

[Federal Register: May 17, 2007 (Volume 72, Number 95)]
[Proposed Rules]               
[Page 27789-27798]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my07-24]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2007-0259; FRL-8315-3]

 
Water Quality Standards for Puerto Rico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing water quality standards that would establish 
methods to implement Puerto Rico's existing antidegradation policy for 
waters in the Commonwealth of Puerto Rico.

DATES: Comments must be received on or before June 18, 2007.
    EPA will hold a public hearing on this proposed rule on Monday June 
4, 2007, from 2 p.m. to 5 p.m. and from 7 p.m. to 9 p.m. The public 
hearing will occur at the Universidad Metropolitana (UMET) Theatre, 
Ave. Ana G. Mendez, Km 0.3, Cupey, Puerto Rico 00928. If you need 
special accommodations at this meeting, including wheelchair access or 
sign language interpreter, you should contact Yasmin Laguer at 787-997-
5848 at least 10 business days prior to the meeting so that we can make 
appropriate arrangements.

ADDRESSES: Submit your comments, identified by Docket Id. No. [EPA-HQ-
OW-2007-0259], by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
     E-mail: ow-docket@epa.gov.
     Mail to either: Water Docket, USEPA, Mailcode: 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or Docket Manager, 
Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2, 
290 Broadway, New York, New York 10007, Attention Docket ID No. OW-
2007-0259.
     Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Ave., NW., Washington, DC, 20004 or Docket Manager, 
Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2, 
290 Broadway, New York, New York 10007, Attention Docket ID No. OW-
2007-0259. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
0259. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov website is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at two Docket Facilities. The OW 

Docket Center is open from 8:30 a.m. until 4:30 p.m, Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-2426 and the Docket address is OW Docket, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20004. The Public Reading Room 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744. Publicly available docket materials are also available 
in hard copy at U.S. EPA Region 2, 290 Broadway, 24th Floor, New York, 
New York 10007. This location is open from 8:30 a.m. until 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
is (212) 637-3807. Publicly available docket materials will be viewable 
electronically at the Caribbean Environmental Protection Division, U.S. 
EPA Region 2, 1492 Ponce De Leon Avenue, Suite 417, Centro Europa 
Building, San Juan, Puerto Rico 00907. This facility is open from 9 
a.m. to 3:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number is (787) 977-5848.

FOR FURTHER INFORMATION 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 Danielle Fuligni, U.S. EPA Headquarters, 

Office of Science and Technology, 1200 Pennsylvania Avenue, NW., Mail 
Code 4305T, Washington, DC 20460 (telephone: 202-566-0793 or e-mail: 
fuligni.danielle@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. What Should I Consider as I Prepare my Comments for EPA?
II. Background
    A. What Are the Applicable Federal Statutory and Regulatory 
Requirements?
    B. Why Is EPA Proposing Federal Antidegradation Implementation 
Methods for the Commonwealth of Puerto Rico?
III. This Proposed Rule
    A. What Are the Proposed Antidegradation Implementation Methods 
to Protect Puerto Rico's High Quality Waters?
    B. How Will Puerto Rico Implement the Proposed Antidegradation 
Implementation Methods?
    C. What Are the Cost Implications of the Proposed Rule?
    D. Request for Comment
IV. Statutory and Executive Order Reviews

[[Page 27790]]

    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

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. Today's proposal, if made final, will 
establish 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:

------------------------------------------------------------------------
                                      Examples of potentially affected
             Category                             entities
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Industry..........................  Industries discharging pollutants to
                                     surface waters in Puerto Rico.
Municipalities....................  Discharges from publicly-owned
                                     facilities such as publicly owned
                                     treatment works and water
                                     filtration facilities.
------------------------------------------------------------------------

    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. What Should I Consider as I Prepare My Comments for EPA?

    i. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    ii. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

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 has since granted 
EPA's motion for an additional 30 days. EPA is, therefore, proposing 
Federal water quality standards for these waters in Puerto Rico.
    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

[[Page 27791]]

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 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 Proposing 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 EQB 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.

[[Page 27792]]

    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 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 has since granted a 30-day extension.

III. This Proposed Rule

    EPA is proposing federal water quality standards identifying 
methods for implementing Puerto Rico's antidegradation policy. 
Consistent with section 303(c)(4) of the CWA, if during the Federal 
rulemaking process, Puerto Rico incorporates into Commonwealth 
regulation its own antidegradation implementation methods and EPA 
approves Puerto Rico's action, EPA would not finalize this proposal. In 
addition, if Puerto Rico incorporates into Commonwealth regulation its 
own antidegradation implementation methods following publication of a 
final Federal rule, EPA would withdraw its rule.

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

    These proposed 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 
proposed methods reflect this update).
    Consistent with Puerto Rico's antidegradation implementation 
methods, the proposed 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 proposing to apply 
Puerto Rico's methods to sources other than point sources.
    In addition, as envisioned by Puerto Rico, the proposed 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

[[Page 27793]]

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 proposing that antidegradation reviews for 
high quality waters in Puerto Rico occur on a parameter-by-parameter 
basis.
    Under the proposed methods, Puerto Rico would 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 proposed 
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, the proposed 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 River and Harbors Act. The 
proposed methods would 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 proposed 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 would be implemented in waters 
identified by Puerto Rico as ONRWs, the proposed 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, would assure that the water quality in waters 
identified as ONRWs be maintained and protected.

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

    Puerto Rico will implement the proposed 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. (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 Proposed Rule?

    Puerto Rico's existing antidegradation implementation methods are 
the same as the antidegradation methods set forth in this proposed 
rule. Thus, while not in regulation, the proposed implementation 
methods are already in place in Puerto Rico and as such, EPA's proposed 
antidegradation methods are not expected to result in any additional 
monetary costs. Nonetheless, EPA prepared an analysis to evaluate

[[Page 27794]]

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 Proposed 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 proposed 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 proposed 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 proposed rule would only require that antidegradation be applied 
to point sources. In addition, EPA did not address the potential 
monetary benefits of this proposed 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.

             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 proposed 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 proposed rule could be $14,500 
to $32,900.

D. Request for Comment

    EPA solicits comment on the antidegradation methods it is 
proposing. The Agency will evaluate any comments, data and information 
submitted to EPA by the close of the public comment period. After full 
consideration of such comments, data, and information, EPA will make a 
final decision on the appropriateness of the antidegradation methods it 
is proposing.

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 proposed rule. Therefore, these EPA-proposed methods are 
not expected to result in any additional monetary costs. However, EPA 
has prepared an analysis of the costs and benefits of the Puerto Rico 
antidegradation policy and

[[Page 27795]]

methods. This analysis is contained in the ``Economic Analysis of 
Proposed 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 IV. 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 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 proposed 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 
proposed rule. Thus, while not in regulation, the proposed 
implementation methods are already in place in Puerto Rico and, as a 
result, the proposed implementation 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 ``Economic Analysis of Proposed 
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 proposed rule would not affect the nature of the relationship 
between EPA and States generally, for the rule would only apply to 
waters within Puerto Rico's jurisdiction. Further the proposed rule 
would 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 proposed 
antidegradation methods, this proposed rule would not change the 
Commonwealth's ability to implement these methods. Further, this 
proposed rule would 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 
proposed

[[Page 27796]]

rule, EPA did consult with the Commonwealth of Puerto Rico in 
developing this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, 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 proposed 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 proposed 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.

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

    This proposed 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    Executive Order 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 proposed rule will 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 proposed 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 is transmitting this proposed rule to the FWS and NMFS for 
review and comment concurrent with the publication of today's notice. 
That transmittal constitutes 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 will 
continue to work closely with the Services to ensure that the final 
rule will not adversely affect or jeopardize the continued existence of 
threatened or endangered species or their critical habitat.

List of Subjects in 40 CFR Part 131

    Environmental protection, Antidegradation, Water quality standards.

    Dated: May 10, 2007.
Stephen L. Johnson,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 131 as follows:

PART 131--WATER QUALITY STANDARDS

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

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

Subpart D--[Amended]

    2. Section 131.42 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 non discharge 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

[[Page 27797]]

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 (ONRW):
    (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 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 Presentaci[oacute]n, Evaluaci[oacute]n y Tr[aacute]mite 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 publishes 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

[[Page 27798]]

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.
    (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 appropriated 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. E7-9409 Filed 5-16-07; 8:45 am]

BILLING CODE 6560-50-P
