
[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Rules and Regulations]
[Pages 46298-46304]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18872]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2011-0515, FRL 9666-8]
RIN 2040-AF38


Phosphorus Water Quality Standards for Florida Everglades

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating a rule that identifies provisions of 
Florida's Water Quality Standards for Phosphorus in the Everglades 
Protection Area (Phosphorus Rule) and Florida's Amended Everglades 
Forever Act (EFA) that EPA has disapproved and that therefore are not 
applicable water quality standards for purposes of the Clean Water Act. 
EPA is promulgating this final rule following EPA's disapproval of 
these provisions and EPA's specific directions to the State of Florida 
to correct these deficiencies in the Phosphorus Rule and EFA. EPA's 
disapproval, specific directions to the State, and this rule implement 
two orders by the U.S. District Court for the Southern District of 
Florida.

DATES: This final rule is effective September 4, 2012. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of September 4, 
2012.

ADDRESSES: An electronic version of the public docket is available 
through the EPA's electronic public docket and comment system, EPA 
Dockets. You may use EPA Dockets at http://www.regulations.gov to view 
public comments at Docket number EPA-HQ-OW-2011-0515, access the index 
listing of the contents of the official public docket, and to access 
those documents in the public docket that are available electronically. 
For additional information about EPA's public docket, visit the EPA 
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
Publicly available docket materials are available either electronically 
in 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: Mario Sengco, Standards and Health 
Protection Division, Office of Science and Technology, Mail Code: 
4305T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: (202) 566-2676; email: 
sengco.mario@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. What entities may be affected by this rule?

    Citizens concerned with water quality in Florida may be interested 
in this rulemaking. Entities discharging phosphorus to waters upstream 
of the Everglades Protection Area could be indirectly affected by the 
Phosphorus Rule and EFA, although not specifically by this rule because 
the rule merely publishes the text changes that reflect the prior 
disapproval by the EPA of certain provisions of the Phosphorus Rule and 
EFA. Any indirect affect to entities would be because the water quality 
standards contained in the State's regulation and statute are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. With this in mind, categories and entities that 
ultimately may be indirectly affected include:

------------------------------------------------------------------------
                                            Examples of potentially
               Category                   indirectly affected entities
------------------------------------------------------------------------
Water Management Districts...........  Entities responsible for managing
                                        point source discharges near the
                                        Everglades Protection Area.
Nonpoint Source Contributors.........  Entities responsible for
                                        contributing nonpoint source
                                        runoff near the Everglades
                                        Protection Area.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for entities that may be affected indirectly by this action. This 
table lists the types of entities of which EPA is now aware that 
potentially could be indirectly affected by this action. Other types of 
entities not listed in the table could also be affected directly or 
indirectly. 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 
Everglades Protection Area, might be indirectly affected by this rule. 
To determine whether your facility or activities may be affected by 
this action, you should examine the rule. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section, entitled FOR 
FURTHER INFORMATION CONTACT.

B. How do I get copies of this notice?

    Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2011-0515. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460. 
Publicly available docket materials are available electronically 
through www.regulations.gov and in hard copy at the EPA Docket Center 
Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the public 
Reading Room is (202) 566-1744 and the telephone number for the Water 
docket is (202) 566-2426.
    Incorporation by reference. Documents that are being incorporated 
by reference through this rule may be found in the docket as described 
above, on EPA Web site established for this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm, and 
through the National Archives and Records Administration (NARA) by 
sending a request by email to fedreg.info@nara.gov">fedreg.info@nara.gov, or by mail to the 
following address: Office of the Federal Register (NF), The National 
Archives and Records Administration, 8601 Adelphi Road, College Park, 
MD 20740-6001. For information on the availability

[[Page 46299]]

of this material at NARA, call 202-741-6030, or go to the following Web 
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm.

II. Background

    EPA is promulgating this rule to identify provisions of Florida's 
Water Quality Standards for Phosphorus in the Everglades Protection 
Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act 
(EFA) that EPA has disapproved and that therefore are not applicable 
water quality standards for purposes of the Clean Water Act. EPA is 
promulgating this final rule following its disapproval of these 
provisions and EPA's specific directions to the State of Florida to 
correct these deficiencies in the Phosphorus Rule and EFA. EPA's 
disapproval and specific directions to the State implement two orders 
by the U.S. District Court for the Southern District of Florida. 
Pursuant to the Court's orders and consistent with Clean Water Act 
section 303(c), EPA provided the State a period of time to correct the 
deficiencies. The State has not corrected the deficiencies within that 
time period. Therefore, EPA is promulgating this rule. The rule 
incorporates by reference two documents that identify the specific 
provisions of Florida's Phosphorus Rule and EFA that are not applicable 
water quality standards for purposes of the Clean Water Act. The 
specific provisions that are not applicable water quality standards are 
indicated with ``strikeout'' text in the documents that are 
incorporated by reference into the Code of Federal Regulations.

 A. Statutory and Regulatory Background

    Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA) 
directs 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 waters of the United 
States within the State. Section 303(c) and EPA's implementing 
regulations (40 CFR part 131) provide that water quality standards 
shall include designated uses of the water and water quality criteria 
necessary to protect those uses.
    States must submit any new or revised water quality standards for 
EPA review and approval/disapproval. EPA must approve/disapprove any 
new or revised standards within 60-90 days. (Section 303(c)(3)). If EPA 
disapproves any standard, EPA is to specify the changes to meet the 
requirements of the CWA. If the changes are not adopted by the State, 
EPA is to promulgate standards to address the necessary changes in the 
State standards that EPA has disapproved. In this rulemaking, EPA is 
identifying the portions of Florida's standards that EPA disapproved 
and that, after EPA notification of necessary changes, the State has 
not adopted through changes in State publications.

B. Florida's Phosphorus Rule and Everglades Forever Act

1. Florida's Phosphorus Rule
    In 2005, the Florida Department of Environmental Protection (FDEP) 
submitted to EPA for review pursuant to CWA section 303(c), provisions 
of Florida Administrative Code (``FAC'') 62-302.540 entitled ``Water 
Quality Standards for Phosphorus Within the Everglades Protection 
Area'' (Phosphorus Rule or Rule). The Rule established a numeric water 
quality criterion for phosphorus as well as implementing provisions for 
the numeric criterion within the Everglades Protection Area. In 2005 
and 2006, EPA issued a series of decisions approving certain provisions 
of the Phosphorus Rule and concluding that other provisions were not 
new or revised water quality standards and did not require EPA approval 
or disapproval under CWA section 303(c).
2. Florida's Everglades Forever Act
    The Florida Legislature enacted the Everglades Forever Act in 1994 
to maintain and restore the ecosystem of the Everglades. See Miccosukee 
Tribe of Indians v. United States, 105 F.3d. 599, 601 (11th Cir. 1997). 
EPA subsequently reviewed and approved one section of the EFA (section 
4(f)) as a new or revised water quality standard in 1999. The 
Legislature enacted amendments to the EFA in 2003. EPA reviewed the 
amendments and issued a decision in 2003 that the amendments were not 
new or revised water quality standards requiring EPA approval or 
disapproval under section 303(c) of the CWA.

C. Litigation and Subsequent EPA Actions

    In consolidated litigation, environmental and Native American 
plaintiffs challenged (1) EPA's 2003 decision that the EFA amendments 
were not water quality standards and (2) EPA's 2005 and 2006 decisions 
regarding the Phosphorus Rule. In a July 29, 2008 decision, the U.S. 
District Court for the Southern District of Florida upheld in part and 
remanded in part EPA's decisions. Miccosukee Tribe of Indians & Friends 
of the Everglades v. U.S. Environmental Protection Agency, Florida 
Department of Environmental Protection, et al., No. 04-21488-CIV-Gold/
McAliley (S.D. Fla.). The Court upheld EPA's 2005 approval of the 
Phosphorus Rule's numeric phosphorus criterion and the ``four-part'' 
test for determining attainment of the criterion. The Court overturned 
(1) EPA's decision that certain implementing provisions of the 
Phosphorus Rule were not new or revised water quality standards, and 
(2) EPA's approval of other provisions of the Phosphorus Rule, finding 
EPA's approval to be arbitrary and capricious. The Court also rejected 
EPA's position that the legislative amendments to the EFA did not 
constitute new or revised water quality standards subject to EPA review 
(and approval or disapproval) under section 303(c) of the CWA. The 
Court remanded to EPA to take further action consistent with the 
Court's decision.
1. EPA's December 2009 Determination
    On December 3, 2009, EPA issued a new Determination in response to 
the Court's remand. Consistent with the Court's 2008 decision, EPA 
disapproved certain amendments to the EFA. It is those disapproved 
provisions of the EFA that are, in part, the subject of this 
rulemaking. In addition, EPA reviewed the provisions of the Phosphorus 
Rule that the Court either found were new or revised standards or that 
the Court had held EPA's prior approval invalid. Consistent with the 
Court's decision, EPA disapproved certain provisions of the Phosphorus 
Rule in December of 2009 and those disapproved provisions also are 
reflected in this final rulemaking.
2. Court's April 14, 2010 Order
    Plaintiffs challenged EPA's December 2009 Determination, alleging, 
in part, that EPA failed to (1) specify the changes that Florida must 
make to the Phosphorus Rule and EFA to bring them into compliance with 
the CWA and (2) commit to promulgate if the State fails to act. The 
Court, in an order dated April 14, 2010, remanded EPA's 2009 
Determination and ordered EPA to issue an Amended Determination (AD) by 
September 3, 2010. Miccosukee Tribe of Indians & Friends of the 
Everglades v. U.S. Environmental Protection Agency, Florida Department 
of Environmental Protection, et al., No. 04-21488-CIV-Gold/McAliley 
(April 14, 2010, S.D. Fla.) (Order). While the Court did not take issue 
with EPA's disapprovals, the Court nevertheless ordered that EPA's AD 
``shall specifically direct the State of

[[Page 46300]]

Florida to correct deficiencies in the Amended EFA and Phosphorus Rule 
that have been invalidated,'' attaching copies of the Rule and EFA with 
strikeout markings indicating the exact language from the Rule and EFA 
that the EPA was to direct the State to correct. Order at 44. The Court 
ordered that in the AD, ``EPA shall require the State of Florida to 
commence and complete rulemaking for the Phosphorus Rule within 120 
days from the date of the Amended Determination and shall require 
amendments to the Amended EFA to be enacted by July 1, 2011.'' Order at 
44-45. The Court further ordered that ``[i]n the event the State of 
Florida fails to timely act, the EPA shall provide timely notice, and 
the EPA Administrator ``shall promulgate such standard[s]'' pursuant to 
33 U.S.C. 1313(c).'' Order at 45. This rulemaking complies with that 
Court order.
3. EPA's September 3, 2010 Amended Determination
    Consistent with the Court's April 14, 2010 Order, EPA prepared an 
Amended Determination (AD) dated September 3, 2010. The AD directed the 
State of Florida to correct deficiencies in the Phosphorus Rule and 
Amended EFA. The AD included as attachments copies of the Phosphorus 
Rule and EFA with strikeout markings indicating the language changes 
necessary to meet Clean Water Act requirements. EPA's AD stated that if 
FDEP has not finalized revisions by January 1, 2011 and the Legislature 
has not enacted amendments to the EFA by July 1, 2011, then EPA would 
initiate rulemaking to promulgate the necessary changes consistent with 
the Court's Order.
    Although FDEP initiated a rulemaking, with a notice of rule 
development published on March 26, 2010, to adopt the necessary 
revisions to the Phosphorus Rule and the EFA amendments consistent with 
EPA's AD, the State rulemaking agencies did not complete that process 
on the Phosphorus Rule changes by January 1, 2011. Nor has the State 
completed its rulemaking process on the Phosphorus Rule since that 
date. The Florida Legislature also did not introduce or enact any 
amendments to the EFA consistent with EPA's AD. The Florida Legislature 
adjourned and did not reconvene prior to July 1, 2011. Therefore, EPA 
proceeded, consistent with the Court's Order and EPA's AD, to initiate 
this rulemaking process to promulgate the proposed federal rulemaking 
identifying the necessary changes to the Phosphorus Rule and EFA to 
meet Clean Water Act requirements.

III. EPA's Proposal and Public Comments Received

    Proposed Rule: EPA's proposed rule identified those provisions in 
the Phosphorus Rule and Everglades Forever Act (EFA) that EPA had 
disapproved and therefore are not applicable water quality standards 
for purposes of the CWA. The provisions are those that EPA previously 
disapproved in December 2009 that the Court identified in its April 
2010 Order, and that EPA subsequently identified in its September 2010 
AD. EPA initiated this rulemaking to promulgate the necessary changes 
to the Phosphorus Rule and EFA, consistent with the April 2010 Order 
and EPA's AD, after the State failed to make changes to the regulation 
and statute, respectively, by specified dates.
    For the purposes of codifying the changes, EPA proposed to 
incorporate by reference into the Code of Federal Regulations copies of 
the Phosphorus Rule and EFA with the strikeout markings, identifying 
the provisions and language that are not applicable water quality 
standards for purposes of the CWA. EPA explained that the approach of 
incorporation by reference was the most appropriate among the 
approaches that the Agency considered to correct the deficiencies in 
the State's regulation and statute. Therefore, copies of the two 
documents to be incorporated were placed in the rulemaking docket. In 
addition, EPA identified the specific provisions of the Phosphorus Rule 
and EFA that are not applicable water quality standards for purposes of 
the CWA in Tables 1 and 2 of the proposal.
    EPA further explained in the proposal that the remaining provisions 
of the Phosphorus Rule and EFA either (1) had already been approved by 
EPA as new or revised water quality standards (i.e., are applicable 
water quality standards for the purposes of the CWA), or (2) are not 
water quality standards subject to EPA review and approval (or 
disapproval) under the Clean Water Act. Therefore, EPA did not propose 
to promulgate any of the remaining provisions that EPA had previously 
approved or that are not water quality standards.
    For the convenience of the reader and to improve the readability of 
the two documents to be incorporated by reference, EPA included in its 
proposal a few minor text changes to the Phosphorus Rule and EFA in the 
docket. These changes were identified by underline. EPA included these 
few text changes in a submission filed with the Court and the Court 
subsequently indicated that it would modify its April 2010 to reflect 
these changes. EPA added text when deletion of the disapproved language 
rendered the remaining text difficult to understand. For example, in 
EFA section 10, EPA added text to restore language that existed prior 
to enactment of EFA amendments. In these sections, EPA did not propose 
to establish new or revised water quality standards with these text 
changes. Similarly, for ease of readability, the docket versions of the 
Phosphorus Rule and Amended Everglades Forever Act struck the 
definitions of ``optimization'' (which corresponded to regulatory 
language already disapproved) from sections 2(l) and 3(f), as discussed 
in the proposed rule preamble.
    The public was given an opportunity to review the proposed rule and 
provide comments over a thirty-day period.
    Comments: EPA received comments from eight separate commenters 
including the two litigants in the District Court case and other 
interested parties. A few commenters challenged EPA's authority to 
promulgate this rule, arguing that the Agency lacks legal authority to 
promulgate a rule after disapproval of water quality standards when the 
remaining approved water quality standards meet CWA requirements. EPA 
disagrees that it has no authority to promulgate water quality 
standards following disapproval. CWA section 303(c) does not 
specifically address the issue. It was reasonable and consistent with 
the CWA for EPA to promulgate this final rule that identifies only 
those provisions of Florida law that EPA has disapproved and that 
therefore are not applicable water quality standards for purposes of 
the Clean Water Act, where EPA concluded that the State should revise 
its existing standards to remove the disapproved provisions and the 
State failed to take such action. Otherwise, the provisions of the 
revised State water quality standards that EPA disapproved would remain 
applicable under State law. EPA's action will remove any potential for 
confusion and identify the provisions of State law that EPA has 
disapproved and that, therefore, are not in effect for federal CWA 
purposes.
    To the extent EPA would be promulgating as federal regulations 
provisions of state water quality standards that EPA has approved (or 
provisions associated with approved water quality standards that are 
not themselves water quality standards), the CWA does not provide for 
such action. The CWA provides that when EPA approves a new or revised 
state water quality standard, ``such standard shall thereafter be the 
water quality standard

[[Page 46301]]

for the applicable waters of the State.'' CWA section 303(c)(3). Only 
if EPA disapproves a state water quality standard or makes a 
determination that a new or revised water quality standard is necessary 
to meet the requirements of the Clean Water Act under section 
303(c)(4)(B) and the state fails to make the necessary changes, does 
the Act direct EPA to promulgate such water quality standards for 
navigable waters of the state. There are many provisions of the 
Phosphorus Rule that EPA approved. EPA does not believe it would be 
appropriate to promulgate those provisions as federal regulations.
    Second, except for the disapproved provisions of the EFA 
amendments, EPA has not approved or disapproved the remaining 
provisions of the EFA (with one exception) as new or revised water 
quality standards under the Clean Water Act. Therefore, it would not be 
appropriate for EPA to promulgate such provisions as federal water 
quality standards.
    Copies of the public comments and the EPA's responses can be found 
in the docket associated with this rulemaking (see instructions above 
under General Information).
    Final Rule: EPA has made no changes to its proposal in this final 
rule. EPA believes that the incorporation by reference approach 
described in the proposed rule, as well as the content of the proposed 
rule, remain appropriate for promulgation.
    For the convenience of persons reviewing this final rule, EPA has 
included copies of the Phosphorus Rule and Amended Everglades Forever 
Act in the docket that included the strikeout markings indicating the 
language that EPA identifies as not being applicable water quality 
standards for purposes of the CWA. The provisions of the Phosphorus 
Rule and EFA that are not applicable water quality standards for 
purposes of the CWA are summarized again here in Tables 1 and 2 below.

 Table 1--62-302.540 Provisions of Florida Administrative Code (F.A.C.)
(Water Quality Standards for Phosphorus Within the Everglades Protection
  Area) That Are Not Applicable Water Quality Standards for Purposes of
                           the Clean Water Act
------------------------------------------------------------------------
              Section                   Specific provision or language
------------------------------------------------------------------------
(1)(a).............................  Entire paragraph.
(1)(b)(2)..........................  Entire paragraph.
(2)(b)-(f).........................  Entire paragraphs and
                                      subparagraphs.
(2)(h).............................  Entire paragraph.
(2)(l).............................  Entire paragraph.
(3)(a)-(b).........................  Entire paragraphs.
(3)(f).............................  Entire paragraph.
(3)(h).............................  Entire paragraph.
(4)(d)(2)(c).......................  Sentence only, ``If these limits
                                      are not met, no action shall be
                                      required, provided that the net
                                      improvement or hydropattern
                                      restoration provisions of
                                      subsection (6) below are met.''
(5)(a).............................  Entire paragraph.
(5)(b)(2)-(3)......................  Entire paragraphs.
(5)(d).............................  Entire paragraph.
(6)(a)-(c).........................  Entire paragraphs and
                                      subparagraphs.
------------------------------------------------------------------------


   Table 2--Provisions of the Amended Everglades Forever Act (Florida
  Statute 373.4592) That Are Not Applicable Water Quality Standards for
                     Purposes of the Clean Water Act
------------------------------------------------------------------------
              Section                   Specific provision or language
------------------------------------------------------------------------
(2)(a).............................  Entire paragraph.
(2)(g).............................  Sentence 1, phrase ``and further
                                      described in the Long-Term Plan''.
(2)(j).............................  Entire paragraph.
(2)(l).............................  Entire paragraph.
(2)(p).............................  Entire paragraph.
(3)(b)-(e).........................  Entire paragraphs.
(4)(a).............................  Sentence 9, phrase ``design,
                                      construction, and implementation
                                      of the initial phase of the Long-
                                      Term Plan, including operation and
                                      maintenance, and research for the
                                      projects and strategies in the
                                      initial phase of the Long-Term
                                      Plan, and including.''
(4)(a)(4)..........................  Sentence 1, phrase ``however, the
                                      district may modify this schedule
                                      to incorporate and accelerate
                                      enhancements to STA 3/4 as
                                      directed in the Long-Term Plan''.
(4)(a)(6)..........................  Entire subparagraph.
(4)(e)(2)..........................  Sentences 7, 8 and 9.
(4)(e)(3)..........................  Sentence 3.
(10)...............................  Sentence 1, phrase ``to implement
                                      the pre-2006 projects and
                                      strategies of the Long-Term
                                      Plan.''
                                     Sentence 1, phrase ``in all parts
                                      of the Everglades Protection
                                      Area''.
                                     Sentence 1, phrase ``and moderating
                                      provisions''.
(10)(a)............................  Entire paragraph.
------------------------------------------------------------------------


[[Page 46302]]

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) and is 
therefore not subject to review under Executive Orders 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 merely clarifies the 
water quality standards concerning the phosphorus rule and the Amended 
EFA statute that are not water quality standards for purposes of the 
CWA and does not impose any information collection burden 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.
    As a result of the disapproval action by EPA in December 2009, the 
Florida Department of Environmental Protection already needs to ensure 
that permits it issues do not implement the provisions identified in 
this rule because those provisions are not applicable water quality 
standards for purposes of the CWA. In doing so, the State will have a 
number of choices associated with permit writing. While Florida's 
implementation of the rule (and EPA's earlier disapprovals) might 
ultimately result in some new or revised permit conditions for some 
dischargers, including small entities, EPA's action today would not 
impose any of these as yet unknown requirements on small entities. 
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

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action merely clarifies the water quality standards 
concerning the Phosphorus Rule and the Amended EFA and does not impose 
any burden on anyone. Therefore, this action is not subject to the 
requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

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 clarifies the 
water quality standards concerning the Phosphorus Rule and the Amended 
EFA and does not apply to any government other than the State of 
Florida.

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000) because this is 
an action in which the EPA has no discretion, i.e., EPA is mandated by 
the Court to take this action. Thus, Executive Order 13175 does not 
apply to this action. Nonetheless, consistent with the findings of the 
Executive Order and in response to a request from the Miccosukee Tribe 
submitted during the public comment period, EPA did choose to confer 
with the Tribe.

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 the environmental health risks 
or safety risks addressed by this action present a disproportionate 
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 (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. This action is not subject to E.O. 
12898 because this action merely clarifies the water quality standards 
concerning the Phosphorus Rule and the Amended EFA.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 46303]]

Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report, 
which includes a copy of the rule, to each House of the Congress and to 
the Comptroller General of the United States. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
A Major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective September 4, 2012.

List of Subjects in 40 CFR Part 131

    Environmental protection, Incorporation by reference, Indians--
lands, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water pollution control.

     Dated: July 27, 2012.
Lisa P. Jackson,
Administrator.

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

PART 131--WATER QUALITY STANDARDS

0
1. The Authority citation for part 131 continues to read as follows:

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

Subpart D--[Amended]

0
2. Section 131.44 is added as follows:


Sec.  131.44  Florida.

    (a) Phosphorus Rule. (1) The document entitled ``Florida 
Administrative Code, Chapter 62-302, Surface Water Quality Standards, 
Section 62-302.540, Water Quality Standards for Phosphorus Within the 
Everglades Protection Area, Amended May 25, 2005, as annotated by EPA'' 
(Phosphorus Rule), is incorporated by reference as described in 
paragraph (a)(2). EPA is not incorporating the full text of this 
document, but correcting specified portions of the Phosphorus Rule as 
directed by a federal district court as indicated by the strikeout 
markings. The EPA is only incorporating by reference these crossed-out 
portions in the Florida Administrative Code 62-302.540. The Director of 
the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a). Copies of the document may be 
inspected and obtained from the docket associated with this rulemaking 
(Docket Number EPA-HQ-OW-2011-0515) at http://www.regulations.gov 
electronically, at EPA's Water Docket (Address: 1301 Constitution 
Avenue NW., EPA West, Room B102, Washington, DC 20460, telephone 
number: 202-566-2426), at the National Archives and Records 
Administration (NARA), and finally, on the EPA Web site associated with 
this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm. For information on the availability of 
this material at NARA, call 202-741-6030, or go to the following Web 
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts and identifies the portions 
of the document that have strikeout markings as portions of the 
Phosphorus Rule that EPA disapproved on December 3, 2009, and that are 
not applicable water quality standards for the purposes of the Clean 
Water Act. Remaining portions of the Phosphorus Rule that EPA had 
previously approved are applicable water quality standards for the 
purposes of the Clean Water Act but are not codified as federal 
regulations.
    (2) In the Phosphorus Rule, strike the following text:
    (i) The entire paragraph (1)(a);
    (ii) The entire paragraph (1)(b)(2);
    (iii) The entire paragraph and subparagraphs (2)(b), (2)(c), 
(2)(d), (2)(e), (2)(e)(1), (2)(e)(2) and 2(f);
    (iv) The entire paragraph (2)(h);
    (v) The entire paragraph (2)(l);
    (vi) The entire paragraphs (3)(a) and (3)(b);
    (vii) The entire paragraph 3(f);
    (viii) The entire paragraph (3)(h);
    (ix) In (4)(d)(2)(c), the sentence, ``If these limits are not met, 
no action shall be required, provided that the net improvement or 
hydropattern restoration provisions of subsection (6) below are met.'';
    (x) The entire paragraph (5)(a);
    (xi) The entire paragraph (5)(b)(2) and (5)(b)(3);
    (xii) The entire paragraph (5)(d);
    (xiii) The entire paragraph (6), including subparagraphs (6)(a), 
(6)(a)(1), (6)(a)(1)(a), (6)(a)(1)(b), (6)(a)(2), (6)(a)(3), (6)(a)(4), 
(6)(a)(5), (6)(b), (6)(b)(1), (6)(b)(2), (6)(b)(3), and (6)(c).
    (b) Amended Everglades Forever Act. (1) The document entitled 
``Florida Statute, Title 28, Natural Resources; Conservation, 
Reclamation, and Use, Section 373.4592, Everglades improvement and 
management, effective July 1, 2008, also known as the ``Everglades 
Forever Act,'' as annotated by EPA'' is incorporated by reference as 
described in paragraph (b)(2). The EPA is not incorporating the full 
text of this document, but correcting specified portions of the statute 
as directed by the court as indicated by the strike out markings. The 
EPA is only incorporating by reference these crossed-out portions in 
the Florida Statute, the ``Everglades Forever Act.'' The Director of 
the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a). Copies of the document may be 
inspected and obtained from the docket associated with this rulemaking 
(Docket Number EPA-HQ-OW-2011-0515) at http://www.regulations.gov 
electronically, at EPA's Water Docket (Address: 1301 Constitution 
Avenue NW., EPA West, Room B102, Washington, DC 20460, telephone 
number: 202-566-2426), at the National Archives and Records 
Administration (NARA), and finally, on the EPA Web site associated with 
this rulemaking at http://water.epa.gov/lawsregs/rulesregs/floridaeverglades_index.cfm. For information on the availability of 
this material at NARA, call 202-741-6030, or go to the following Web 
site http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.htm. EPA adopts and identifies the portions 
of the document that have strikeout markings as portions of the statute 
that EPA disapproved on December 3, 2009, and that are not applicable 
water quality standards for the purposes of the Clean Water Act. 
Remaining portions of the statute that EPA had previously approved are 
applicable water quality standards for the purposes of the Clean Water 
Act but are not codified as federal regulations.
    (2) In the Everglades Forever Act, strike the following text:
    (i) The entire paragraph (2)(a);
    (ii) In paragraph (2)(g), the phrase, ``and further described in 
the Long-Term Plan.'';
    (iii) The entire paragraph (2)(j);
    (iv) The entire paragraph (2)(l);
    (v) The entire paragraph (2)(p);
    (vi) The entire paragraphs (3)(b), (3)(c), (3)(d) and (3)(e);
    (vii) In sentence 9 of paragraph (4)(a), the phrase, ``design, 
construction, and implementation of the initial phase of the Long-Term 
Plan, including operation and maintenance, and research for the 
projects and strategies in the initial phase of the Long-Term Plan, and 
including'';
    (viii) In sentence 1 of subparagraph (4)(a)(4), the phrase, 
``however, the district may modify this schedule to incorporate and 
accelerate enhancements to STA 3/4 as directed in the Long-Term 
Plan;'';
    (ix) The entire subparagraph (4)(a)(6);

[[Page 46304]]

    (x) In subparagraph (4)(e)(2), the entire sentences 7, 8 and 9;
    (xi) In subparagraph (4)(e)(3), the entire sentence 3;
    (xii) In sentence 1 of paragraph (10), the phrase, ``to implement 
the pre-2006 projects and strategies of the Long-Term Plan'', the 
phrase, ``in all parts of the Everglades Protection Area'', and the 
phrase ``and moderating provisions'';
    (xiii) The entire paragraph (10)(a).
    (3) EPA is not incorporating the text annotations added by hand to 
the Everglades Forever Act. These text inserts are included only for 
the convenience of the reader and to improve the readability of the 
document.

[FR Doc. 2012-18872 Filed 8-2-12; 8:45 am]
BILLING CODE 6560-50-P


