Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 9709 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the finding 

of SIP inadequacy would not apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 110 and 301 of 

the CAA, as amended (42 U.S.C. 7410 

and 7601). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Iowa, Particulate 

matter, State Implementation Plan. 

Dated: February 10, 2011. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–3862 Filed 2–18–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter I 

[EPA–09–0W–2010–0976–FRL–9268–5] 

RIN–2009–ZA00 

Water Quality Challenges in the San 

Francisco Bay/Sacramento-San 

Joaquin Delta Estuary 

AGENCY: Environmental Protection 

Agency. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is publishing 

an advance notice of proposed 

rulemaking (ANPR) to seek comments 

from interested parties on possible EPA 

actions to address water quality 

conditions affecting aquatic resources in 

the San Francisco Bay/Sacramento-San 

Joaquin Delta Estuary (Bay Delta 

Estuary) in California. EPA is asking the 

public to consider broadly whether EPA 

should be taking new or different 

actions under its programs to address 

recent significant declines in multiple 

aquatic species in the Bay Delta Estuary. 

EPA is not limiting its request to actions 

that would require rulemaking. There 

may be a range of changes in EPA’s 

activities in the Bay Delta Estuary that 

would be constructive, including 

enforcement, research, revisions to 

water quality standards, etc. EPA will 

consider all comments before deciding 

what changes, if any, should be 

pursued. After reviewing the comments 

and completing its evaluation, EPA will 

provide the results of its review and any 

proposed next steps to the public. This 

ANPR identifies specific issues on 

which EPA solicits comment, including 

potential site-specific water quality 

standards and site-specific changes to 

pesticide regulation. In addition to the 

specific issues on which EPA solicits 

comments, EPA is interested in 

comments on any other aspects of EPA’s 

programs affecting Bay Delta Estuary 

aquatic resources. This notice contains 

a summary version of the ANPR. 

Information on accessing the 

unabridged version is included in the 

SUPPLEMENTARY INFORMATION section 

below. 

DATES: Written comments must be 

submitted by April 25, 2011. 

ADDRESSES: Written comments, 

identified by docket number EPA–R09– 

OW–2010–0976, may be submitted 

electronically at the Federal Rulemaking 

Portal (http://www.regulations.gov). 

Hard copy comments should be 

addressed to Erin Foresman, U.S. 

Environmental Protection Agency, 75 

Hawthorne Street, WTR–3, San 

Francisco, California 94105. See 

SUPPLEMENTARY INFORMATION for file 

formats and other information about 

filing. 

Filing Instructions: All comments will 

be included in the public docket 

without change and will be made 

available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through http:// 

www.regulations.gov or e-mail. 

Regulations.gov is an ‘‘anonymous 

access’’ system and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

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. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region 9, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., confidential 

business information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with Erin Foresman, 

foresman.erin@epa.gov, (916) 557–5253. 

FOR FURTHER INFORMATION CONTACT: Erin 

Foresman at U.S. Environmental 

Protection Agency, Region 9, Water 

Division, 75 Hawthorne Street, San 

Francisco, California 94105; 

foresman.erin@epa.gov, (916) 557–5253. 

SUPPLEMENTARY INFORMATION: Detailed 

information describing the current state 

of Bay Delta Estuary aquatic resources, 

summaries of scientific knowledge 

regarding Bay Delta Estuary water 

quality stressors, and water quality 

regulatory and non-regulatory activities 

in the Bay Delta Estuary is contained in 

the Unabridged ANPR provided on EPA 

Region 9’s Web site (http:// 

www.epa.gov/region9/water/watershed/ 

sfbay-delta/index.html) and in the 

electronic docket available at http:// 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

9710 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 

1There is no commonly accepted precise 

geographic definition of the Bay Delta Estuary. The 

‘‘legal Delta’’ is well-defined for purposes of the 

California Delta Protection Commission and related 

California statutes, but is not co-terminous with the 

functioning estuary. This ANPR will generally refer 

to the larger estuary upstream of the San Francisco 

Bay as the Bay Delta Estuary or the Estuary. It will 

also refer to the Delta, which usually means the 

‘‘legal Delta’’ plus Suisun Marsh and Suisun Bay. 

Occasionally, this ANPR may also reference the Bay 

Delta Estuary watershed, which is a huge land area 

that includes the drainages of the Sacramento and 

San Joaquin River basins. 

2Clean Water Act, 33 U.S.C. 1281–1387 (2006). 

3 ‘‘Anadromous’’ species are those, such as 

chinook salmon and steelhead, that spend at least 

some of their life cycle in salt water. Usually, these 

species return to freshwater to spawn. 4Water years in California are defined as October 

1 through the following September 30. For example, 

the 2011 water year began October 1, 2010 and 

continues through September 30, 2011. Water years 

in California are categorized based on the particular 

rainfall that year. The categories are wet, above 

normal, below normal, dry, and critically dry. 

5Endangered Species Act, 16 U.S.C. 1531–1544 

(2006). 6See Cal. Dep’t of Water Res. & Bureau of 

Reclamation, Water Supply Conditions 2009 (Aug., 

2009), available at http://www.water.ca.gov/news/ 

newsreleases/2009/08122009martinmilligan2.pdf 

(suggests that approximately a quarter (500 

thousand acre feet) of the 2.1 million acre feet water 

export shortfall in 2009 was due to new 

environmental restrictions, whereas three quarters 

(1.6 million acre feet) of the shortfall was due to the 

drought itself). 

7See Press Release, U.S. Dep’t of the Interior, 

Secretary Salazar, Senior Administration and 

Congressional Officials Hold Town Hall Meeting on 

California Water Shortage (June 28, 2009), available 

at http://www.doi.gov/news/pressreleases/ 

2009_06_28_release.cfm (discussing several water 

augmentation initiatives). 

8California Bay-Delta Memorandum of 

Understanding among Federal Agencies (Sept. 29, 

2009), available at http://www.doi.gov/documents/ 

BayDeltaMOUSigned.pdf. 

9 Interim Federal Action Plan for the California 

Bay-Delta (Dec. 22, 2009), available at http:// 

www.doi.gov/documents/CAWaterWorkPlan.pdf. 

10Citations to these many reports and reviews are 

provided in the Unabridged ANPR, as each issue is 

discussed in detail. 

11Randall Baxter, et al., Pelagic Organism Decline 

Progress Report: 2010 Synthesis of Results (2010), 

available at http://www.water.ca.gov/iep/docs/ 

FinalPOD2010Workplan12610.pdf. 

12The State Board, Central Valley RWQCB, and 

San Francisco Regional Water Quality Control 

Board (San Francisco RWQCB) will sometimes be 

referred to collectively as the ‘‘Water Boards.’’ 

www.regulations.gov, docket number 

EPA–R09–OW–2010–0976. EPA 

suggests reviewing this document prior 

to submitting comments. 

This ANPR has no regulatory impact 

or effect. The ANPR contains 

descriptions of certain EPA programs 

relevant to the Bay Delta Estuary and 

poses questions about how these 

programs could better protect and 

improve water quality for the benefit of 

aquatic resources in the Bay Delta 

Estuary. This ANPR marks the 

beginning of a process to consider 

possible changes to EPA programs in the 

Bay Delta Estuary. 

If EPA decides to pursue regulatory 

changes as a result of this ANPR, those 

regulatory changes will be made 

pursuant to appropriate formal 

rulemaking procedures. If changes to 

any regulations, rules, guidance or 

statutes are proposed and ultimately 

made final, to the extent such changes 

would require and/or authorize changes 

to state or tribal water quality standards 

or other regulations, states or authorized 

tribes would be affected. If changes to 

state or tribal regulations result from 

any final rule that EPA may promulgate 

in the future, entities subject to 

compliance with state or tribal 

regulations would also potentially be 

affected. For example, states and tribes 

authorized to implement the National 

Pollutant Discharge Elimination System 

(NPDES) Permit Program would need to 

ensure that permits they issue include 

any limitations on discharges necessary 

to comply with any water quality 

standards established as a result of any 

subsequent final rulemaking. Therefore, 

entities discharging pollutants to waters 

of the United States under NPDES could 

be affected by subsequent proposed and 

final rulemaking. 

I. Purpose of This ANPR 

The Bay Delta Estuary is a complex 

web of waterways, islands, and levees at 

the junction of the San Francisco Bay 

and the Sacramento and San Joaquin 

Rivers.1 The Bay Delta Estuary is the 

hub of California’s water distribution 

system, supplying some or all of the 

drinking water to 25 million people and 

irrigation water to 4 million acres of 

farmland. 

Water quality and aquatic resources in 

the Bay Delta Estuary are under serious 

stress. All of the waters of the Bay Delta 

Estuary and most of its tributaries are 

listed as impaired for one or more 

parameters under the federal Clean 

Water Act.2 Populations of many 

formerly abundant open-water (i.e., 

pelagic) fish species, including delta 

smelt, longfin smelt, and threadfin shad, 

have collapsed in recent decades. 

Anadromous 3 fishes, including the 

winter run chinook salmon, have 

suffered a similar decline. The decline 

of these aquatic resources has generated 

debate over water resource management 

in the Bay Delta Estuary. Delta interests, 

including state and federal agencies, 

environmental groups, urban and 

agricultural water users, commercial 

and recreational fishermen, and others 

have spent many years grappling with 

Bay Delta Estuary resource issues. 

Concerns regarding Bay Delta Estuary 

water resource management increased 

during the 2009 water year 4 as water 

users and resource managers struggled 

with the effects of three years of 

drought. Water export limitations 

caused by the drought and by 

restrictions imposed under the federal 

Endangered Species Act (ESA) 5 to assist 

struggling endangered species 

significantly reduced the availability of 

water for agricultural and urban uses.6

At the same time, the salmon fishery 

was closed on most of the West Coast 

for a second consecutive year as a result 

of declines in that fishery. Both the 

agricultural and fishery sectors suffered 

job losses as a result of the drought and 

the water export restrictions. 

The federal government responded to 

this ongoing water management crisis 

with a broad set of actions.7 One of 

those actions was the creation of the 

Federal Bay Delta Leadership 

Committee, a Cabinet-level, multiagency committee charged with 

coordinating federal responses to Bay 

Delta Estuary issues.8 The Federal Bay 

Delta Leadership Committee released its 

Interim Federal Action Plan for the 

California Bay-Delta (Federal Action 

Plan) on December 22, 2009, outlining 

the federal government’s plan to address 

the Bay Delta Estuary and to work with 

the State of California to build a 

sustainable water future.9 The Federal 

Action Plan includes actions by EPA to 

‘‘assess the effectiveness of the current 

regulatory mechanisms designed to 

protect water quality in the Delta and its 

tributaries, including standards for 

toxics, nutrients, and estuarine habitat 

protection.’’ EPA will also evaluate 

voluntary mechanisms that may be used 

to restore water quality in the Bay Delta 

Estuary. This ANPR is the beginning of 

this assessment. 

New scientific information about the 

Bay Delta Estuary and its aquatic 

resources has substantially increased in 

the past few years. This information has 

been developed and/or reviewed in 

reports 10 synthesizing information on 

aquatic resources and water quality by 

the following entities: the State/Federal 

Interagency Ecological Program Pelagic 

Organism Decline science team,11 the 

State’s Delta Vision Blue Ribbon Task 

Force, the Public Policy Institute of 

California, the U.S. Fish and Wildlife 

Service and National Marine Fisheries 

Service as part of their biological 

opinions and associated independent 

science reviews, the California State 

Water Resources Control Board (State 

Board) and the Central Valley Regional 

Water Quality Control Board (Central 

Valley RWQCB).12 Most of these studies 

and reports involve resources protected 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 9711 

13Much of EPA’s statutory mandate is to perform 

oversight and review of state water quality agency 

activities. 

14Federal Insecticide, Fungicide and Rodenticide 

Act, 7 U.S.C. 136–136y (2006). 

15 STATE WATER RES. CONTROL BD., CENT. VALLEY

WATER BD., & SAN FRANCISCO BAY WATER BD., 

STRATEGIC WORKPLAN FOR ACTIVITIES IN THE SAN

FRANCISCO BAY/SACRAMENTO-SAN JOAQUIN DELTA

ESTUARY (2008), available at http://www.

waterboards.ca.gov/waterrights/water_issues/

programs/bay_delta/strategic_plan/docs/baydelta_

workplan_final.pdf. 

16National Environmental Policy Act, 42 U.S.C. 

4321–4370f (2006). 

17Natural Community Conservation Plan Act, 

CAL. FISH & GAME CODE § 2800–2835 (2003). 

18Although the scope of the BDCP covers at least 

nine listed aquatic species and a geographic area of 

over one-half million acres, the BDCP is not 

intended to be a comprehensive Delta recovery 

plan. By its own terms, it is intended to meet ESA 

requirements by addressing only the operations of 

the state and federal water export projects and their 

impacts on listed species and their habitat. 

19CAL. WATER CODE § 85300–85350 (2010). 

20Letter from Delta Independent Science Board to 

Phil Isenberg, Chair, Delta Stewardship Council 

(Jan. 26, 2011), available at http:// 

www.deltacouncil.ca.gov/delta_science_program/

pdf/isb/d-isb_20110126_stressor_short_memo_final.

pdf. 

21DELTA VISION BLUE RIBBON TASK FORCE, DELTA

VISION STRATEGIC PLAN (Oct. 2008), available at 

http://deltavision.ca.gov/StrategicPlanningProcess/

StaffDraft/Delta_Vision_Strategic_Plan_standard_

resolution.pdf; Estimate of federal and state 

endangered and threatened species based on 

discussion with U.S. Fish & Wildlife Service 

biologists; BAY DELTA CONSERVATION PLAN, STEERING

COMMITTEE WORKING DRAFT (Nov. 18, 2010), 

available at http://baydeltaconservationplan.com/

Libraries/Whats_in_Plan/draft_BDCPreport_

11292010_ClickableLinks7.pdf; CALFED BAY DELTA

PROGRAM, MULTI-SPECIES CONSERVATION STRATEGY, 

FINAL PROGRAMMATIC EIS (July 7, 2000), available at 

http://dfg.ca.gov/erp/envcomp_mscs.asp. 

under the Clean Water Act and other 

EPA programs. 

EPA is using this ANPR to solicit and 

synthesize existing scientific 

information regarding the biological, 

chemical, and physical integrity of the 

Bay Delta Estuary’s aquatic resources. 

EPA will comprehensively review this 

information as it evaluates its statutory 

and regulatory options in the Bay Delta 

Estuary and will develop an appropriate 

response. Specifically, the purposes of 

this ANPR are: 

(1) To review the current status of the 

EPA and Water Boards’ 13 responses to 

adverse water quality conditions that 

have been identified as potential 

contributors to the Bay Delta Estuary’s 

aquatic resources decline; 

(2) To determine how best to 

implement existing programs under the 

Clean Water Act and the Federal 

Insecticide, Fungicide and Rodenticide 

Act 14 to improve Bay Delta Estuary 

water quality for aquatic resources; 

(3) To identify barriers, either 

programmatic or statutory, to improving 

Bay Delta Estuary water quality; 

(4) To identify any additional 

scientific information regarding water 

quality related to aquatic resources in 

the Bay Delta Estuary; and 

(5) To solicit input on whether EPA 

should be taking new or different 

actions under its programs to address 

aquatic resource problems in the Bay 

Delta Estuary. 

Specific topics on which EPA is 

requesting comments appear in the 

sections below. 

Related Efforts in the Bay Delta Estuary 

There are several major efforts 

underway to address Bay Delta Estuary 

resources, including the regulatory 

programs of the Water Boards under 

state and federal water quality statutes. 

In July 2008, the Water Boards adopted 

a Strategic Workplan to coordinate and 

guide their Bay Delta Estuary 

activities.15 Over the next several years, 

these state activities will include, 

among others, multiple point source 

permit renewals, new pollutant and 

flow standards for the southern Delta 

and lower San Joaquin River, and Total 

Maximum Daily Loads (TMDLs) for 

pesticides in the Central Valley. EPA 

continues to support many of the 

elements in the State’s Workplan 

through technical and financial 

assistance. 

Any EPA action taken as a result of 

this ANPR will complement the Water 

Boards’ actions, as EPA’s priority is to 

support and augment these efforts. As 

these efforts unfold, EPA will monitor 

their progress and determine whether 

additional actions, consistent with its 

statutory authorities and 

responsibilities, are needed to ensure 

that the requirements of the Clean Water 

Act are satisfied. Finally, regardless of 

whether EPA pursues any new actions 

as a result of this ANPR, EPA believes 

the information gathered through the 

ANPR process may provide a factual 

basis for EPA’s ongoing activities under 

the Clean Water Act, the National 

Environmental Policy Act,16 and other 

federal statutes in the Bay Delta Estuary. 

There are other federal and state water 

resource planning efforts underway in 

the Bay Delta Estuary. Stakeholders and 

relevant government agencies are 

engaged in developing the Bay Delta 

Conservation Plan (BDCP) under the 

federal Endangered Species Act and the 

California Natural Community 

Conservation Plan Act.17 The BDCP 

focuses on the recovery of ESA-listed 

species and their habitat in the Bay 

Delta Estuary and is expected to include 

major proposals for changing how water 

is diverted and conveyed through the 

Bay Delta Estuary to the state and 

federal water export facilities in the 

south Delta.18 The EPA’s 

responsibilities under the Clean Water 

Act to protect designated uses, such as 

estuarine habitat, fish migration, and 

threatened and endangered species, 

overlap with ESA requirements being 

addressed in the BDCP. Some actions 

taken pursuant to the BDCP will need to 

comply with both the ESA and Clean 

Water Act. To that end, EPA will ensure 

that any action it might take as a result 

of this ANPR will be closely 

coordinated with other federal and state 

actions related to the BDCP, any 

biological opinions on water operations 

affecting the Bay Delta Estuary, and any 

other actions requiring ESA compliance. 

In addition, recent state legislation 

has established the Delta Stewardship 

Council (DSC), an independent state 

agency charged with developing a 

comprehensive resource management 

plan, the Delta Plan, by January 2012.19

The Delta Plan is intended to guide state 

and local agencies to help achieve the 

state’s coequal goals of a reliable water 

supply and a restored Delta ecosystem. 

To inform the Delta Plan, the DSC’s 

Independent Science Board will 

evaluate the multiple stressors in the 

Bay Delta Estuary.20 Any EPA action 

taken as a result of this ANPR will also 

be coordinated with this and other 

related efforts. 

The National Academy of Sciences 

(NAS) has initiated a review of some 

aspects of the science supporting ESA 

protections in the Bay Delta Estuary. 

Much of that scientific information is 

also relevant to Clean Water Act 

programs. Accordingly, EPA is 

coordinating with the NAS to assure 

that scientific evaluations serve the 

multiple regulatory programs in the Bay 

Delta Estuary. 

Scope of This ANPR 

This ANPR is focused on the most 

significant water quality factors 

adversely affecting aquatic species 

designated uses in the Bay Delta 

Estuary. Aquatic species, specifically 

the salmonids and pelagic species 

suffering significant population collapse 

during the last decade, brought the Bay 

Delta Estuary’s water resource 

management issues into sharp focus in 

recent years. EPA recognizes that the 

Bay Delta Estuary supports over 750 

species of fish, mammals, birds, reptiles, 

amphibians, invertebrates, and plants, 

and that forty or more of these species 

are listed under state and/or federal 

endangered species laws.21 This ANPR 

is focused on aquatic species designated 

uses for waterbodies in the Bay Delta 

Estuary, but welcomes comment on how 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

9712 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 

22The National Research Council panel currently 

evaluating several Bay Delta Estuary science issues 

may be ‘‘ranking’’ factors associated with the decline 

of ESA listed species and other at-risk species. That 

ranking and the associated report is not due until 

2011. Similarly, the Delta Independent Science 

Board has initiated a process to evaluate and rank 

the relative importance of multiple stressors and, 

especially, to consider the interactive effects of 

these multiple stressors. See Delta Stressors 

Workshop, Meeting Notice (Dec. 30, 2010), 

available at http://www.deltacouncil.ca.gov/delta_

science_program/pdf/isb/d-isb_2011_01_workshop_

stressors_mtg_notice_122810.pdf. 

other species are being affected by water 

quality. 

This ANPR does not comprehensively 

discuss water quality issues related to 

other designated uses, including 

drinking water, recreation, fish 

consumption, agriculture, etc. For 

example, water contact has been 

restricted in certain Bay Delta Estuary 

waters due to toxic blue-green algae 

blooms. EPA acknowledges the ongoing 

need to address these other issues. 

II. Program Areas for Public Comment 

In this ANPR, EPA is asking the 

public to consider broadly whether EPA 

should take new or different actions 

under its programs to address problems 

in the Bay Delta Estuary. EPA is not 

limiting its request to actions that would 

require actual rulemaking; there may be 

a range of changes in EPA’s activities in 

the Bay Delta Estuary that would be 

constructive, including enforcement, 

research, revisions to water quality 

standards, etc. Any change in EPA 

activities would be dependent on 

existing authority and the availability of 

existing or new resources. Any changes 

requiring EPA rulemaking would 

provide for public comment through the 

notice and comment rulemaking 

process. 

A substantial amount of research was 

performed and evaluated in connection 

with the scientific review of the pelagic 

organism decline. As noted above, that 

process identified a number of potential 

stressors affecting the Bay Delta Estuary 

aquatic ecosystem. Many of those 

potential stressors are directly or 

indirectly affected by the EPA programs 

described above. EPA has identified 

certain topics for more focused 

consideration in this ANPR. These are: 

—Ammonia 

—Selenium 

—Pesticides 

—Contaminants of Emerging Concern 

—Estuarine Habitat 

—Fish Migration Corridors 

—Wetlands 

EPA has not made any attempt to rank 

these topics as to their importance in 

resolving Bay Delta Estuary issues.22

EPA’s preliminary evaluation suggests 

that each of these topics, if addressed, 

could contribute to a resolution of Bay 

Delta Estuary resource conflicts. While 

this ANPR discusses these topics 

separately, EPA is mindful that the more 

significant concern is the cumulative 

and interactive effects of multiple 

stressors on the Bay Delta Estuary’s 

aquatic inhabitants. Commenters may 

also identify additional topics that 

impact Bay Delta Estuary resource 

management, if EPA has some 

programmatic involvement in the topic. 

Many activities discussed in this 

notice have been or are now the subject 

of a formal or informal rulemaking 

process conducted by either EPA or a 

related state or federal agency. Nothing 

in this notice is intended to supersede 

those ongoing processes, nor does this 

notice constitute a decision under any 

of those processes. If commenters have 

submitted material in connection with 

those other processes that is believed to 

be relevant to the issues raised in this 

notice, the commenter may either 

reference the earlier submission (if it 

was submitted to EPA), attach the 

earlier submission (if it was submitted 

to a different agency), or, if appropriate, 

provide a link to the material online. 

Please provide the reason(s) for answers 

to the following questions and 

scientific, policy, and/or legal 

information with citations that support 

your comments. 

A. Contaminants 

1. Contaminants—General 

a. Are there contaminants, other than 

those named above, causing adverse 

impacts to aquatic resource designated 

uses in the Bay Delta Estuary and that 

should receive more focused review? 

b. How can pollutant-specific water 

quality criteria effectively address or 

incorporate interactive effects between 

multiple contaminants and other 

physical, chemical, and biological 

stressors? 

c. What methods can be used in 

developing and implementing TMDLs to 

effectively address or incorporate 

interactive effects between multiple 

contaminants and other physical, 

chemical, and biological stressors on 

individual water bodies or for water 

bodies within a watershed? 

d. What information exists about how 

climate change impacts will affect 

contaminant pollution (generally or for 

individual contaminants)? 

2. Ammonia: Toxic and Nutrient Effects 

a. What, if any, information is 

available on the sources or impacts of 

total ammonia nitrogen in the Bay Delta 

Estuary that is not reflected or cited 

above? 

b. Is there any information available 

that suggests site-specific water quality 

standards for total ammonia nitrogen in 

the Bay Delta Estuary may be more 

effective than current standards due to 

unique hydrological, chemical, 

biological, or physical conditions? 

c. What information is needed to 

determine effective site-specific water 

quality standards for total ammonia 

nitrogen, including narrative or numeric 

criteria? 

d. What information is available on 

nonpoint sources of total ammonia 

nitrogen and how they may most 

effectively and efficiently be controlled? 

3. Selenium 

a. What, if any, additional information 

is available to better characterize 

selenium sources, loadings and impacts 

within the watershed of the Bay Delta 

Estuary? 

b. What data, studies, and analytical 

techniques (for example, models) could 

be used to improve our understanding 

of the physical processes, including 

surface-groundwater interactions, 

controlling selenium mobilization and 

transport to and within the Bay Delta 

Estuary? 

c. What data are needed to track 

selenium impacts in the Bay Delta 

ecosystem as currently configured, and 

to evaluate potential impacts of 

selenium under changed flow and 

transport conditions into and within the 

Delta? 

d. Are there additional selenium 

control methods or programs that 

should be considered for reducing 

selenium inputs and impacts? 

4. Pesticides 

a. What, if any, additional scientific 

information is available on (a) the 

effects of pesticides in stormwater 

discharges, or (b) the potential 

interactive effects of combinations of 

pesticides on aquatic resources in the 

Bay Delta Estuary? 

b. What, if any, actions should EPA 

take under its authority to improve the 

effectiveness of regulating pesticide 

contamination of the Bay Delta Estuary 

watershed? 

c. How can the process for 

establishing numeric water quality 

criteria be streamlined while 

maintaining technical integrity? 

d. What are the benefits and 

constraints of using fish tissue in place 

of or in addition to water column 

concentrations when establishing water 

quality criteria for pesticides? 

e. Are there testing protocols that 

would effectively and efficiently 

identify synergistic toxic effects in the 

Bay Delta Estuary? 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 9713 

f. What, if any, specific combinations 

of contaminants are of particular 

concern in the Bay Delta Estuary? 

g. Should EPA and our state partners 

move away from evaluating isolated 

aquatic species for one or two 

pollutants, and towards evaluations of 

water conditions more representative of 

the actual aquatic conditions in the Bay 

Delta Estuary? How might this be done? 

h. What new or revised effluent 

limitations, monitoring requirements or 

other permit requirements could be 

included in NPDES permits for 

discharges of pesticides from Municipal 

Separate Storm Sewer Systems (MS4s) 

in the Bay Delta Estuary in order to 

better meet the regulatory standard of 

reducing discharges to the maximum 

extent practicable? What information is 

necessary to determine permit 

requirements, such as identifying 

effluent limits that can effectively 

reduce ambient contaminant 

concentrations and restore designated 

uses? Please provide any available 

information on water quality benefits 

that may result from such requirements. 

i. What new or revised effluent 

limitations, monitoring requirements or 

other permit requirements could be 

included in NPDES permits for 

stormwater discharges associated with 

construction activity and/or stormwater 

discharges associated with industrial 

activity to address pesticides? What 

information is necessary to determine 

permit requirements, such as identifying 

effluent limits that can effectively 

reduce ambient contaminant 

concentrations and restore designated 

uses? Please provide any available 

information on water quality benefits 

that may result from such requirements. 

j. Should EPA use its residual 

designation authority at 40 CFR 122.35 

to designate currently unregulated small 

MS4s to ensure that municipalities have 

programs in place to control the 

discharge of pesticides in stormwater to 

the maximum extent practicable? What 

information is necessary to determine 

permit requirements, such as identifying 

effluent limits that can effectively 

reduce ambient contaminant 

concentrations and restore designated 

uses? Please provide any available 

information on water quality benefits 

that may result from such requirements. 

k. Should EPA use its residual 

designation authority at 40 CFR 

122.26(a)(9)(i)(C)–(D) to designate 

currently unregulated stormwater 

discharges that contribute pesticides to 

surface waters? What information is 

necessary to determine permit 

requirements, such as identifying 

effluent limits that can effectively 

reduce ambient contaminant 

concentrations and restore designated 

uses? Please provide any available 

information on water quality benefits 

that may result from such requirements. 

5. Contaminants of Emerging Concern 

a. What, if any, additional information 

is available regarding the effects of CECs 

on aquatic resources in the Bay Delta 

Estuary? 

b. What, if any, specific information 

exists to identify the sources and nature 

of discharges of CECs into the Bay Delta 

Estuary? 

c. What, if any, monitoring 

mechanisms or methodologies are 

available to assist in identifying CECs? 

d. What, if any, methods are most 

effective to minimize introduction of 

CECs into the Bay Delta Estuary? 

B. Protecting Estuarine Habitat, Fish 

Migration Corridors and Wetlands 

1. Estuarine Habitat 

a. What information is available on 

the effect of lower salinities in the 

western Delta on undesirable species, 

such as Microcystis, overbite clams, or 

jellyfish? What, if any, information is 

available to determine if an increase in 

low salinity habitat would affect the 

fate, concentration and distribution of 

nutrients and toxics that are potentially 

negatively affecting the estuarine food 

web? 

b. Could the frequency, area, and/or 

duration of low salinity habitat be 

changed so as to achieve ecosystem 

benefits for the suite of species that use 

the low salinity zone? If so, how? Is 

historical data on inter- or intra- annual 

frequency of variability the best basis for 

setting goals or are there other bases that 

could be used? How might climate 

change impacts, including sea level rise, 

affect the size, frequency, and duration 

of low salinity habitat? 

c. Are methods available for more 

systematically addressing ecological or 

biological connections between 

springtime locations of low salinity 

habitat and subsequent conditions of the 

low salinity zone in the fall? If so, what 

are they and what are their strengths 

and weaknesses? 

d. Would changes in water system 

operations to move the low salinity zone 

seaward in the fall adversely affect the 

reservoir storage needed to conserve 

salmonid fish spawning and other 

designated uses in the watershed? If so, 

under what conditions? 

e. What information is available on 

the effects of salinity management on 

terrestrial plant communities and/or 

tidal marsh endemic species? What 

indirect effect does this have on aquatic 

communities? 

f. Does the geographic location of low 

salinity habitat have an effect on the 

quality of the habitat or its availability 

to species of concern? If so, what is the 

nature and extent of such effect? Is the 

distribution pattern of low salinity 

habitat important in determining its 

quality? 

g. Are spring/neap differences in tidal 

water quality important for aquatic 

species? If so, how should these habitat 

characteristics be evaluated? 

h. How can performance measures for 

species population and/or habitat 

condition be used to evaluate 

restoration of Bay Delta Estuary water 

quality? 

2. Fish Migration Corridors 

a. What role, if any, do gradients in 

physical and chemical constituents of 

water play in the suitability of the Bay 

Delta Estuary and San Joaquin River 

Basin migratory corridor for salmon? 

b. What are the best measures of 

success for restoration of a migratory 

corridor? Could these measures be 

incorporated into new or revised 

biological criteria protecting the fish 

migration designated use? 

c. Should temporal characteristics be 

included in the definition of the 

physical and/or chemical properties of a 

migration corridor based on a reference 

condition? If so, how? What frequency 

and duration of such a corridor is 

required for salmonids? How might 

these characteristics change with the 

impacts of climate change? 

d. Would establishing a migratory 

corridor for upmigrating adult chinook 

salmon succeed in improving adult 

migration success if temperatures in the 

river channels upstream of Vernalis are 

unchanged? If so, how? How might 

actions to establish a migratory corridor 

in the south Delta also moderate 

temperature and/or dissolved oxygen 

problems in the San Joaquin River? 

e. Are additional efforts to improve 

dissolved oxygen regimes in the Delta 

necessary to provide an adequate 

migratory corridor for San Joaquin 

salmonids? If so, what should those 

efforts include? 

f. What other information is available 

on the barriers to salmon migration in 

the Bay Delta Estuary and San Joaquin 

River watershed? 

3. Wetlands 

a. What different approaches under 

the Clean Water Act Section 404 

program should EPA consider, in 

consultation with the U.S. Army Corps 

of Engineers, to improve the protection 

of aquatic resource functions in the Bay 

Delta Estuary? 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

9714 Federal Register / Vol. 76, No. 35 / Tuesday, February 22, 2011 / Proposed Rules 

b. What information exists that 

describes the relationship between the 

quantity and quality of wetlands and 

Bay Delta Estuary water quality and fish 

populations? 

c. In light of projected impacts of 

climate change (including sea level rise 

and its effects on levee stability), what 

specific activities can EPA undertake to 

improve long-term protection of existing 

and future wetlands, especially those 

resources on subsided islands? 

III. Executive Order 12866, Regulatory 

Planning and Review 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51,735, October 4, 1993), 

this is a ‘‘significant regulatory action’’. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Order 12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

Because this action does not propose 

or impose any requirements and instead 

seeks comments and suggestions for the 

Agency to consider in possibly 

developing a subsequent proposed rule, 

the various statutes and Executive 

Orders that normally apply to 

rulemaking do not apply in this case. 

Should EPA subsequently determine to 

pursue a rulemaking, EPA will address 

the statutes and Executive Orders as 

applicable to that rulemaking. 

Dated: February 10, 2011. 

Jared Blumenfeld, 

Regional Administrator, U.S. Environmental 

Protection Agency, Region 9. 

[FR Doc. 2011–3861 Filed 2–18–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2010–0003; Internal 

Agency Docket No. FEMA–B–1170] 

Proposed Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Proposed rule; correction. 

SUMMARY: On January 7, 2011, FEMA 

published in the Federal Register a 

proposed rule that included an 

erroneous Base Flood Elevation (BFE) 

for the Skykomish River in Snohomish 

County, Washington. The BFE currently 

in effect for the location approximately 

216 feet downstream of Burlington 

Northern Santa Fe Railway should have 

been listed as 355 feet, referenced to the 

North American Vertical Datum of 1988. 

DATES: Comments pertaining to the 

Skykomish River BFE for the location 

approximately 216 feet downstream of 

Burlington Northern Santa Fe Railway 

are to be submitted on or before May 23, 

2011. 

ADDRESSES: You may submit comments, 

identified by Docket No. FEMA–B– 

1170, to Luis Rodriguez, Chief, 

Engineering Management Branch, 

Federal Insurance and Mitigation 

Administration, Federal Emergency 

Management Agency, 500 C Street, SW., 

Washington, DC 20472, (202) 646–4064 

or (e-mail) luis.rodriguez1@dhs.gov. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–4064 or (e-mail) 

rodriguez1@dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) publishes proposed 

determinations of Base (1% annualchance) Flood Elevations (BFEs) and 

modified BFEs for communities 

participating in the National Flood 

Insurance Program (NFIP), in 

accordance with section 110 of the 

Flood Disaster Protection Act of 1973, 

42 U.S.C. 4104, and 44 CFR 67.4(a). 

These proposed BFEs and modified 

BFEs, together with the floodplain 

management criteria required by 44 CFR 

60.3, are minimum requirements. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These proposed elevations are used to 

meet the floodplain management 

requirements of the NFIP and also are 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in those 

buildings. 

Correction 

In the proposed rule published at 76 

FR 1121, in the January 7, 2011, issue 

of the Federal Register, FEMA 

published a table under the authority of 

44 CFR 67.4. The table, entitled 

‘‘Snohomish County, Washington, and 

Incorporated Areas’’ addressed several 

flooding sources, including the 

Skykomish River. The proposed rule 

incorrectly listed the effective BFE for 

the Skykomish River, for the location 

approximately 216 feet downstream of 

Burlington Northern Santa Fe Railway. 

The effective BFE for that location was 

listed as 359 feet, referenced to the 

North American Vertical Datum of 1988. 

The correct effective BFE is 355 feet, 

referenced to the North American 

Vertical Datum of 1988. The proposed 

modified BFE was correctly listed as 

351 feet, referenced to the North 

American Vertical Datum of 1988. This 

proposed rule correction is reopening 

the comment period for the Skykomish 

River, for the location approximately 

216 feet downstream of Burlington 

Northern Santa Fe Railway, due to the 

error in listing the effective BFE in the 

previously published proposed rule at 

76 FR 1121. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: February 11, 2011. 

Sandra K. Knight, 

Deputy Federal Insurance and Mitigation 

Administrator, Mitigation, Department of 

Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2011–3865 Filed 2–18–11; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 252 

RIN 0750–AH05 

Defense Federal Acquisition 

Regulation Supplement; Passive Radio 

Frequency Identification (DFARS Case 

2010–D014) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

update requirements relating to the use 

of passive Radio Frequency 

Identification (RFID). 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before April 

25, 2011, to be considered in the 

formation of the final rule. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS