indian
Tribes
in
Puerto
Rico,
where
this
rule
applies.
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:
``
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
[[
Page
3524]]

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
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866.
Further,
it
does
not
concern
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
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
and
Advancement
Act
As
noted
in
the
proposed
rule,
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
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
did
not
consider
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
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.
804(
2).
This
rule
will
be
effective
March
26,
2004.

List
of
Subjects
in
40
CFR
Part
131
Environmental
protection,
Indian
lands,
Intergovernmental
relations,
Reporting
and
recordkeeping
requirements,
Water
pollution
control.

Dated:
January
20,
2004.
Michael
O.
Leavitt,
Administrator.

0
For
the
reasons
set
forth
in
the
preamble,
EPA
amends
40
CFR
part
131
as
follows:

PART
131­­
WATER
QUALITY
STANDARDS
0
1.
The
authority
citation
for
part
131
continues
to
read
as
follows:

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

Subpart
D­­[
Amended]

0
2.
Section
131.40
is
added
to
read
as
follows:

Sec.
131.40
Puerto
Rico.

(
a)
Use
designations
for
marine
waters.
In
addition
to
the
Commonwealth's
adopted
use
designations,
the
following
waterbodies
in
Puerto
Rico
have
the
beneficial
use
designated
in
this
paragraph
(
a)
within
the
bays
specified
below,
and
within
the
Commonwealth's
territorial
seas,
as
defined
in
section
502(
8)
of
the
Clean
Water
Act,
and
33
CFR
2.05­
5,
except
such
waters
classified
by
the
Commonwealth
as
SB.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Waterbody
segment
From
To
Designated
use
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Coastal
Waters.......................
500m
offshore..........
3
miles
offshore
.......
Primary
Contact
Recreation.
Guayanilla
&
Tallaboa
Bays...........
Cayo
Parguera..........
Punta
Verraco...
.......
Primary
Contact
Recreation.
Mayaguez
Bay.........................
Punta
Guanajibo........
Punta
Algarrobo.
.......
Primary
Contact
Recreation.
Ponce
Port...........................
Punta
Carenero.........
Punta
Cuchara...
.......
Primary
Contact
Recreation.
San
Juan
Port........................
mouth
of
Rio
Bayamon...
Punta
El
Morro..
.......
Primary
Contact
Recreation.
Yabucoa
Port.........................
Punta
Icacos...........
Punta
Yeguas....
.......
Primary
Contact
Recreation.
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

(
b)
Criteria
that
apply
to
Puerto
Rico's
marine
waters.
In
addition
to
all
other
Commonwealth
criteria,
the
following
criteria
for
bacteria
apply
to
the
waterbodies
in
paragraph
(
a)
of
this
section:
Bacteria:
The
fecal
coliform
geometric
mean
of
a
series
of
representative
samples
(
at
least
five
samples)
of
the
waters
taken
sequentially
shall
not
exceed
200
colonies/
100
ml,
and
not
more
than
20
percent
of
the
samples
shall
exceed
400
colonies/
100
ml.
The
enterococci
density
in
terms
of
geometric
mean
of
at
least
five
representative
samples
taken
sequentially
shall
not
exceed
35/
100
ml.
No
single
sample
should
exceed
the
upper
confidence
limit
of
75%
using
0.7
as
the
log
standard
deviation
until
sufficient
site
data
exist
to
establish
a
site­
specific
log
standard
deviation.
(
c)
Water
quality
standard
variances.
(
1)
The
Regional
Administrator,
EPA
Region
2,
is
authorized
to
grant
variances
from
the
water
quality
standards
in
paragraphs
(
a)
and
(
b)
of
this
section
where
the
requirements
of
this
paragraph
(
c)
are
met.
A
water
quality
standard
variance
applies
only
to
the
permittee
requesting
the
variance
and
only
to
the
pollutant
or
pollutants
specified
in
the
variance;
the
underlying
water
quality
standard
otherwise
remains
in
effect.
(
2)
A
water
quality
standard
variance
shall
not
be
granted
if:
(
i)
Standards
will
be
attained
by
implementing
effluent
limitations
required
under
sections
301(
b)
and
306
of
the
CWA
and
by
the
permittee
implementing
reasonable
best
management
practices
for
nonpoint
source
control;
or
(
ii)
The
variance
would
likely
jeopardize
the
continued
existence
of
any
threatened
or
endangered
species
listed
under
section
4
of
the
Endangered
Species
Act
or
result
in
the
destruction
or
adverse
modification
of
such
species'
critical
habitat.
(
3)
A
water
quality
standards
variance
may
be
granted
if
the
applicant
[[
Page
3525]]

demonstrates
to
EPA
that
attaining
the
water
quality
standard
is
not
feasible
because:
(
i)
Naturally
occurring
pollutant
concentrations
prevent
the
attainment
of
the
use;
(
ii)
Natural,
ephemeral,
intermittent
or
low
flow
conditions
or
water
levels
prevent
the
attainment
of
the
use,
unless
these
conditions
may
be
compensated
for
by
the
discharge
of
sufficient
volume
of
effluent
discharges
without
violating
Commonwealth
water
conservation
requirements
to
enable
uses
to
be
met;
(
iii)
Human
caused
conditions
or
sources
of
pollution
prevent
the
attainment
of
the
use
and
cannot
be
remedied
or
would
cause
more
environmental
damage
to
correct
than
to
leave
in
place;
(
iv)
Dams,
diversions
or
other
types
of
hydrologic
modifications
preclude
the
attainment
of
the
use,
and
it
is
not
feasible
to
restore
the
waterbody
to
its
original
condition
or
to
operate
such
modification
in
a
way
which
would
result
in
the
attainment
of
the
use;
(
v)
Physical
conditions
related
to
the
natural
features
of
the
waterbody,
such
as
the
lack
of
a
proper
substrate,
cover,
flow,
depth,
pools,
riffles,
and
the
like
unrelated
to
water
quality,
preclude
attainment
of
aquatic
life
protection
uses;
or
(
vi)
Controls
more
stringent
than
those
required
by
sections
301(
b)
and
306
of
the
CWA
would
result
in
substantial
and
widespread
economic
and
social
impact.
(
4)
Procedures.
An
applicant
for
a
water
quality
standards
variance
shall
submit
a
request
to
the
Regional
Administrator
of
EPA
Region
2.
The
application
shall
include
all
relevant
information
showing
that
the
requirements
for
a
variance
have
been
met.
The
applicant
must
demonstrate
that
the
designated
use
is
unattainable
for
one
of
the
reasons
specified
in
paragraph
(
c)(
3)
of
this
section.
If
the
Regional
Administrator
preliminarily
determines
that
grounds
exist
for
granting
a
variance,
he/
she
shall
provide
public
notice
of
the
proposed
variance
and
provide
an
opportunity
for
public
comment.
Any
activities
required
as
a
condition
of
the
Regional
Administrator's
granting
of
a
variance
shall
be
included
as
conditions
of
the
NPDES
permit
for
the
applicant.
These
terms
and
conditions
shall
be
incorporated
into
the
applicant's
NPDES
permit
through
the
permit
reissuance
process
or
through
a
modification
of
the
permit
pursuant
to
the
applicable
permit
modification
provisions
of
Puerto
Rico's
NPDES
program.
(
5)
A
variance
may
not
exceed
five
years
or
the
term
of
the
NPDES
permit,
whichever
is
less.
A
variance
may
be
renewed
if
the
applicant
reapplies
and
demonstrates
that
the
use
in
question
is
still
not
attainable.
Renewal
of
the
variance
may
be
denied
if
the
applicant
did
not
comply
with
the
conditions
of
the
original
variance,
or
otherwise
does
not
meet
the
requirements
of
this
section.

[
FR
Doc.
04­
1545
Filed
1­
23­
04;
8:
45
am]

BILLING
CODE
6560­
50­
P
EPA
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Last
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on
Tuesday,
January
27th,
2004
URL:
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EPA­
WATER/
2004/
January/
Day­
26/
w1545.
htm
