
[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Proposed Rules]
[Pages 79604-79607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32793]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9611-1]
RIN 2040-AF36


Effective Date for the Water Quality Standards for the State of 
Florida's Lakes and Flowing Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
extend the March 6, 2012 effective date of the ``Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters; Final 
Rule'' (inland waters rule) for ninety days to June 4, 2012. EPA's 
inland waters rule included an effective date of March 6, 2012 for the 
entire regulation except for the site-specific alternative criteria 
provision, which took effect on February 4, 2011. This proposal to 
revise the effective date for the inland waters rule does not affect or 
change the February 4, 2011 effective date for the site-specific 
alternative criteria provision. In this proposal, EPA is requesting 
comment on extending the effective date for the ``Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters; Final 
Rule.''

DATES: Comments must be received on or before January 23, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: ow-docket@epa.gov.
    3. Mail to: Water Docket, U.S. Environmental Protection Agency, 
Mail code: 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
    4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No. 
EPA-HQ-OW-2009-0596. 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-2009-
0596. 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 email. The http://www.regulations.gov Web site 
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 email comment directly to EPA without 
going through http://www.regulations.gov your email 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 EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. For additional information about EPA's public docket, 
visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although listed in the index, some information is not 
publicly available, i.e., Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyright material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Docket Facility. 
The Office of Water (OW) Docket Center is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The OW Docket 
Center telephone number is (202) 566-1744 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.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
rulemaking, contact: Tracy Bone, U.S. EPA, Office of Water, Mailcode 
4305T, 1200 Pennsylvania Avenue NW., Washington, DC, 20460; telephone 
number (202) 564-5257; email address: bone.tracy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

Does this action apply to me?

    Citizens concerned with water quality in Florida may be interested 
in this rulemaking. Entities discharging nitrogen or phosphorus to 
lakes and flowing waters of Florida could be indirectly affected by 
this rulemaking because water quality standards (WQS) are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. Categories and entities that may ultimately be affected 
include:

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                                      Examples of potentially affected
             Category                             entities
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Industry..........................  Industries discharging pollutants to
                                     lakes and flowing waters in the
                                     State of Florida.

[[Page 79605]]

 
Municipalities....................  Publicly-owned treatment works
                                     discharging pollutants to lakes and
                                     flowing waters in the State of
                                     Florida.
Stormwater Management Districts...  Entities responsible for managing
                                     stormwater runoff in Florida.
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    This table is not intended to be exhaustive, but rather provides a 
guide for entities that may be directly or indirectly affected by this 
action. This table lists the types of entities of which EPA is now 
aware that potentially could be affected by this action. Other types of 
entities not listed in the table, such as nonpoint source contributors 
to nitrogen/phosphorus pollution in Florida's waters may be affected 
through implementation of Florida's water quality standards program 
(i.e., through Basin Management Action Plans (BMAPs)). Any parties or 
entities conducting activities within watersheds of the Florida waters 
covered by this rule, or who rely on, depend upon, influence, or 
contribute to the water quality of the lakes and flowing waters of 
Florida, may be affected by this rule. To determine whether your 
facility or activities may be affected by this action, you should 
carefully examine the language in 40 CFR 131.43, which is the final 
rule. If you have questions regarding the applicability of this action 
to a particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

II. Background

    On December 6, 2010, EPA's final inland waters rule, entitled 
``Water Quality Standards for the State of Florida's Lakes and Flowing 
Waters; Final Rule'', was published in the Federal Register at 75 FR 
75762, and codified at 40 CFR 131.43. The final inland waters rule 
established numeric nutrient criteria in the form of total nitrogen, 
total phosphorus, nitrate+nitrite, and Chlorophyll a for the different 
types of Florida's inland waters to assure attainment of the State's 
applicable water quality designated uses. More specifically, the 
numeric nutrient criteria translate Florida's narrative nutrient 
provision at Subsection 62-302-530(47)(b), Florida Administrative Code 
(F.A.C.), into numeric values that apply to lakes and springs 
throughout Florida and flowing waters outside of the South Florida 
Region. (EPA has distinguished the South Florida Region as those areas 
south of Lake Okeechobee and the Caloosahatchee River watershed to the 
west of Lake Okeechobee and the St. Lucie watershed to the east of Lake 
Okeechobee.) This final action seeks to improve water quality, protect 
public health and aquatic life, and achieve the long-term recreational 
uses of Florida's waters, which are a critical part of the State's 
economy.
    As stated in 40 CFR 131.43(f), 75 FR 75807, the rule is scheduled 
to take effect on March 6, 2012, except for the site-specific 
alternative criteria (SSAC) provision at 40 CFR 131.43(e), which took 
effect on February 4, 2011. EPA selected the March 6, 2012 effective 
date for the criteria part of the rule to allow time for EPA to work 
with stakeholders and the Florida Department of Environmental 
Protection (FDEP) on important implementation issues, to help the 
public and all affected parties better understand the final criteria 
and the bases for those criteria, and for EPA to engage and support, in 
full partnership with FDEP, the general public, stakeholders, local 
governments, and sectors of the regulated community across the State in 
a process of public outreach education, discussion, and constructive 
planning. 75 FR 75787.

III. Proposed Effective Date

A. Current Inland Waters Rule Effective Date and Rationale

    The current effective date for the inland waters rule is March 6, 
2012 except, as noted earlier, for the site-specific alternative 
criteria (SSAC) provision, which became effective February 4, 2011. As 
mentioned earlier, in the December 6, 2010, preamble for the final rule 
(75 FR 75762, 75787), the Agency noted its desire to actively engage in 
partnership with the Florida Department of the Environment (FDEP) to 
support FDEP's implementation of the new criteria before the criteria 
take effect. The 15-month period between publication and the effective 
date was to allow for education and outreach efforts targeted at the 
major interest sectors and geographic locations throughout the State of 
Florida, including training and guidance concurrent with data synthesis 
and analysis to support potential SSAC development; public comment and 
response period to allow development of effective guidance, training 
and possible workshops to run concurrent with SSAC submittals; 
finalizing guidance materials along with development of rollout 
strategies concurrent with notice and comment of SSAC guidance; and 
finally statewide education and training on guidance and contingency 
planning. These actions were considered reasonably necessary to ensure 
application of programs to achieve criteria in a manner to make the 
most efficient use of limited resources and to gain the broadest 
possible support for timely and effective action upon reaching the 
effective date of the criteria.
    Since December of 2010, EPA at both the Headquarters and Regional 
levels has worked in collaboration with the State on outreach and 
education efforts including: participating in multiple meetings with a 
wide variety of local officials from Florida, conducting various 
webinars and meetings with respect to the final rule, including the 
SSAC provision, and participating in technical meetings with various 
stakeholder groups. EPA has met with a wide range of stakeholders and 
local officials, including: State, county and city representatives, 
utility managers and water districts, and representatives from industry 
and agriculture. Between November 2010 and March 2011, EPA conducted 
five webinars discussing various aspects of the final rule for lakes, 
streams and springs and its implementation, with participation by over 
750 people from a wide range of stakeholder groups in Florida. EPA met 
with and/or held conference calls with local officials from Palm Beach 
County, Jacksonville, Gainesville, Polk County and several of the 
State's Water Management Districts. EPA hosted officials from the 
Florida League of Cities and the Association of Counties for a day-long 
meeting to address questions and concerns from those officials. EPA 
also participated in conferences sponsored by organizations such as the 
League of Cities, Association of Counties, Florida Stormwater 
Association, Air and Water Managers Association, and the Florida 
Engineering Society. EPA has been coordinating closely with FDEP on 
issues related to implementation of the rule and supporting State 
efforts to develop State-adopted numeric nutrient criteria.

B. Rationale for Extending the March 6, 2012 Effective Date

    EPA is proposing to extend the effective date of the inland waters 
rule (with the exception of the SSAC provision, which is already in 
effect) for

[[Page 79606]]

ninety days, to June 4, 2012, for the reasons discussed in this 
section.
    Since the promulgation of the December 6, 2010 final rule for 
Florida's inland waters, EPA has continued to work in close 
coordination with the State of Florida as the State develops its own 
rulemaking for numeric nutrient criteria that are consistent with 
requirements of the CWA, address the water quality needs of the State, 
and support effective permit implementation, water body assessment and 
listing, and development of TMDLs. On November 10, 2011, FDEP proposed 
numeric nutrient criteria and related provisions for inland as well as 
a number of estuarine waters for the State, which were published in the 
Florida Administrative Weekly (Volume 37, number 45, pages 3753-3775). 
On December 8, 2011, the State's Environmental Review Commission (ERC) 
approved these proposed rules with additional amendments. On December 
9, 2011, it is EPA's understanding that FDEP submitted the ERC-approved 
rules and amendments to the Florida Legislature for ratification during 
the 2012 legislative session. Since the ERC approved additional 
amendments to the rules that were proposed on November 10, 2011, EPA 
understands that FDEP must publish a notice of change, which is 
expected to be included in the December 23, 2011 edition of the Florida 
Administrative Weekly.
    At the time of today's proposed effective date extension, the State 
rulemaking and legislative process is ongoing and its ultimate 
resolution is uncertain. Nonetheless, final State action in this area 
could have significant implications for many interested parties and 
members of the public in the State on the need to move forward with 
implementation of EPA's inland water numeric criteria in the event that 
alternative Florida numeric nutrient criteria are established that 
assure attainment of State water quality designated uses consistent 
with applicable CWA provisions. Successful State action on this issue 
could also affect the obligations and expectations of a wide range of 
affected stakeholders whose actions relate to the discharge or 
contribution of nitrogen and phosphorus pollution to State waters. The 
last day of Florida's 2012 regular legislative session is March 9, 
2012. Extending the effective date of EPA's inland waters rule would 
avoid the confusion and inefficiency that may occur should Federal 
criteria become effective while State criteria are being finalized by 
the State and reviewed by EPA. If the State decides to not proceed with 
final numeric nutrient criteria before EPA finalizes this proposal to 
extend the effective date, EPA anticipates not finalizing an extension 
of the March 6, 2012, effective date.
    However, if the State rulemaking process continues as planned 
toward FDEP's submission of new or revised water quality standards to 
EPA for review pursuant to CWA section 303(c), EPA anticipates and 
proposes extending the March 6, 2012 effective date by ninety days to 
June 4, 2012, to allow the State to complete its process. Should the 
State decide not to proceed with final numeric nutrient criteria after 
the ninety-day extension is finalized, EPA anticipates the inland 
waters rule would become effective at the end of the ninety days, on 
June 4, 2012. If, however, the State rulemaking process results in 
final and effective numeric nutrient criteria after EPA has finalized 
the ninety-day extension, EPA would expect to propose a further 
extension of the effective date of the inland waters rule, to allow 
FDEP to submit the rule to EPA for review and action under section 
303(c) of the CWA, for EPA to complete its review of the State rule, 
and for EPA to withdraw any Federal numeric nutrient criteria 
corresponding to any State-adopted numeric nutrient criteria that have 
been approved by EPA.
    Should EPA decide to extend the effective date of the inland waters 
rule, the Agency will continue to work with Florida towards 
implementation of Federal or State numeric nutrient criteria. As EPA 
stated in the preamble to the final inland waters rule, the opportunity 
that is presented by numeric nutrient criteria--for substantial 
nitrogen and phosphorus loadings reductions in the State--``would be 
greatly facilitated and expedited by strongly coordinated and well-
informed stakeholder engagement, planning, and support before a rule of 
this significance and broad scope begins to take effect and be 
implemented through the State's regulatory programs.'' 75 FR 75787.
    EPA solicits comments regarding the proposed extension of ninety 
days, to June 4, 2012, for the effective date of the inland waters 
rule. EPA also requests comment on whether a longer extension should be 
provided to allow Florida more time to complete the State rulemaking 
process.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993), since it 
merely extends the effective date of an already promulgated rule, and 
is therefore not subject to review under Executive Order 12866 and 
13563 (76 FR 3821, January 21, 2011).

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. 
Burden is defined at 5 CFR 1320.3(b). This action does not impose any 
information collection burden, reporting or record keeping requirements 
on anyone.

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.
    This proposed rule does not establish any requirements that are 
applicable to small entities, but rather merely extends the date of 
already promulgated requirements. Thus, I certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

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,

[[Page 79607]]

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.
    This proposed 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. This proposed rule does not 
regulate or affect any entity and, therefore, is not subject to the 
requirements of sections 202 and 205 of UMRA.

E. Executive Order 13132 (Federalism)

    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action merely extends the 
effective date of an already promulgated regulation.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has Tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by Tribal governments, or 
EPA consults with Tribal officials early in the process of developing 
the proposed regulation and develops a Tribal summary impact statement. 
However, the rule will neither impose substantial direct compliance 
costs on Tribal governments, nor preempt Tribal law.
    In the State of Florida, there are two Indian Tribes, the Seminole 
Tribe of Florida and the Miccosukee Tribe of Indians of Florida, with 
lakes and flowing waters. Both Tribes have been approved for treatment 
in the same manner as a State (TAS) status for CWA sections 303 and 401 
and have federally-approved WQS in their respective jurisdictions. 
These Tribes are not subject to this proposed rule. This rule will not 
impact the Tribes because it merely extends the date of already 
promulgated requirements.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 12866 
and because the Agency does not believe this action includes 
environmental health risks or safety risks that would present a risk to 
children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 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. 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. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes Federal executive policy on environmental justice. Its main 
provision directs 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. This action is not subject to E.O. 
12898 because this action merely extends the effective date for already 
promulgated requirements.

List of Subjects in 40 CFR Part 131

    Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.

    Dated: December 16, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-32793 Filed 12-21-11; 8:45 am]
BILLING CODE 6560-50-P


