Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39949 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2009–0596; FRL–9691–3] 

RIN 2040–AF41 

Effective Date for the Water Quality 

Standards for the State of Florida’s 

Lakes and Flowing Waters 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing an extension 

of the July 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 six 

months to January 6, 2013. EPA’s inland 

waters rule currently includes an 

effective date of July 6, 2012, for the 

entire regulation except for the sitespecific alternative criteria provision, 

which took effect on February 4, 2011. 

This extension of the July 6, 2012, 

effective date for the inland waters rule 

to January 6, 2013, does not affect or 

change the February 4, 2011, effective 

date for the site-specific alternative 

criteria provision. 

DATES: The revision to § 131.43 in this 

final rule is effective January 6, 2013. 

The effective date of § 131.43, revised 

on December 6, 2010 (75 FR 75805), and 

delayed on March 7, 2012 (77 FR 13949) 

to July 6, 2012, is further delayed until 

January 6, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–OW–2009–0596. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information of which 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted 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 through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA West Room 

3334, 1301 Constitution Avenue NW., 

Washington, DC 20004, Attention: 

Docket ID No. EPA–HQ–OW–2009– 

0596. 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. 

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: 

Category Examples of potentially affected entities 

Industry ........................................... Industries discharging pollutants to lakes and flowing waters in the State of Florida. 

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. 

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 indirectly 

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 indirectly 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 translated 

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 inland waters 

rule 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. 

III. Revised Effective Date 

A. Rationale for Extending the July 6, 

2012 Effective Date 

As stated in the rule itself (75 FR 

75762, December 6, 2010), the inland 

waters rule was originally 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. 

On March 7, 2012, EPA published an 

extension of the effective date of the 

rule for four months to July 6, 2012 (77 

FR 13497). On May 17, 2012 (77 FR 

29271) EPA proposed a shorter-term 

extension of the July 6, 2012, effective 


sroberts on DSK5SPTVN1PROD with RULES
39950 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

date in order to avoid the confusion and 

inefficiency that could occur should 

Federal criteria become effective while 

EPA reviews State standards for 

approval or disapproval under CWA 

section 303(c). On June 7, 2012, the 

State of Florida Division of 

Administrative Hearings ruled in favor 

of the State’s rule, enabling the State to 

officially submit its package to EPA on 

June 13, 2012. 

Extending the July 6, 2012, effective 

date of EPA’s inland waters rule to 

January 6, 2013, would avoid the 

confusion and inefficiency that may 

occur should Federal criteria become 

effective while EPA is reviewing 

Florida’s rule. This six-month extension 

will provide EPA time to review and 

approve or disapprove Florida’s rule 

under CWA section 303(c). If EPA 

approves Florida’s rule, this six-month 

extension will also allow EPA to request 

permission from the Court to finalize a 

further extension of the January 6, 2013, 

effective date for a period of time for 

EPA to withdraw the Federal criteria 

corresponding to those State criteria 

approved by EPA. Finally, if the Court 

grants EPA permission to finalize a 

further extension of the January 6, 2013, 

effective date, this six-month extension 

will allow EPA to actually finalize such 

further extension of the January 6, 2013, 

effective date to allow EPA to withdraw 

Federal criteria corresponding to those 

State standards approved by EPA. If 

EPA does not approve Florida’s 

standards, EPA expects that its inland 

waters rule would become effective 

January 6, 2013. 

Note that regarding two portions of 

EPA’s original inland waters rule— 

streams and default downstream 

protection values (DPVs) for unimpaired 

lakes—the U.S. District Court for the 

Northern District of Florida invalidated 

and remanded those two portions of the 

inland waters rule to EPA on February 

18, 2012 (FWF v. Jackson, 4:08–cv– 

00324–RH–WCS). EPA is preparing to 

propose in a separate rulemaking 

process numeric nutrient criteria for 

such streams and default DPVs. 

B. Public Comment 

EPA received twelve comments on the 

proposed extension of the July 6, 2012, 

effective date. One commenter noted 

that any extension of the inland waters 

rule effective date does not prevent 

Florida from developing protective 

numeric nutrient standards. This 

commenter provided information 

showing that Florida continues to 

experience nitrogen and phosphorusfueled algae blooms. This commenter 

asserted that the sooner numeric criteria 

are put in place, the sooner Florida 

waters will be on the path to being 

fishable, swimmable, and drinkable. 

EPA agrees with the commenter that 

control of excess nitrogen and 

phosphorus is important, however, EPA 

is finalizing this six-month extension of 

the effective date to allow EPA time to 

review the submitted State standards 

(discussed earlier) for approval or 

disapproval under CWA section 303(c). 

As mentioned earlier, having EPA’s 

criteria take effect while EPA is 

reviewing the State standards could 

cause confusion and administrative 

inefficiency for the State and regulated 

entities, something the EPA wants to 

avoid. The commenter also argued 

against granting the longer extension of 

one year that was discussed in the 

proposed rule. EPA agrees with the 

commenter and has finalized a sixmonth extension. The commenter also 

provided input on the submitted Florida 

numeric nutrient standards. Those 

comments are outside the scope of this 

rule. 

The other eleven commenters 

supported the proposal to extend the 

effective date, arguing that the 

additional time would avoid the 

confusion and inefficiency that may 

occur should Federal criteria become 

effective prior to allowing full 

consideration of the Florida Department 

of Environmental Protection’s (FDEP’s) 

nutrient standards and withdrawal of 

Federal numeric nutrient criteria 

rulemakings in Florida. The 

commenters supported extension of the 

effective date by one year as discussed 

in the proposal rather than the proposed 

three-month extension. Some of these 

commenters also proposed that EPA 

extend the effective date beyond one 

year in case more time is needed to 

withdraw its Federal nutrient criteria. 

EPA agrees that a longer extension 

than three months is warranted, but that 

six months is appropriate in order to 

provide sufficient time to allow EPA to 

take the actions described earlier. 

Therefore, based on public comment as 

well as the June 13, 2012, submission by 

Florida of its nutrient standards, EPA 

believes that a six-month extension is 

warranted. 

EPA received several comments 

urging actions related to an EPA 

rulemaking under development (i.e., not 

the inland waters rule). These 

comments are outside the scope of this 

action and therefore EPA is not 

addressing them. 

C. Good Cause Exemption 

Section 553(d)(3) of the 

Administrative Procedure Act, 5 U.S.C. 

553(d)(3), provides that ‘‘[t]he required 

publication or service of a substantive 

rule shall be made not less than 30 days 

before its effective date, except * * * 

(3) as otherwise provided by the agency 

for good cause found and published 

with the rule.’’ Today’s final rule is a 

rule that relieves a restriction, i.e., that 

delays the effective date of a Federal 

rule. Today’s rule does not establish any 

requirements but rather merely extends 

the effective date of alreadypromulgated requirements. On this 

basis, EPA has determined that there is 

‘‘good cause’’ for having this rule take 

effect upon publication in the Federal 

Register. EPA thus finds that this 

constitutes ‘‘good cause’’ under 5 U.S.C. 

553(d)(3). 

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-forVerDate Mar<15>2010 15:44 Jul 05, 2012 Jkt 226001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\06JYR1.SGM 06JYR1

sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 39951 

profit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

This final 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 

This final rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. This final rule merely 

extends the effective date of an already 

promulgated regulation. 

This final rule 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. This 

final rule does not establish any 

requirements that are applicable to 

small entities, but rather merely extends 

the date of already promulgated 

requirements. 

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 final 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 E.O. 

13045 (62 FR 19885, April 23, 1997) 

because it is not economically 

significant as defined in E.O. 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. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure is impracticable, 

unnecessary or contrary to the public 

interest. This determination must be 

supported by a brief statement. 5 U.S.C. 

808(2). As stated previously, EPA has 

made such a good cause finding, 

including the reasons therefore, and 

established an effective date of July 6, 

2012. 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. This action is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 131 

Environmental protection, Florida, 

Nitrogen/phosphorus pollution, 

Nutrients, Water quality standards. 

Dated: June 28, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR part 131 is amended 

as follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 1. The authority citation for part 131 

continues to read as follows: 

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

Subpart D—[Amended] 

■ 2. Section 131.43 is amended by 

revising paragraph (f) to read as follows: 


sroberts on DSK5SPTVN1PROD with RULES
39952 Federal Register / Vol. 77, No. 130 / Friday, July 6, 2012 / Rules and Regulations 

§ 131.43 Florida. 

* * * * * 

(f) Effective date. This section is 

effective on January 6, 2013, except for 

§ 131.43(e), which is effective February 

4, 2011. 

[FR Doc. 2012–16421 Filed 7–5–12; 8:45 am] 

BILLING CODE 6560–50–P 


sroberts on DSK5SPTVN1PROD with RULES