federal register

41161

Thursday

July 31, 1997

Part III

Environmental

Protection Agency

40 CFR Part 131

Water Quality Standards for Idaho; Final

Rule
41162 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 131

[FRL–5864–2]

Water Quality Standards for Idaho

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: EPA is promulgating water

quality standards applicable to the

waters of the United States in the State

of Idaho. These standards supersede

certain aspects of Idaho’s water quality

standards that EPA disapproved in

1996. EPA disapproved those standards

after concluding they were inconsistent

with the Clean Water Act and EPA’s

implementing regulations. The proposal

to this rulemaking was published in the

Federal Register on April 28, 1997. EPA

is promulgating new use designations

for 5 specified waterbodies in the state

of Idaho, as well as a variance procedure

that may be used to obtain relief from

those use designations. Today’s rule

also establishes temperature criteria

applicable to bull trout spawning and

rearing in specified waterbodies.

Finally, EPA is promulgating a federal

rule to supersede the state’s excluded

waters provision. EPA is not

promulgating certain other aspects of

the proposed rule, due either to further

analysis by EPA or to state action which

addressed these issues. These and other

changes from the proposal are addressed

in detail in the body of this preamble

and in the response to comments

document included in the

administrative record for this

rulemaking.

EFFECTIVE DATE: September 2, 1997.

ADDRESSES: The administrative record

for today’s final rule is available for

public inspection at EPA Region 10,

Office of Water, 1200 Sixth Avenue,

Seattle, Washington, 98101, between

8:00 a.m. to 4:30 p.m. For access to the

docket materials, call Lisa Macchio at

206–553–1834 for an appointment. A

reasonable fee may be charged for

copies.

FOR FURTHER INFORMATION CONTACT: Lisa

Macchio at U.S. EPA Region 10, Office

of Water, 1200 Sixth Avenue, Seattle,

Washington, 98101 (telephone: 206–

553–1834), or William Morrow in U.S.

EPA Headquarters at 202–260–3657.

SUPPLEMENTARY INFORMATION:

Preamble Outline

A. Potentially Affected Entities

B. Background

1. Statutory and Regulatory Authority

2. Factual Background

3. Responses to Comments on Procedural

Issues

4. Indian Country Issues

C. Unclassified Waters

1. Proposal

2. Recent Idaho Actions

D. Stream Segments With Specific Beneficial

Use Designations

1. Primary Contact Recreation

i. Proposal

ii. Comments

iii. Final Rule

2. Cold Water Biota

i. Proposal

ii. Recent Idaho Actions

iii. Comments

iv. Final Rule

3. Salmonid Spawning

i. Proposal

ii. Recent Idaho Actions

iii. Comments

4. Waters Located in Indian Country

E. Temperature Criteria for Threatened and

Endangered Species

1. Bull Trout

i. Temperature Criteria

a. Proposal

b. Recent Idaho Actions

c. Comments

d. Final Rule

I. Spawning

II. Egg Incubation

III. Juvenile Rearing

ii. Distribution

a. Proposal

b. Recent Idaho Actions

c. Response to Comments

d. Final Rule

iii. Modifications to Bull Trout Criteria and

Distribution

2. Sturgeon

i. Proposal

ii. Recent Idaho Actions

3. Snails

i. Proposal

ii. Comments

iii. Final Rule

F. Antidegradation Policy

G. Mixing Zone Policy

1. Proposal

2. Recent Idaho Actions

H. Excluded Waters Provision

1. Proposal

2. Comments

3. Final Rule

I. Federal Variances

1. Proposal

2. Comments

3. Final Rule

J. Executive Order 12866

1. Use Attainability

2. Overview of Methodology to Estimate

Potential Costs Related to New Use

Designations

3. Results for Stream Segments With

Specific Use Designation

4. Overview of Approach to Estimate

Potential Costs Related to New

Temperature Criteria

5. Results for Stream Segments With New

Temperature Criteria

K. Regulatory Flexibility Act as Amended by

the Small Business Regulatory

Enforcement Fairness Act of 1996

L. Submission to Congress and the General

Accounting Office

M. Unfunded Mandates Reform Act

N. Paperwork Reduction Act

A. Potentially Affected Entities

Citizens concerned with water quality

in Idaho may be interested in this rule.

Entities discharging pollutants to waters

of the United States in Idaho could be

indirectly affected by this rule since

water quality standards are used in

determining National Pollutant

Discharge Elimination System (NPDES)

permit limits. Categories and entities

which may ultimately be affected

include:

Category Examples of potentially affected entities

Industry .............. Industries discharging pollutants to surface waters

in Idaho.

Municipalities ..... Publicly-owned treatment

works discharging pollutants to surface waters in

Idaho.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action. This table lists

the types of entities that EPA is now

aware could potentially be affected by

this action. Other types of entities not

listed in the table could also potentially

be affected by this action. To determine

whether your facility is affected by this

action, you should carefully examine

the applicability criteria in § 131.36 of

Title 40 of the Code of Federal

Regulations (CFR). If you have any

questions regarding the applicability of

this action to a particular entity, consult

the person listed in FOR FURTHER

INFORMATION CONTACT section.

B. Background

1. Statutory and Regulatory Authority

The preamble to the April 28, 1997

proposal provided a general discussion

of EPA’s statutory and regulatory

authority to promulgate water quality

standards. See 62 FR 23004–23005. EPA

incorporates that discussion by

reference here. Commenters questioned

EPA’s authority to promulgate certain

aspects of the proposal. EPA is

responding to those comments in the

appropriate sections of this preamble,

and in the response to comments

document included in the

administrative record for this

rulemaking. Where appropriate, EPA’s

responses expand upon the discussion

of statutory and regulatory authority

found in the proposal.

2. Factual Background

EPA also incorporates by reference

the factual background provided in the
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41163

preamble to the proposal, which

covered Idaho’s 1994 submittal of its

water quality standards package, EPA’s

disapproval of certain aspects of this

package, and the District Court’s

decision in ICL v. Browner ordering EPA

to promulgate standards to supersede

those that had been disapproved. See 62

FR 23005.

Shortly before the April 28, 1997

proposal, Idaho submitted the results of

temporary rulemaking actions to

address certain aspects of EPA’s June

25, 1996 disapproval. This March 23,

1997, submittal includes permanent

rules that had been adopted by the State

Board of Health and Welfare in

November of 1996 (addressing, among

other things, antidegradation) and

temporary rules adopted February of

1997 (addressing use designations for

Lindsay Creek and West Fork Blackbird

Creek). Because of the proximity of this

submittal to EPA’s court-ordered

deadline for proposing federal water

quality standards, EPA was not able to

act on this submission prior to proposal.

On May 27, 1997, EPA approved the

State’s new antidegradation policy and

conditionally approved the use

designations for Lindsay and West Fork

Blackbird Creeks subject to completion

of consultation required under section 7

of the Endangered Species Act (ESA).

For the Lindsay and West Fork

Blackbird Creek designations, final

approval is also contingent upon

completion of steps necessary to convert

the state rulemaking from temporary to

permanent status.

On June 19, 1997, Idaho adopted

another temporary rule addressing

unclassified waters, mixing zones,

temperature criteria for bull trout, and

use designations for 29 specific

waterbodies that had been the subject of

EPA’s June 25, 1996 disapproval. On

June 25, 1997, Idaho submitted a

package for EPA’s approval that

included these temporary rulemakings,

as well as use attainability analyses for

certain other waterbodies addressed in

the June 25, 1996 disapproval. On July

15, 1997, EPA issued a letter

conditionally approving the unclassified

waters, mixing zone, and use

designation aspects of the state’s

submittal subject to both the completion

of ESA section 7 consultation and the

state taking the steps necessary to

convert the rule from temporary to

permanent status. Both the May 27,

1997, and the July 15, 1997, approval

letters are included in the docket for

today’s rulemaking. The rationales for

these approval actions are discussed in

detail below.

3. Responses to Comments on

Procedural Issues

EPA received comments on a number

of issues related to the procedural

aspects of this rulemaking. Because

these comments relate to all aspects of

the rule, they will be addressed first.

Comment: Many commenters

complained about the brevity of the

comment period. Commenters requested

extensions of varying length, asserting

that the short public comment period

means that the proposed rule will not

receive the public review it deserves.

Some commenters objected to the form

of notice used by EPA, claiming that

publication in the Federal Register is

not adequate.

Response: None of the comments

included a showing that the 30 days

comment period provided was

inadequate as a matter of law. While

EPA strives to accommodate requests for

reasonable extensions to the extent

practicable, a 30 day extension was not

feasible here, given both the statutory

deadline for final promulgation and the

Court’s order requiring a final rule by

July 21, 1997. The inflexible deadline

for promulgation meant that any

extension of time for the comment

period would necessarily shorten the

time available for EPA to review

comments received. Since comments

received from the public are only

meaningful to the extent the Agency has

time to review them, EPA decided that

a 30-day comment period was optimal

in this case. EPA believes that the

significant turnout at the public hearing,

the volume of written comments, and

the diverse interests represented by the

commenters demonstrate that

meaningful public review was available

on the proposal.

To maximize the utility of the 30 days

which EPA was able to provide, the

agency issued an advance notice in the

Federal Register that it planned to

propose water quality standards to

address the Idaho standards it had

disapproved in June 1996, issued press

statements at the time of the advance

notice and the proposal, and put a copy

of the proposal on the Internet. At the

hearing, EPA also made available a fact

sheet which explained how to find the

proposal on the Internet.

EPA acknowledges that this

rulemaking raised complicated

technical issues, and that it is likely that

information relevant to today’s rule will

continue to surface. EPA has attempted

to provide streamlined mechanisms,

such as the provisions for modification

of the bull trout temperature criterion

and variance provisions for use

designations, that facilitate EPA’s ability

to address new information.

As to the assertion that a Federal

Register notice does not provide

adequate notice, EPA notes that under

the Administrative Procedure Act, the

Federal Register is the required

mechanism for providing notices of

proposed rulemaking, and as a matter of

law the public is deemed to be on notice

of matters which have been so

published. However, to enhance public

awareness, EPA issued press statements

at critical times, and is aware of at least

one newspaper article publicizing the

hearing.

Comment: The Idaho Department of

Environmental Quality (IDEQ)

commented that despite numerous

requests by DEQ to EPA over the past

year for EPA to identify which state

waters required more stringent

temperature criteria to protect bull trout,

DEQ did not learn of the breadth of

EPA’s proposal to designate thousands

of waters in Idaho for bull trout until

publication in the Federal Register

notice in late April. This, IDEQ claimed,

did not allow sufficient time to respond.

Response: One of the two sources EPA

used for identifying bull trout streams

was a list compiled by a state agency,

Idaho Department of Fish and Game

(IDFG). The waters in the other source,

the data base complied by the

interagency Interior Columbia

Ecosystem Management Project,

overlapped substantially with the

waters on the list. Accordingly,

although the state may not have known

the exact list to be proposed by EPA

until it appeared in the Federal

Register, the state should have been

generally aware of the potential

magnitude of bull trout distribution in

Idaho.

Comment: Commenters argued that

there was inadequate opportunity for

oral comment because EPA held only

one hearing a mere two weeks after

publication of notice in the Federal

Register.

Response: EPA held two sessions, one

during the day, and one during the

evening, to accommodate people with

different work and travel schedules.

While the formal 2 week notice of the

hearing was dictated by the extremely

short schedule imposed by the District

Court (a schedule which EPA sought

unsuccessfully to have modified), EPA

did take the extra steps described above

to alert the public to the rulemaking.

EPA scheduled the hearing at the

middle, rather than the end, of the

public comment period in order to

provide an opportunity for the public to

ask questions about the rule to facilitate

their final, written comments. The vast
41164 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

majority of commenters at the public

hearing later submitted more detailed

written comments.

Comment: Commenters stated that the

administrative record should have been

made available in Boise, as well as

Seattle. Commenters recounted that, at

one of the public hearings, an EPA

employee represented that a copy of the

record would be made available in

Boise, and that an index of the record

would be available to those who

requested it, but that no notice was

given to the public of such availability.

This, the commenters claimed, violated

the spirit, if not the letter, of the

Administrative Procedure Act. The

commenters requested that EPA extend

the comment period to allow the public

to review the record in Boise.

Response: The administrative record

upon which the proposal was based was

assembled and available to the public in

EPA’s Region X office in Seattle at the

time of publication of the proposed rule

in the Federal Register. Region X is the

EPA region which is responsible for

matters involving the state of Idaho.

There is nothing in the APA which

specifies where an administrative record

must be made available. Indeed, in

many EPA rulemakings, the

administrative record is maintained at

EPA Headquarters in Washington, DC;

where an EPA rulemaking concerns a

particular state or single location, the

record is typically maintained in the

offices of the regional office with

responsibility for that state.

In the present case, an EPA employee

stated at the hearing that EPA would

also make a copy of the administrative

record available in Boise shortly after. In

accordance with that offer, a copy with

an index was made available to the

public in EPA’s Boise Operations Office

approximately a week after the hearing.

While EPA had indicated at the hearing

a willingness to mail a copy of the index

in the meanwhile, it turned out that the

administrative record itself (including

an index) could be made available as

quickly as an index could be mailed out,

so there was no need to mail out the

index alone as an interim measure.

Comment: Commenters argued

broadly that the proposed rulemaking

violates due process. A commenter also

argued specifically that the proposed

rulemaking does not comply with EPA’s

public participation rules (40 CFR part

25).

Response: For the reasons stated

above, EPA believes that its rulemaking

in this case provided ample notice,

formal and informal, to the public of

what EPA was proposing, why it was

proposing, and the basis for the

proposal, and that it provided adequate

time for public comment.

EPA was required to shorten the time

periods for public notice and comment

from those cited by the commenter

because of the Court’s order. As the

proposal explained, EPA’s regulations

allow exceptions to the otherwise

applicable time periods in such

circumstances. See 40 CFR 25.2(d):

‘‘Specific provisions of court orders

which conflict with this part, such as

court-established timetables, shall take

precedence over the provisions of this

part.’’ While the commenter is correct

that the Court’s order did not itself

specifically direct EPA to limit the

public comment period, the order did

establish a specific timetable for

proposal and promulgation which

indirectly required such a result. EPA

notes that the Court’s original February

20, 1997, order directed EPA to issue a

final rule by April 21 and thus did not

allow time for any comment period. In

response to EPA’s motion for

reconsideration which sought an

extension to allow development of a

proposed rule and cited 40 CFR Part 25,

the Court directed the agency to propose

a rule by April 21, and to promulgate a

final rule by July 21, 1997. Within the

constraints of the schedule imposed by

the Court, EPA did take what steps it

could to enhance the public’s ability to

comment, through its advance notice

and the like. See responses to previous

comments.

4. Indian Country Issues

Today’s promulgation does not apply

to waters in Indian country. Although

the proposal did not address the

applicability of designated uses or the

bull trout temperature criteria to waters

in Indian country, it was never EPA’s

intent to establish such uses or criteria

for waters in Indian country by this rule.

As explained in the discussion below,

today’s rule clarifies that the

temperature criteria do not apply to

waters located in Indian country.

Regarding the use designations for

specific water bodies, EPA found after

the proposal that certain proposed use

designations would affect waters in

Indian country. For the reasons set forth

below, EPA has excluded these from the

final rule.

C. Unclassified Waters

1. Proposal

On April 28, 1997, EPA proposed to

promulgate a default use designation for

unclassified waters for the state of Idaho

which provided for the protection and

propagation of fish, shellfish, and

wildlife, and recreation in and on the

water. Specifically, EPA proposed cold

water biota and primary contact

recreation beneficial uses for

unclassified waters. EPA proposed such

standards because EPA had determined

that Idaho’s designated beneficial use

for unclassified waters was incomplete

and therefore inconsistent with the

CWA and EPA’s implementing

regulations at 40 CFR part 131 (see 62

FR 23005).

2. Recent Idaho Actions

On June 19, 1997, Idaho revised its

unclassified waters designated

beneficial use to provide for the

protection of cold water biota and

primary or secondary contact recreation.

(The revised provision also changes the

terminology from ‘‘unclassified’’ to

‘‘undesignated’’ for clarity.) On July 15,

1997, EPA approved Idaho’s revised

beneficial use for unclassified waters as

being consistent with the CWA and

EPA’s implementing regulations.

Idaho’s revised designated beneficial

use for unclassified waters provides the

same level of protection for aquatic life

that EPA had proposed, cold water

biota. This is consistent with EPA’s

findings that the majority of native

Idaho fish are classified as cold water

species and the presence of these

species occurs throughout the entire

State (62 FR 23006).

With respect to recreation, Idaho’s

revised designated beneficial use for

unclassified waters affords the state

some discretion as to whether to which

recreational use—primary or secondary

contact recreation—to apply to any

specific unclassified water. EPA

determined this flexibility was

acceptable because Idaho’s bacteria

criteria for secondary contact recreation

is equivalent to EPA’s bacteria criteria

for primary contact recreation. EPA

believes that maintaining water quality

sufficient for primary contact recreation

meets the minimum requirements of the

CWA regardless of whether or not a

water body is actually designated for

primary contact recreation. For

example, there may be situations where

primary contact recreation is

undesirable (e.g., streams used as a

source for public drinking water) or

unsafe (e.g., streams with high velocity

and large rocks), yet the state may want

to maintain water quality sufficient for

primary contact (e.g., because incidental

swimming does occur or because a

downstream segment is designated for

primary contact recreation.

In addition, Idaho established in its

unclassified waters beneficial use

designation a process by which the state

can designate undesignated waters.

Idaho’s process at IDAPA
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41165

16.01.02.101.01. b. and c. specifies that

the state may reexamine relevant data to

substantiate a specific use designation

for a specific water body when

reviewing activities for consistency with

water quality standards. This provision

essentially codifies the existing state

process for moving a water body from

the undesignated waters category

(16.01.02.101.) to the waters with

specific use designations (16.01.02.110–

160) category. Idaho’s process for

establishing beneficial use designations

for specific water bodies includes,

among other things, public

participation, and a change to the state’s

water quality standard. Whenever a

state revises its water quality standards,

those revisions are subject to EPA

review and approval. On July 15, 1997,

EPA approved this aspect of Idaho’s

unclassified waters beneficial use

designation as being consistent with the

CWA and EPA’s implementing

regulations at 40 CFR part 131.

Because Idaho has adopted a revised

unclassified waters beneficial use

designation which EPA has determined

to be in accordance with the Act, a

federal designated beneficial use for

unclassified waters is no longer required

under section 303(c)(4).

D. Stream Segments With Specific

Beneficial Use Designations

EPA had proposed to promulgate use

designations for specific water body

segments which lacked the ‘‘fishable/

swimmable’’ goal uses established in the

CWA. Specifically, EPA proposed

coldwater biota for 35 segments,

salmonid spawning for 5 segments, and

primary contact recreation for 44

segments. EPA proposed such uses

because EPA had determined that

Idaho’s designated beneficial uses for

these water body segments were

incomplete and therefore inconsistent

with the CWA and EPA’s implementing

regulations at 40 CFR part 131. See 62

FR 23007 for a more detailed discussion

of EPA’s proposal.

1. Primary Contact Recreation

i. Proposal

In EPA’s Proposed Rule (62 FR

23003), primary contact recreation was

a proposed designated beneficial use for

44 waterbody segments which were

lacking a use designation of primary

contact recreation. The State had

already designated secondary contact

recreation for those 44 water body

segments. Although EPA had

determined that Idaho’s water quality

criteria for the protection of secondary

contact recreation are as stringent as

EPA’s recommended criteria for the

protection of primary contact recreation

(see EPA’s May 27, 1997, approval

letter), EPA proposed primary contact

recreation as it believed it was required

to by the terms of the District Court’s

order. The proposal solicited comment

on the option of accepting Idaho’s

secondary contact recreation use as

protective of swimming.

ii. Comments

Several commenters supported

promulgating primary contact recreation

as the ‘‘swimmable’’ use in Idaho. Other

commenters objected to primary contact

recreation as a designation but

supported secondary as the

‘‘swimmable’’ use. EPA believes that

where a state’s secondary contact

recreation criteria are stringent enough

to protect primary contact recreation,

the choice between secondary and

primary contact recreation use

designations should be left to the State’s

discretion. Although section 510 of the

CWA does not preclude states from

adopting standards which are more

stringent than required by the Act,

EPA’s implementing regulations do not

require states to do so. EPA has

determined that in light of the state’s

bacteriological criteria, Idaho’s

secondary contact recreation use is

sufficient and is consistent with the

CWA.

iii. Final Rule

EPA’s water quality standards

regulation at 40 CFR 131.11 requires, in

part, that in establishing criteria, States

must adopt criteria with sufficient

coverage of parameters and of adequate

stringency to protect the designated use.

States may adopt criteria published by

EPA under section 304(a) of the CWA,

criteria modified to reflect site specific

conditions, or criteria based on other

scientifically defensible methods. States

are not required to have criteria more

stringent than section 304(a) criteria

unless it is determined that such criteria

do not protect the designated uses.

Except for fecal coliform bacteria, the

same criteria are applicable to primary

contact recreation and to secondary

contact recreation. EPA has determined

that Idaho’s secondary contact

recreation bacteriological criteria are as

stringent as the recommended section

304(a) Guidance for the protection of

swimming, i.e., primary contact

recreation, and are consistent with the

CWA and the requirements at 40 CFR

131.11. Therefore, a federal designated

beneficial use of primary contact

recreation for those waters already

designated for secondary contact

recreation is no longer required under

CWA section 303(c)(4). For these

reasons, EPA is not designating primary

contact recreation for those 44 water

body segments identified in the

proposed rule.

2. Cold Water Biota

i. Proposal

In June of 1996, EPA determined that

Idaho had not assigned an aquatic life

use for 35 waterbody segments (62 FR

23008–23009). In EPA’s proposed rule,

EPA proposed designating cold water

biota as the appropriate beneficial use.

EPA determined that a cold water biota

use designation, as defined in the State’s

water quality standards, is an aquatic

life use category appropriate for those

streams. See 62 FR 23008 for a more

detailed discussion of EPA’s proposal.

EPA solicited comment on whether this

held true for the 35 specific

waterbodies.

ii. Recent Idaho Actions

To date, Idaho has revised the

designated beneficial uses for the

majority of the 35 waterbody segments

lacking cold water biota designations.

On February 11, 1997, the state adopted

a temporary rule designating cold water

biota for West Fork Blackbird Creek

(SB–4211). By letter dated June 25,

1997, the State submitted to EPA

additional revised water quality

standards which were adopted as a

temporary rule by the Idaho Board of

Health and Welfare and became

effective on June 20, 1997. As part of

this revised rule, the State designated 29

of the 35 waterbody segments for cold

water biota. By letter dated May 27,

1997, EPA conditionally approved the

cold water biota uses for West Fork

Blackbird Creek as being in accordance

with the CWA and EPA’s implementing

regulations at 40 CFR 131.10. On July

15, 1997, EPA likewise conditionally

approved the June 20, 1997 temporary

rule addressing 29 segments. Therefore

EPA is not promulgating cold water

biota for these segments.

Although these revisions meet the

substantive requirements of 40 CFR part

131, the State has not completed certain

administrative requirements (e.g., public

notice and comment). In addition, the

State’s Legislature must also review the

revised water quality standards before

the standards become final. If these

designated beneficial uses are adopted

as final without modification by the

Board or Legislature, EPA’s approval

will become unconditional. If they are

modified, EPA’s approval will no longer

be applicable, and Idaho will have to

resubmit the revised standard to EPA for

review and approval. Because EPA’s

approval is not yet unconditional, the
41166 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Agency is not withdrawing the proposal

for these segments.

Idaho’s June 25, 1997, submission

included a Use Attainability Analysis

(UAA) for Soda Creek (BB 310) to

support its decision not to designate an

aquatic life use (cold water biota) for

Soda Creek. Because of the expedited

schedule dictated by the court order,

and because the UAA did not fully

explain its conclusions EPA was unable

to conclude its review of the State’s

UAA. Therefore EPA is maintaining the

cold water biota use designation in

today’s final rule. If after such review,

EPA is able to conclude that the State’s

UAA supports the unattainability of

aquatic life for this segment, EPA will

initiate rulemaking to withdraw the

federal use designation for Soda Creek.

iii. Comments

While EPA received some general

comments that cold water biota was not

uniformly appropriate across the State,

we received no data specific to Shields

Gulch, Canyon Creek, or Blackfoot River

for which a cold water biota beneficial

use is being designated. In addition the

State commented that they had no water

quality data for Shields Gulch or

Blackfoot River.

One commenter stated that cold water

biota was not an ‘‘existing’’ use for the

South Fork Coeur d’Alene River. EPA

defines existing uses at 40 CFR 131.3(g)

as ‘‘those uses actually attained in the

waterbody on or after November 28,

1975.’’ Information and data obtained

from the Idaho Division of

Environmental Quality supports cold

water biota as an existing use for the

South Fork Coeur d’Alene River. EPA

received no data to refute this. As for

Canyon Creek, although EPA did not

receive information from any

commenters which would indicate that

cold water biota is unattainable is this

water body segment, information EPA

had on water chemistry in Canyon

Creek showed that some parameters are

exceeded. However, based on this

information EPA was unable to

conclude that cold water biota use is

unattainable. An appropriate evaluation

of use attainability considers physical

and biological as well as chemical

indicators.

In addition, none of the commenters

specifically contended that a cold water

biota use was unattainable on any of the

five streams at issue on account of

compliance costs. To the extent that

commenters did raise cost concerns,

EPA’s cost methodology indicates that

the costs (which are not direct costs in

any event) would be less than predicted

by the commenters. See Section K of the

preamble.

iv. Final Rule

Because the State has designated cold

water biota for 29 of the waters in the

proposed rule, EPA’s final rule

addresses only 5 of the original

segments proposed. As stated in the

proposed rule, in designating beneficial

uses, EPA is relying on the rebuttable

presumption implicit in the CWA and

EPA’s regulations at 40 CFR part 131,

that in the absence of data to the

contrary, ‘‘fishable’’ uses are attainable.

As discussed above, the record supports

the reasonableness of this presumption,

and none of the comments rebutted it

with respect to any of the water bodies

for which EPA is promulgating

designated uses. In the future, if

additional data indicate that the

promulgated uses are not appropriate,

EPA’s final rule can be revised and/or

withdrawn.

For the reasons described above, EPA

is promulgating cold water biota as a

designated beneficial use for the

following 5 segments: Canyon Creek

(below mining impact)—PB 121S, South

Fork Coeur d’Alene River (Daisy Gulch

to mouth)—PB 140S, Shields Gulch

(below mining impact)—PB 148S,

Blackfoot River—USB 360, and Soda

Creek—BB 310.

3. Salmonid Spawning

i. Proposal

In conferring with National Marine

Fisheries Service prior to EPA’s April

28, 1997, proposed rule, EPA obtained

preliminary data indicating that for

West Fork Blackbird Creek, Grasshopper

Creek, Little Bear Creek, Blackbird

Creek and Panther Creek, salmonid

spawning was an appropriate

designated beneficial use to ensure

‘‘fishable’’ water quality for these five

water body segments. The data

indicated the presence of salmonids and

therefore EPA concluded salmonid

spawning was an existing use. Based on

this information EPA proposed

salmonid spawning as a designated

beneficial use for these segments.

ii. Recent Idaho Actions

On February 11, 1997, Idaho

designated salmonid spawning biota for

West Fork Blackbird Creek (SB–4211).

By letter dated May 27, 1997, EPA

conditionally approved this use

designation. As part of Idaho’s June 20

temporary rule (by letter dated June 25,

1997) salmonid spawning was also

designated a beneficial use for Little

Bear Creek, Blackbird Creek and Panther

Creek. The State did not designate

Grasshopper Creek for salmonid

spawning as data it had for this creek

indicated that salmonid spawning was

not an appropriate use.

With regard to Panther Creek, EPA

understands that the State intended to

designate this creek for salmonid

spawning but that, because of a

typographical error, the chart in the

temporary rule did not reflect salmonid

spawning for this segment. By letter

dated July 10, 1997, Idaho explained

that on July 22, 1997 the Idaho Board of

Health and Welfare will be requested to

amend the temporary rule to correct this

error. This error is expected to be

corrected shortly.

On July 15, 1997, EPA conditionally

approved salmonid spawning use

designation for Little Bear Creek and

Blackbird Creek. Because EPA’s

approval is not yet unconditional, the

Agency is not withdrawing the proposal

for these segments.

iii. Comments

EPA received additional information

since the proposed rule which indicates

that salmonid spawning is not an

appropriate use for Grasshopper Creek.

EPA determined that although

Grasshopper Creek may have the

potential to support salmonid spawning

as a future designated beneficial use,

insufficient data exist to justify this use

designation at this time. Therefore

neither the State’s revisions nor EPA’s

final rule designates salmonid spawning

for Grasshopper Creek.

4. Waters Located in Indian Country

After the proposal was published,

EPA ascertained that certain streams

that EPA disapproved on June 25, 1997,

were located in Indian country. EPA’s

National Indian Policy recognizes Tribal

governments as the primary parties for

setting standards and for making

environmental policy decisions

affecting their reservation environments,

consistent with Agency standards and

regulations. In a memorandum by

President Clinton dated April 29, 1994,

each executive agency is instructed to

operate within a government-togovernment relationship with federally

recognized tribal governments. EPA is to

consult, to the greatest extent

practicable and to the extent permitted

by law, with tribal governments prior to

taking actions that affect federally

recognized tribal governments. The

President’s memorandum also states

that executive departments and agencies

shall assure that tribal government

rights and concerns are considered

during the development of plans,

programs, and activities affecting tribal

trust resources. EPA determined that

promulgation of these designated uses

could be viewed as such an action, and
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41167

so sought consultation before

proceeding. After consultation with the

relevant tribal governments, EPA

determined that it would not be

appropriate to proceed with the

designation of uses for these streams at

this time.

In this case, the proposal to designate

uses on streams wholly or partially in

Indian country was unintentional and

inadvertent, done without forethought

towards either the desires of the tribal

authorities or how these designated uses

would have functioned in the absence of

a complete set of water quality

standards (e.g., accompanying criteria,

an antidegradation policy). The tribal

authorities were unanimous in their

wish that EPA not proceed with

designating these beneficial uses,

preferring instead to approach the water

quality standards in a holistic manner

and within a time frame that

accommodates other tribal priorities.

As a result of this consultation

process, portions of Hangman Creek (PB

450S), Three Mile Creek (CB 1321),

Cottonwood Creek (CB 1322), Blackfoot

River (USB 360) and Bannock Creek

(USB 430), which are partially located

in Indian country are being excluded

from this rule, as well as the entirety of

Plummer Creek (PB 340S), Cottonwood

Creek (CB 152) and Rock Creek (PB

451S). If not in Indian country,

Plummer Creek and Cottonwood Creek

(CB 152) would have been excluded

because the state has adopted acceptable

uses for them.

E. Temperature Criteria for Threatened

and Endangered Species

1. Bull Trout

i. Temperature Criteria

a. Proposal. The temperature criteria

in Idaho’s 1994 submittal applicable to

the cold water biota use classification

(22°C or less with a maximum daily

average of 19°C) and salmonid spawning

use classification (13°C or less with a

maximum daily average of 9°C) does not

provide an adequate level of protection

for bull trout. Therefore, on June 25,

1996, EPA disapproved Idaho’s

temperature criteria applicable within

geographic ranges where bull trout

occur.

EPA derived the proposed

temperature criteria for Idaho streams

designated as bull trout habitat using

EPA’s temperature criteria guidance

(Temperature Criteria for Freshwater

Fish: Protocol and Procedures; U.S.

EPA, 1977). The EPA protocol

recommends expression of temperature

criteria in two forms: (1) a short-term

maxima (protection against lethal

conditions, usually for a duration of 24

hours), and (2) a mean temperature

value (expressed as the maximum

weekly average temperature) that is

designed to protect critical life stage

functions such as spawning,

embryogenesis, growth, maturation and

development. Sufficient data were

available to derive temperature criteria

as maximum weekly average

temperatures (MWAT) that EPA

determined would be protective of

various bull trout life stages, including

spawning, egg incubation, juvenile

rearing and adult migration. Because of

the complex life history of bull trout,

EPA proposed temperature criteria

which would span a calendar year, but

that would vary depending on the

presence and thermal tolerances of

various bull trout life stages. See 62 FR

23012 for a more detailed discussion of

EPA’s proposal.

b. Recent Idaho Actions. On June 20,

1997, Idaho adopted a temporary rule

with revised temperature criteria for

bull trout. The State’s rule established a

seven-day moving average of 12°C based

on daily average water temperatures, or

shall not exceed a seven-day moving

average of 15°C based on daily

maximum water temperatures during

July, August and September.

Although Idaho has revised the

temperature criteria applicable to bull

trout, the State did not provide

information explaining the scientific

basis for the criteria. The Water Quality

Standards Regulations at 40 CFR

131.11(a) state, in part, that states must

adopt criteria to protect designated uses

and that such criteria must be based on

‘‘sound scientific rationale.’’ EPA was

unable to determine, based on the

State’s submission or other information

available to EPA, what the scientific

rationale was for Idaho’s 1997

temperature. Therefore, EPA was unable

to determine that Idaho’s 1997

temperature criteria are protective of

bull trout spawning and rearing.

Because EPA was unable to determine

that Idaho’s criteria are protective of

bull trout spawning and rearing, EPA

disapproved Idaho’s 1997 temperature

criteria for bull trout on July 15, 1997.

Therefore, EPA is proceeding with a

federal promulgation of temperature

criteria for bull trout as required by

§ 303(c) of the CWA. If at a later date,

Idaho submits a scientific rationale in

support of the 1997 criteria, and EPA is

able to determine that the technical

basis is consistent with 40 CFR 131.11,

then EPA will initiate rulemaking to

withdraw the federal criteria in today’s

rule.

c. Comments. Comment: Commenters

asserted that EPA lacks authority to

disapprove Idaho’s temperature criteria

as they relate to bull trout, and hence

lacks authority to promulgate federal

temperature criteria for bull trout.

According to these commenters, under

40 CFR 131.5, EPA’s limited role in

overseeing state WQS is to ensure that

states designate uses and establish

criteria to protect the designated uses.

Because Idaho had designated a use of

‘‘cold water biota,’’ and had criteria

protective of that use, EPA lacks

authority to disapprove Idaho’s

temperature criteria as they relate to

bull trout. One commenter cited

language in the preamble to the 1983

revisions to part 131 which the

commenter claimed evidenced that EPA

did not intend to second guess states on

their choices of designated uses.

Commenters argued that, in setting

temperature criteria for bull trout, EPA

was essentially creating a new beneficial

use, which would be a subcategory of

cold water biota, and that it is beyond

EPA’s authority to designate

subcategories of uses. Commenters also

asserted that it has been EPA’s

longstanding position that protection of

specific species within the fishable use

designation is left solely to the

discretion of the state.

Response: EPA agrees that its role in

reviewing state water quality criteria is

to ensure the criteria are protective of

designated uses. However, EPA must

also ensure that the state has designated

uses consistent with the goals of the

CWA, including the ‘‘fishable/

swimmable’’ goals. EPA therefore does

not agree with the commenters’’

implication that a state has unfettered

discretion in how it designates uses.

Section 131.10(a) provides that ‘‘[e]ach

State must specify appropriate water

uses to be achieved and protected,’’

taking into account the various goals of

the CWA (emphasis added). It follows

that EPA must disapprove a state’s use

designations if they are not appropriate

in light of those goals.

The commenters’ argument that a

state has absolute discretion concerning

when to designate subcategories of uses

misconstrues the intent of EPA’s

regulations. These commenters point to

§ 131.10(c), which provides that

‘‘[s]tates may adopt sub-categories of a

use.’’ It is true that a state need not

adopt subcategories. However, the

regulations require a state to designate

appropriate uses given the goals of the

CWA, and to adopt criteria protective of

those uses. So, for instance, if the

weight of evidence shows that salmonid

spawning is an appropriate use, a state

must adopt criteria protective of that

use. In such a situation, a state may

choose whether to designate

subcategories of uses applicable to
41168 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

particular waters, so that criteria

protective of salmonid spawning can be

narrowly targeted to those areas where

they are needed, or in the alternative to

designate only one ‘‘fishable’’ use and

apply it throughout the state. However,

if it is the latter, the criteria

accompanying that use would have to

be protective of salmonid spawning,

because a state could not designate a

single ‘‘fishable’’ use and then adopt

criteria protective of some fish but not

others. For this reason, most states in

such a situation would be likely to

designate subcategories of uses even

though not required to by EPA’s

regulation. See also EPA’s response to

the next comment below.

As explained in EPA’s June 25, 1996

disapproval letter, the state failed to do

either of these fully. While Idaho had a

salmonid spawning subcategory with

criteria intended to be protective of bull

trout, it did not apply this subcategory

to all bull trout waters. At the same

time, cold water biota temperature

criteria, which do apply to, among other

things, all bull trout waters, were not

stringent enough to protect bull trout.

EPA is promulgating more stringent

temperature criteria to protect bull trout

in those waters where they are present.

It is clearly within EPA’s authority to

promulgate standards meeting the

requirements of the Act that support

this use.

Regarding the assertion that it is

EPA’s longstanding policy to defer to

state’s designation of uses, EPA believes

this is incorrect to the extent it implies

that EPA will defer to use designations

that do not meet the requirements of the

CWA. EPA notes that these commenters

did not offer any specifics to support

their claim. In the preamble to the 1983

revisions to 40 CFR Part 131 EPA stated

that, ‘‘for EPA to mandate certain levels

of aquatic life protection within a use

would override the primary authority of

the state to adopt use classifications and

supporting criteria through public

hearings.’’ 48 FR 51410. This and other

statements were made in response to

comments urging EPA to adopt national

minimum levels of protection for water

quality. EPA’s 1983 preamble response

is generally reflective of the structure

and purpose of section 303, which

contemplates that the duty to establish

water quality standards lies with the

state in the first instance. However, it is

just as apparent from the structure of the

Act and EPA’s regulations that EPA’s

oversight role carries with it an

obligation to act so that the

requirements of the Act are met. The

commenters’ argument that EPA must

always defer to a state’s choices

regarding designation of uses and levels

of protection is clearly contrary to this

oversight responsibility.

Comment: A number of commenters

questioned EPA’s authority to

promulgate temperature criteria for bull

trout. Several commenters pointed out

that, since bull trout have not yet been

listed as endangered or threatened, EPA

could not rely on the authority of the

ESA to support its action. Commenters

also argued that, in setting temperature

criteria for bull trout, EPA is attempting

to designate ‘‘critical habitat’’ under the

ESA without following proper ESA

procedures. Commenters noted a

number of alleged failures to follow

proper ESA procedure for bull trout.

Commenters also argued that, the ESA

aside, EPA lacks authority under the

CWA to promulgate temperature criteria

for bull trout. These commenters

asserted that the CWA does not require

states to protect the most sensitive

species under the ‘‘fishable’’ use, and

that likewise, the CWA does not

authorize EPA to promulgate criteria

protective of the most sensitive species

of fish.

Response: EPA acknowledges that the

proposal’s explanation of statutory

authority to promulgate temperature

criteria focused on the ESA rather than

the CWA, when it should have given

equal standing to both statutes. This

confusion occurred because two of the

species being addressed, snails and

sturgeon, have been listed pursuant to

the ESA. For bull trout, EPA is relying

on its CWA authority to promulgate

criteria protective of appropriate uses.

Some commenters apparently inferred

this anyway, as several commented

extensively on the authority under the

CWA to promulgate criteria protective

of bull trout. Because EPA is relying on

CWA authority for bull trout criteria, it

follows that adherence to ESA

procedures for bull trout are not at issue

here.

In developing criteria for bull trout,

EPA has used the best available

information to determine the location of

bull trout spawning and rearing, and has

developed temperature criteria

protective of spawning and rearing

based upon its review of the literature

and the comments received. EPA

believes this analysis, described in

detail above, follows the mandate of

section 131.11(a)(1) that water quality

standards criteria ‘‘be based on sound

scientific rationale and [ ] contain

sufficient parameters or constituents to

protect the designated uses.’’

EPA believes the CWA and EPA’s

regulations require that criteria be

protective of the most sensitive species

within the ‘‘fishable’’ use. Protecting a

use category such as ‘‘fishable,’’ or a

subcategory such as ‘‘cold water biota,’’

plainly must mean protecting all of the

species-specific activities that occur

within that category, including the most

sensitive. The position advocated by

commenters—that not all species or

activities within a use category need to

be protected—would lead to results that

are obviously contrary to the goals of the

Act. These commenters do not explain

how they would resolve the question of

which species within a use category

would have to be protected and which

not. Presumably, the commenters’s

approach would allow states to pick and

choose which species within a use

category are deserving of protection. It

would therefore allow a state to

establish criteria protective of only the

least sensitive aquatic species, while

ignoring the rest. EPA believes, to the

contrary, that the only reasonable

reading of the Act and EPA’s regulations

requires that water quality standards

protect for all aquatic life that are

present or normally expected to be

present, to the extent supported by the

factual record. Today’s promulgation

helps to fulfill this requirement by

establishing criteria protective of bull

trout to the extent supported by sound

scientific rationale.

Comment: One commenter suggested

that EPA’s criteria should be consistent

with the four-state region in which bull

trout are found, with specific reference

to Oregon’s recently adopted criteria.

Other commenters also referenced

Oregon’s criteria as an acceptable

option.

Response: As EPA works with each

state during the triennial review

process, information on the approaches

utilized by adjacent states is shared and

considered. EPA reviewed Oregon’s

temperature criteria and technical

support documents during the

development of this rule. Following

further review of the literature, EPA is

adopting a criteria equivalent to that

recently adopted by the State of Oregon.

Comment: Several commenters

challenged EPA’s use of the maximum

weekly average temperature (MWAT).

These commenters asserted that the

criteria, measured as average daily

temperatures, was not adequately

protective. They indicated that by

allowing a weekly mean it is feasible

that the daily temperature regime could

be 10°C +/¥5°C. One suggested that it

would be more biologically defensible

for EPA to find a means to limit

maximum temperatures or diel

fluctuations at the same time as

ensuring that MWAT does not exceed

fixed limits. Several of the commenters

suggested using a 7-day average of daily

maximum temperatures, some
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41169

commenters favoring this approach

because it would provide greater

protection, others for the relative ease

and practicality of implementation.

Response: EPA has revised its

proposal to account for potential

impacts from diurnal fluctuations and is

promulgating a maximum weekly

maximum temperature (MWMT)

criterion, based on an average of the

daily maximum for a moving

consecutive 7-day period. EPA’s criteria

guidance documents, which were

followed in the development of the

proposed criteria, recommend that an

instantaneous maxima be adopted in

association with the MWAT to provide,

in part, protection from diurnal

fluctuations. EPA was unable to

determine from the literature and field

data a fixed instantaneous maxima and

therefore did not include a maxima

criterion in the proposed rule.

Following consideration of comments

and the literature, it was determined

that protection from maximum

temperatures was needed to protect the

species. Therefore, EPA modified the

proposed rule and is changing from the

proposed MWAT approach to the

MWMT adopted in this rule. The

MWMT is believed to provide greater

protection over temperature maxima

compared to the MWAT and is

consistent with other temperature

criteria recommended for bull trout.

Comment: Several commenters

suggested that EPA needed to modify

the bull trout criteria to account for

natural conditions and the natural

variability.

Response: In reviewing data on

temperature and bull trout presence/

absence, EPA found streams supporting

bull trout populations where summer

maxima temperatures exceeded 10°C

and where summer maxima were

somewhat cooler. However, most

commenters only provided data on

presence and absence of bull trout and

did not provide data on the health of

these populations. EPA was therefore

unable to conclude based on this data

that bull trout are fully supported at

temperatures above 10°C. Presence and

absence data may be best suited for

establishing the limits of bull trout

distribution. However, data on presence

and absence, without supporting

information on abundance or

population health, does not enable

definitive determinations of criteria that

will be protective. Protection of optimal

conditions is essential if a species is to

be protected with an adequate margin of

safety, and is also desirable because bull

trout have been proposed to be listed as

a ‘‘threatened species’’ under the

Endangered Species Act. Maintenance

of optimal conditions is considered

important in the restoration of the

population.

Nevertheless, EPA acknowledges the

difficulties and uncertainty that exists

in defining absolute, numeric

temperature criteria that account for all

types of natural and site-specific

variability in stream temperatures (both

spatially and temporally) found among

Idaho streams. For example, availability

of cold water refugia may ameliorate the

impacts of suboptimal temperatures

under some circumstances and might

result in supporting bull trout

populations. However, sufficient data

was not available to determine exactly

how much cold water refugia must be

available (and when and how long it

must be available) to support bull trout

populations experiencing otherwise

suboptimal conditions. The

promulgation of a single criterion

necessarily rests on assumptions about

the consistency of conditions among

Idaho streams. EPA believes the

assumptions made here are reasonable,

and are in any case unavoidable in this

instance, due to the lack of site-specific

data. In addition, to address concerns

about the site-specific nature of

temperature criteria for bull trout, EPA

has included a provision in today’s rule

providing a streamlined mechanism for

modifying the promulgated criterion on

a site-specific basis.

Comment: Several commenters

requested that EPA modify the criteria

and suggested summer criteria values of

15°C, 12°C and 10°C, expressed as a

seven-day average of daily maximum

temperatures (or in some cases sevenday average of daily average

temperatures), as a more appropriate

criteria. Several of these commenters

cited literature to support their case that

the proposed criteria was either over-or

under-protective and that EPA should

either raise or lower the proposed

criteria.

Response: EPA has reviewed the

literature and available field data to

support its derivation of appropriate

temperature criteria for bull trout. Based

on this review, EPA decided to modify

its proposed temperature criteria to

reflect criteria for the protection of

spawning and juvenile rearing, bull

trout life stages considered most critical

and most at risk from thermal impacts.

Based on temperatures judged to be

required for maintaining optimal

juvenile growth and rearing, and the

initiation of adult spawning, EPA

established a criterion of 10°C expressed

as a consecutive seven-day average of

daily maximum temperatures for June,

July, August and September. EPA

acknowledges that juvenile bull trout

can be found in streams with

temperatures reported to be higher than

10°C, but that available information

suggests that temperatures approaching

15°C reflect suboptimal conditions for

juvenile rearing and growth and that

optimal conditions are closer to 10°C.

Furthermore, available data indicates

that temperatures at or below 9–10°C are

required to initiate spawning, which can

begin in mid-to late-August.

Comment: Several commenters

suggested that EPA’s criterion should

only apply to those periods where

temperature conditions are critical to

bull trout; late summer and fall. Several

of these commenters suggested that, due

to the predictable pattern of stream

temperatures over a year in a given

channel, that a standard which

addresses stream temperatures at the

most critical time of the year would also

adequately address stream temperature

throughout the rest of the year. One

commenter suggested that such a change

was necessary to account for the natural

variations which are present from year

to year.

Response: EPA agrees with the

commenters and is promulgating a

criterion which is to be applied during

June, July, August and September, as

these times are defined in the literature

as critical period for spawning and

juvenile rearing of bull trout. Such

criteria enable greater flexibility due to

natural variability and focus on the life

stages considered most critical and

vulnerable to high temperatures.

Comment: Several commenters

suggested that EPA should, to various

degrees, rely on the Governor’s Bull

Trout Conservation Plan for the

protection and recovery of bull trout.

Other commenters supported EPA in

not relying on the Governor’s Bull Trout

Conservation Plan.

Response: EPA has reviewed the

Governor’s Bull Trout Conservation

Plan and has determined that although

this plan sets forth a strategy towards

the maintenance and restoration of the

complex interacting groups of native

bull trout populations throughout Idaho

it falls short of meeting the requirements

of section 303(c) of the Clean Water Act.

Specifically, the plan does not adopt a

temperature criterion protective of bull

trout nor does it specifically identify

waters in which bull trout are present.

Comment: One commenter suggested

that the proposal was oversimplified

and did not account for the migratory

characteristics of bull trout or the need

for healthy riparian habitat. Several

other commenters also mentioned that

EPA should expand the scope of the

rule to also address the habitat

requirements of the bull trout.
41170 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Response: The only portion of Idaho’s

criterion, relative to the protection of

bull trout, which was disapproved in

EPA’s June 25, 1996 disapproval letter

was the temperature criteria in place to

protect bull trout. Since EPA’s authority

to promulgate is limited to those items

which are submitted to EPA for review

and approval/disapproval and which

EPA disapproves, EPA does not have

the authority to promulgate habitat

criteria under this rule.

Comment: Two commenters suggested

that the current cold water biota criteria

are not protective of the adult life stages

of bull trout and thus a temperature

criteria applicable to adult life stages

should also be promulgated. One

commenter suggested that this criteria

be established at 12° C and another

suggested an annual maximum

temperature criteria of 15° C.

Response: Available information

indicates that juvenile rearing and adult

spawning are the life stages that most

limit bull trout (and other salmonid)

production. Available data also suggests

that bull trout distribution is best

defined by maximum summer

temperatures and that these life stages

are currently most vulnerable to

increased temperatures in the summer

and early fall. In general, less

information is known about the

temperature requirements and locations

of adult bull trout and migratory

corridors compared to other life stages.

EPA concluded that the information

available was not sufficient to support

going forward with temperature criteria

for adult bull trout at this time.

Therefore, given the importance of

juvenile and spawning life stages to bull

trout production and EPA is

promulgating temperature criteria

designed specifically for the protection

of natal juvenile rearing and spawning

areas. EPA believes that if these criteria

are met, natural variability in stream

temperatures will result in attainment of

appropriate temperatures during other

times of the year.

Comment: Several commenters noted

that the proposed criteria were

unrealistic and were not achievable.

Response: The bull trout temperature

criteria adopted under this rule were

determined based on EPA’s evaluation

of the literature and available field data.

EPA recognizes that there are streams

where bull trout are present at higher

temperatures than those adopted under

this rule but in most cases, information

was not available to determine the

relative health of these populations.

However, because several factors can act

to alter temperature impacts on bull

trout which can vary on a site-specific

basis (e.g., availability of cold water

refugia), EPA has provided a

streamlined mechanism through which

criteria for specific streams may be

modified. This mechanism should

provide relief in streams which do

support bull trout populations yet the

criteria adopted under this rule are

unachieveable.

d. Final Rule. In order to provide the

level of protection required under the

Clean Water Act, EPA is promulgating a

site-specific temperature criterion for

those waterbody segments where bull

trout spawn and juvenile bull trout rear.

EPA’s action supersedes the State’s

temperature criterion only for the

specific waterbodies listed in

§ 131.33(a)(2) of the final rule.

As indicated in the rule language

itself, the bull trout temperature

criterion does not apply to waters

located in Indian country, to the extent

any may be implicated in the waters

listed in § 131.33(a)(2). Although the

proposal did not address this

possibility, it was never EPA’s intent to

promulgate temperature criteria for

waters in Indian country. The purpose

of this rulemaking is to promulgate

standards for waters that are outside of

Indian country and for which certain

State standards were found to be

inadequate. EPA has consulted with the

appropriate tribal authorities. All

affected tribal governments requested

that EPA allow the Tribes to develop

their own standards for their

reservations and thus not include tribal

waters in today’s promulgation. See

section D.4 above.

Because the data indicate there may

be aberrational segments where bull

trout have slightly different temperature

ranges, and because future information

may make it possible to refine the list

of waterbodies where bull trout spawn

and juvenile bull trout rear, the final

rule provides a mechanism for adjusting

the bull trout temperature criterion on a

site-specific basis. This provision is

discussed in more detail below.

This Rule establishes a maximum

weekly maximum temperature (MWMT)

criterion of 10 °C for the months of June,

July, August and September for the

protection of bull trout spawning and

juvenile rearing in natal streams,

expressed as an average of daily

maximum temperatures over a

consecutive 7-day period. This criterion

are focussed on reproduction (adult

spawning) and juvenile rearing life

stages because these have been cited as

critical life stages or ‘‘ecological

bottlenecks’’ limiting the production of

salmonids, including bull trout (Goetz,

1989; McPhail and Murray, 1979).

Furthermore, high temperatures during

summer have most often been reported

as a factor limiting the distribution and

abundance of bull trout, with juvenile

rearing and adult spawning being

considered as the life stages most at risk

from high summer and fall temperatures

(Buchanan and Gregory, 1997; ORDEQ,

1995; Shepard et al., 1984; Fraley and

Shepard, 1989; Goetz, 1989; Riehle,

1993). EPA believes that these criteria

are adequately protective of bull trout in

that they provide explicit protection for

the most critical and vulnerable life

stages. Further, EPA believes that during

other times of the year, natural seasonal

variability in stream temperatures and

temperature controls established to meet

summer maximum criteria, if operated,

will likely result in attainment of

adequate temperatures during the

remainder of the year. These criteria are

also consistent with other temperature

criteria that have been established or

recommended to protect bull trout

(Buchanan and Gregory, 1997; ORDEQ,

1995; and the U.S. Forest Service’s

Inland Native Fish Strategy).

For several reasons, EPA decided to

express the final temperature criteria for

bull trout as a consecutive seven-day

average of daily maximums (MWMT)

rather than a consecutive seven-day

average of daily averages (MWAT) as

originally proposed. Greater diurnal

fluctuations around the mean daily

temperature can be one effect of

intensive watershed management (e.g.,

loss of riparian vegetative cover). For

this and other reasons, EPA’s Guidelines

for deriving temperature criteria

recommend both longer-term average

criteria (MWAT) and short-term

maximum criteria. However, after

reviewing the literature on bull trout

temperature requirements and

considering comments on EPA’s

proposed bull trout temperature criteria,

EPA concludes that the available data

were insufficient to derive temperature

criteria to be protective of short-term

temperature extremes (e.g., daily

maxima). As asserted by several

commenters, use of a MWAT without

some control on the daily maxima might

not adequately reflect such increases in

diurnal variability where the mean

temperatures do not change

substantially. Therefore, EPA agrees that

greater control over thermal maxima is

desired and that while use of the twonumber criterion is most desirable (i.e.,

weekly average and daily maximum), in

the face of insufficient data, use of a

MWMT is appropriate. In addition, use

of the MWMT is consistent with other

temperature criteria that have been

established or recommended to protect

bull trout (Buchanan and Gregory, 1997;

ORDEQ, 1995; and the U.S. Forest
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41171

Service’s Inland Native Fish Strategy).

EPA’s expression of the criterion in

terms of a consecutive seven-day

average of daily maximums, however,

will provide for a mean daily

temperature that are somewhat below

(possibly several degrees) the maximum,

depending upon stream hydrology and

watershed characteristics.

Maintenance of this criterion for

spawning and juvenile bull trout rearing

in their natal streams in the summer

months (June, July, August and

September) should result in attainment

of appropriate thermal conditions for

other life stages (i.e., adult holding and

migration) during the remainder of the

year. The restrictions on lowering water

quality provided for in the Tier 2

provisions of Antidegradation will serve

as further insurance.

EPA has considered the comments

and data submitted, evaluated the

literature, and conferred with fisheries

scientists from the Idaho Department of

Fish and Game, U.S. Fish and Wildlife

Service, U.S. Forest Service (USFS),

U.S. Bureau of Land Management (BLM)

and the Interior Columbia River Basin

Ecosystem Management Project (USFS,

BLM) in revising the proposed criterion

to be protective of bull trout spawning

and juvenile rearing and meet the goals

of the Clean Water Act.

This revised criterion is within the

range of maximum summer

temperatures associated with optimal

juvenile bull trout rearing (higher

densities when known) in watersheds in

Idaho, Oregon, Montana, British

Columbia and Alberta. Protection of

optimal conditions is desirable because

Columbia River Basin bull trout

populations have recently been

proposed by the U.S. Fish and Wildlife

Service for listing as a ‘‘threatened

species’’ under the Endangered Species

Act. It is recognized that some authors

have found sites with juvenile bull trout

present, which have warmer summer

maxima (Fraley and Shepard, 1989;

Saffel and Scarnecchia, 1995; Adams,

1994; Thurow and Schill, 1996), while

others have noted sites with cooler

summer maxima (McPhail and Murray,

1979; Ratliff, 1992; Riehle, 1993). In

many such studies, information on

thermal conditions supporting optimal

densities is lacking.

The literature indicates that bull trout

may be one of the most intolerant

species of salmonids to warm

temperatures. Buchanan and Gregory

(1997) summarized that, to provide

adequate protection for cold water

species like bull trout, water

temperature criteria must be

substantially lower than traditional

criteria, and must accommodate

seasonal requirements of specific life

history stages. Also, they suggested that

slight increases in water temperature

can tip the balance of competitive

interactions to the detriment of

coldwater species, even though

temperature criteria would be well

within the thermal requirements of the

species. Rieman and McIntyre (1993)

suggested that water temperature is

likely to be an important and inflexible

habitat requirement for bull trout.

Cavender (1977) noted that bull trout

have an affinity for cold waters fed by

mountain glaciers and snowfields. Also,

Rich (1996) found that bull trout were

more likely to occur in mountain

streams with northerly aspects. Rieman

and McIntyre (1995) found juvenile bull

trout at elevations as low as 1520 m, but

the frequency of juvenile bull trout

occurrence increased sharply at about

1600 m, from this observation they

assumed that 1600 m is the lower limit

of spawning and initial juvenile rearing

of bull trout in the Boise River, and

suggested that this was influenced by

stream temperature.

Pratt (1992) also noted that water

temperature may be an important

feature of juvenile bull trout habitat.

Bull trout spawn in late summer

through fall (late August–November)

and have a long egg incubation period

(typically lasting from early fall to

April). High temperatures, therefore, are

a concern for inhibiting spawning, as

well as limiting its success in the late

summer and early fall. Saffel and

Scarnecchia (1995) indicated that high

temperatures may be physiologically

constraining on juvenile bull trout.

Shephard et al. (1984) found that fish

growth decreased during the warmer

summer months despite increased

primary productivity.

EPA’s establishment of this criterion

for bull trout spawning and juvenile

rearing is consistent with other

temperature management objectives and

criteria recently adopted by state and

federal natural resource management

agencies, as noted in the following

examples:

(1) The State of Idaho, through the

Governor’s 1996 Bull Trout

Conservation Plan, recently recognized

the unique temperature requirements for

all life stages of bull trout. The Plan

indicated that bull trout require

temperatures between 9 and 15°C, with

spawning success increasing at

temperatures less than 10°C and

optimum spawning temperatures being

2 to 4°C.

(2) The U.S. Forest Service’s Inland

Native Fish Strategy (1995) for its

Intermountain, Northern and Pacific

Northwest Regions contains Interim

Riparian Management Objectives for

desired conditions for fish habitat of

inland native fish, which includes bull

trout. The interim objective for water

temperature is a maximum water

temperatures below 59°F (15°C) within

adult holding habitat and below 48°F

(9°C) within spawning and rearing

habitats, measured as a 7-day moving

average of daily maximum

temperatures. These temperatures were

recommended and supported by the

U.S. Fish & Wildlife Service, a full

partner in the development of the

Strategy and its Environmental

Assessment.

(3) The Oregon Department of

Environmental Quality (ODEQ) recently

conducted an extensive evaluation of

the effect of water temperature on bull

trout in its Final Issue Paper—

Temperature, 1992–1994 Water Quality

Standards Review (ODEQ, 1995). The

State of Oregon adopted the following:

An absolute numeric criterion of 10°C

(50°F) based on a 7-day average of the

maximum daily temperature for waters of

Oregon determined by Department of

Environmental Quality to support or to be

necessary to maintain the viability of native

bull trout. If temperature exceed 10°C (50°F),

the stream and riparian conditions would be

required to be restored or allowed to return

to the most unaltered condition feasible for

the purpose of attaining the coldest streams

temperature possible under natural

background conditions.

Buchanan and Gregory (1997), as

members of the temperature technical

subcommittee for the above water

quality standards revisions, found that

the literature supported an optimal

temperature range for both bull trout

spawning and juvenile rearing of 4–

10°C. This was presented in Figure 2–

3, Bull Trout Temperature Requirements

by Life History Stage and Time Period

as Reported in the General Literature,

for the Final Issue Paper—Temperature

(ODEQ, 1995).

I. Spawning.

Based on EPA’s review of the

literature, a stream temperature range of

4–10°C appears to be necessary to

maintain successful bull trout

spawning, although it appears that bull

trout do seek out colder temperatures. A

number of authors have noted the

temperature appears to be a critical

factor with the initiation of spawning

migrations occurring at 9–10°C. A

temperature range of 6–8°C is believed

to approximate the optimum spawning

temperatures of bull trout (Idaho

Department of Fish and Game).

Heimer (1965) noted that areas with

cooler water temperatures (9–10°C) in

the Clark Fork River, Idaho, attracted
41172 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

bull trout during the spawning season,

and that there was especially high

spawning use in these areas with

groundwater upwelling. The average

daily maximum temperature during

peak redd construction in the Flathead

River, Montana tributaries was 8–9°C,

although some spawning activity was

observed in water temperatures as high

as 12°C (Flathead River Basin Steering

Committee, 1983). Fraley and Shephard

(1989) found in the Flathead River

drainage that the initiation of spawning

appeared to be related largely to water

temperatures of 9–10°C. This

temperature was also described by

McPhail and Murray (1979) as the

threshold temperature for the initiation

of spawning in Mackenzie Creek in

British Columbia. Shepard et al. (1984)

found that bull trout spawning activity

began when maximum daily water

temperatures dropped below 9°C.

Swanberg (1996) suggested that bull

trout begin their upriver migrations in

the fall in the Blackfoot River, Montana,

as a result of spikes in a fluctuating

temperature regime, and that these

migrations are done in order to seek

refuge in cooler tributaries. Other

authors have made similar observations

in Rapid River, Idaho drainage where

bull trout initiated upriver migrations to

spawn when water temperatures reach

10°C or above (Elle et al., 1994; Elle,

1995). Schill et al. (1994) also noted in

Rapid River that at the start of spawning

season pairing behavior began after the

average water temperature dropped

sharply from 10°C–6.5°C.

II. Egg Incubation.

EPA has reviewed the literature and

examined temperature data from several

bull trout streams in Idaho, Oregon, and

Montana and has found that, if summer

temperatures, June to September, meet

EPA’s temperature criterion, late fall

and winter temperatures should provide

for successful bull trout egg incubation.

Incubation of bull trout eggs requires

temperatures ranging from 1 to 6°C and

occurs at optimum temperatures of

approximately 4°C (ODEQ, 1995;

Weaver and White, 1985; McPhail and

Murray, 1979; Carl, 1985).

Fraley and Shephard (1989) reported

water temperatures of 1.2–5.4°C for the

successful incubation of bull trout

embryos. McPhail and Murray (1979)

noted that bull trout egg-to-fry survival

varied with different water temperatures

of 0–20%, 60–90% and 80–95% of the

eggs survived to hatching in water

temperatures of 8–10°C, 6°C and 2–4°C,

respectively. Weaver and White (1985)

report 4–6°C as being needed for egg

incubation of bull trout embryos in

Montana streams. Hatching of eggs

generally occurs 100 to 145 days after

spawning, with bull trout alevins

requiring at least 65 to 90 days after

hatching to absorb their yolk sacs (Pratt,

1992). As such, incubation occurs from

late fall to early spring, a period in

which the temperatures in the

headwater streams in which bull trout

spawn will be low due to natural

seasonal water temperature patterns.

Weaver and White (1985) observed

stream temperatures of 1.2 to 5.4°C

during the incubation period of October

to March.

III. Juvenile Rearing.

Goetz (1989) noted that the maximum

summer temperature is a controller of

juvenile bull trout distribution.

Temperatures less than 12°C appear to

be most suitable for juvenile rearing,

with optimal conditions for rearing and

growth occurring between 4 and 10°C

(ODEQ, 1995). Based on field

observations of the presence of juvenile

bull trout in Idaho streams, 12°C also

appears to be a maximum temperature

where juveniles are found (Idaho

Department of Fish and Game).

Pratt (1985) found juvenile bull trout

predominately in the upper and middle

reaches of Lake Pend Oreille tributaries.

Saffel and Scarnecchia (1995) observed

that the density of juvenile bull trout

was negatively related with the

maximum summer temperature in six

tributaries of Lake Pend Oreille. They

found the highest number of juvenile

bull trout in streams where the summer

maxima ranged from 7.8 to 13.9°C.

Juveniles will reside in their natal

streams for two to five years (Carl,

1985).

Pratt (1984) observed only juvenile

bull trout in habitats with temperatures

of 5–12°C influenced by cold springs

(5°C). Shepard et al. (1984) also

observed the highest densities of

juvenile bull trout in stream reaches in

the Flathead River basin which were

associated with cold perennial springs.

Bonneau and Scarnecchia (1996) found

that juvenile bull trout predominately

(94%) chose the coldest water available

(8–9°C) in a plunge pool, which

contained a strong side-to-side thermal

gradient (8–15°C) at the confluence of

Sullivan Springs and Granite Creek,

tributary to Lake Pend Oreille. These

juvenile bull trout were observed to

avoid the remaining pool habitat area

(76%), which had temperatures of 9.1–

15°C. Similarly, juvenile bull trout were

observed only in the middle reach of

Sun Creek, Oregon, where heavy

influxes of groundwater more than

doubled the stream flow (Dambacher et

al., 1992). The middle reach of Sun

Creek reported August temperatures

ranging from 5.6–10°C.

Shepard et al. (1984) reported the

highest densities of bull trout in

Montana streams at temperatures of

12°C and below, some presence of bull

trout at 15–18°C, and complete absence

of bull trout in streams with

temperatures exceeding 19°C. Adams

(1994) observed various life stages of

bull trout in four streams in the Weiser

River, Idaho, drainage where the average

daily temperatures were from 2–12°C,

and summer maxima as high as 20°C,

although some groundwater influxes did

provide cool water sanctuaries, but the

extent was unknown. These high

temperatures were suggested to limit

downstream distribution for bull trout.

Fraley and Shepard (1989) noted that

juvenile bull trout were rarely observed

in streams with maximum water

temperatures at or above 15°C, and were

found close to the substrate at those

temperatures. Also, they found that

juvenile bull trout migrated upstream in

their natal stream to grow, and many of

these upper stream reaches were not

utilized by adult spawners. Thurow

(1987) also found higher densities of

juvenile bull trout in the headwater

(colder) stream reaches of the South

Fork Salmon River, Idaho. Thurow and

Schill (1996) did record summer water

temperatures of 9–13.5°C in Profile

Creek, tributary to the South Fork

Salmon River, while observing the diel

behavior of juvenile bull trout. Elle

(1995) observed in Rapid River that the

out migration of juvenile bull trout

occurred when the stream temperatures

dropped below 10°C.

Based on the above, EPA has

determined that its final criterion for

bull trout temperature is reasonable and

reflects sound science.

ii. Distribution

a. Proposal. At the time of EPA’s

disapproval action, EPA had not

identified the exact geographic areas

inhabited by bull trout. In deriving a list

of water bodies where revised

temperature criteria are needed in order

to protect bull trout for the proposal,

EPA relied upon bull trout distribution

data from the Interior Columbia Basin

Ecosystem Management Project

(ICBEMP) as well as bull trout

distribution data from the Idaho

Department of Fish and Game. See 62

FR 23013 for a more detailed discussion

of EPA’s proposal.

b. Recent Idaho Actions. On June 19,

1997, Idaho adopted a temperature

criteria for bull trout but did not

indicate which water bodies the criteria

apply. On July 15, 1997, EPA

disapproved this new criteria because

EPA was unable to determine that the

criteria was protective of bull trout
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41173

spawning and rearing. In order to

protect an aquatic life species, the water

quality criteria must have a point of

application. Idaho’s temperature criteria

specified only that the criteria would be

applied to known bull trout spawning

and juvenile rearing stream segments as

identified by the Department based on

best available data or as specifically

designated under the Idaho Water

Quality Standards. The implementation

components of a criterion (e.g., point of

application) are considered along with

the numeric values themselves to

determine if the criteria as a whole are

sufficient to protect the use (40 CFR

131.11). To date, no stream segments

have been specifically designated as a

bull trout spawning and juvenile rearing

stream, nor has any reference to a

specific list of waters been provided to

EPA. Therefore, in order to ensure that

bull trout spawning and rearing will be

protected, EPA has included a list of

stream segments as part of the bull trout

criteria in today’s rule (§ 131.33(a)(1)).

c. Response to Comments. Comment:

Commenters objected to EPA’s approach

to designating waterbodies where the

temperature criteria for bull trout

spawning and rearing would apply. The

strongest objectors took the view that

water quality standards should not be

tied to specific stream segments. Rather,

the applicability of designated uses

should be left to another process, such

as the Governor of Idaho’s bull trout

plan. These commenters based their

practical objection in part on the fact

that, under the proposal, a rulemaking

would be required each time the

temperature criteria needs to be

modified to reflect new information.

The more moderate objections pointed

to the over inclusiveness of the

proposal, and asserted that EPA can not

apply temperature criteria to

waterbodies where the presence of bull

trout has not been verified. These

commenters pointed out that, by its own

terms, the list encompasses ‘‘known,

suspected and/or predicted’’ spawning

and rearing areas, and argued that EPA

can not apply criteria to waters beyond

those that are ‘‘known’’ to host these

activities. Commenters objected to the

fact that the rule included migratory

corridors merely because EPA could not

determine how to exclude these.

Another commenter argued generally

that inclusion of waterbodies other than

headwaters is inappropriate because

waters at lower elevations have higher

natural temperatures to which bull trout

have adapted.

Response: EPA disagrees with the

commenters who argue that waterbodies

do not need to be specified for bull trout

temperature criteria. A water quality

standard cannot be implemented unless

it applies to a specified location.

Moreover, the mechanism for

determining where the criteria apply

must have regulatory effect (e.g., cannot

exist only in guidance), to be the basis

for imposing requirements through

subsequent regulatory actions, such as

issuance of an NPDES permit. EPA has

done that here by naming in the

regulation the specific waterbodies

where the criteria apply, and providing

a streamlined mechanism for modifying

the list.

As described above, EPA has

substantially modified its approach to

designating waterbodies where bull

trout temperature criteria will apply

from that found in the proposal. This

has occurred, in part, as a response to

the comments received. The proposal

acknowledged that its approach to

applying bull trout temperature criteria

might be over inclusive to some extent.

EPA believes this modified approach

substantially reduces the likelihood that

waters that do not contain bull trout

will be regulated by this rule. In

addition, EPA has modified the

proposal by adding a streamlined

procedure for removing waterbodies

where it can be shown that bull trout do

not in fact exist. This responds to those

commenters who wish to avoid future

rulemakings in the event new

information becomes available.

Regarding the comment that EPA may

not designate waterbodies other than

those where bull trout have been

confirmed as present, EPA disagrees

that this is the only reasonable way to

designate applicable waters. EPA agrees

that it would be arbitrary and capricious

to designate waters merely on the basis

of conjecture. However, the ICBEMP

data base relied upon by EPA in this

rulemaking to predict the presence of

bull trout spawning and rearing is based

on sound scientific methodology that

results in a high degree of predictive

accuracy. The ICBEMP data base focuses

on a number of parameters known to

correlate to the presence of bull trout,

and predicts the presence of bull trout

elsewhere only where those parameters

are known to be present. EPA combined

the ICBEMP data base with that

developed by the Idaho Department of

Fish and Game. The IDFG data base lists

waters where bull trout are known to be

present, and also includes waters where

bull trout are suspected to be present

based on the best professional

judgement of Department officials. EPA

believes that since the Idaho Fish and

Game Department is the agency with the

most expertise and the most current

information regarding the location of

bull trout, it is appropriate to defer to its

judgement and to include waters where,

according to the Department, bull trout

are either known or suspected to be

present.

If EPA were constrained to using a

method of designating waterbodies that

relied only upon direct human

observations of the presence of bull

trout spawning and rearing, the result

would most certainly be under

inclusive, and therefore under

protective of the species. EPA believes

the approach that is most reasonable

and most consistent with the goals of

the CWA is to identify those

waterbodies where spawning and

rearing have been observed to exist and

then expand upon this using accurate

modeling techniques or the best

professional judgement of officials for

an agency such as the Idaho Fish and

Game Department. When it can be

shown this approach errs in the

direction of overprotection, the

streamlined procedures for deleting

waterbodies from the list should

provide an adequate corrective

mechanism.

In the final rule, EPA believes it has

succeeded in excluding waterbodies

that would be used only for migration

and not for spawning and rearing.

Additionally, by excluding river main

stems, EPA has drastically reduced the

number of low elevation waterbodies

affected by this rule. This is responsive

to the comments suggesting that

spawning and rearing occur only in

headwaters.

Comment: Several commenters

requested that individual streams either

be removed from or added to the list of

streams covered under this rule. Very

few of these commenters submitted

factual data to support their request,

although several noted that they had

data available or referred to sources

where the data may be available.

Response: Due to the short courtordered time frame for development of

this rule, EPA was unable to pursue the

acquisition of data not provided directly

to EPA during the comment period.

However, EPA has provided

opportunity within the rule to modify

the list of streams to which the rule

applies and encourages these

commenters to pursue such

modification where they have the

factual data to indicate presence/

absence of bull trout in specific waters.

Additionally, several of the streams

which commenters requested be

removed from the list were removed

during our review and modification of

the proposed list. These streams include

the Boise River below Lucky Peak

Reservoir and the Snake River near

Lewiston.
41174 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

d. Final Rule. The final rule includes

a list of waterbodies for which sitespecific temperature criterion are

needed to protect bull trout spawning

and juvenile rearing. In deriving this

list, EPA has relied on bull trout

distribution data from the 1994–5

Interior Columbia Basin Ecosystems

Management Project (ICBEMP) (Quigley

and Arbelbide, in press) ‘‘Key

Salmonid’’ database for known and

predicted bull trout spawning and

juvenile rearing, and the updated

version (April 1997) of the Idaho

Department of Fish and Game (IDFG)

Digital Bull Trout Distribution database.

The merging of these two databases

resulted in a list of streams designated

specifically for bull trout spawning and

juvenile rearing, as well as some streams

utilized for all life stages, and other

streams used only as migratory

corridors. In order to exclude those

streams used only for life stages other

than spawning and juvenile rearing (i.e.,

migratory corridors, adult rearing, etc.),

the following steps were taken to

modify the list of streams:

(1) The entire IDFG data set, which

addresses all life stages, was overlaid

with certain portions of the ICBEMP

data set. The portions of the ICBEMP

database which were used included

‘‘known’’ bull trout spawning and

juvenile rearing, ‘‘predicted’’ spawning

and juvenile rearing, and ‘‘predicted

present’’, i.e., migratory or seasonal

habitats that could include some

spawning and juvenile rearing streams.

Known migratory corridors were not

included.

(2) Based on statements made by IDFG

staff, EPA concluded that the IDFG data

set on bull trout habitat contained

recently updated information that was

not included in the ICBEMP data set.

Therefore, EPA determined that the

majority of the IDFG data set, especially

tributaries, should be retained in the

rule in order to utilize the most recent

information.

(3) Those areas denoted by ICBEMP as

‘‘predicted present’’ bull trout habitat

used by all life stages which do not

overlap with areas listed by IDFG for all

life stages were assumed to have less of

a probability of being spawning and

juvenile rearing streams. Therefore,

these waterbodies were deleted from the

list of streams to which the rule would

apply.

(4) Based on the literature reviewed

and comments received, EPA assumed

that bull trout do not use main stem

river systems for spawning and juvenile

rearing habitat, because of elevated

water temperatures and the lack of

appropriate spawning substrate. The

main stem rivers are utilized by bull

trout principally as migratory corridors

and adult holding habitat. This is due to

the naturally higher water temperatures

and greater food abundance. Bull trout

are almost exclusively piscivorous.

Therefore, only the headwater portions

of main stem rivers were retained in the

rule. All other segments of the main

stem rivers were deleted, regardless of

whether they were denoted by either the

IDFG, ICBEMP, or both.

The list represents EPA’s attempt to

compile a comprehensive list of streams

in Idaho utilized for bull trout spawning

and juvenile rearing without including

waters utilized only for adult migration

and rearing or streams in which bull

trout are not likely to occur. The

resulting list for which site-specific

temperature criteria are being

promulgated can be found in subsection

(a)(2) of today’s rule.

iii. Modifications to Bull Trout Criteria

and Distribution

Although the promulgated list of

waterbodies where bull trout

temperature criteria apply represents

the best information now available, EPA

believes it is appropriate to have some

measure of flexibility to modify this list

as new information on bull trout

distribution arises. This is important in

light of ongoing monitoring activities by

the State of Idaho and several Federal

agencies. Therefore, EPA has modified

the proposal by adding a procedure

whereby listed waterbodies can be

removed or temperature criteria

modified through a determination of the

Region 10 Regional Administrator (RA).

EPA believes this procedure can provide

expeditious relief from the requirements

of these temperature criteria when such

a change is supported by an adequate

factual record. Although the procedure

for making a determination under

paragraph (a)(3) is not a rulemaking,

each determination would be a final

agency action, and would therefore be

subject to consultation pursuant to

section 7 of the ESA as appropriate.

Section 131.33(a)(3) sets forth

procedures for modifying, on a sitespecific basis, either the temperature

criterion in paragraph (a)(1) or the list

of waterbodies in paragraph (a)(2).

Paragraph (a)(3)(i) allows the RA to

remove a waterbody, or a portion of a

waterbody, from the list if a finding can

be made that bull trout spawning and

rearing is not an existing use at a

specified location. Paragraph (a)(3)(ii)

allows the RA to modify upwards the

temperature criterion of paragraph (a)(1)

if a finding can be made that bull trout

would be fully supported at the higher

temperature at a specific waterbody or

portion thereof. EPA wishes to

emphasize that these findings must be

based on an adequate factual record.

Since these determinations essentially

modify a site-specific criterion, the

record must be complete and

compelling enough to support a sitespecific criterion in the first instance,

and must also effectively rebut whatever

information was used to support today’s

promulgation for the specific

waterbody. It is also important to note

that EPA expects any requests for a

modification under section (a)(3) to be

accompanied by a complete and

adequate supporting record that is

consistent with EPA’s existing policies

and procedures for developing sitespecific criteria. This burden for a

complete and adequate supporting

record falls upon the person requesting

the modification. EPA does not intend

to supply information lacking from a

request, and will not act on any request

that is missing critical information or

otherwise deemed incomplete.

EPA expects that support for the

removal of a waterbody pursuant to

paragraph (a)(3)(i) will normally consist

of documentation that bull trout are not

currently present. While bull trout may

constitute an ‘‘existing use’’ if it has

been present since 1975, a requestor

under paragraph (a)(3)(i) will not

normally carry the burden of

demonstrating that this is not the case.

Unless there is information to the

contrary, EPA will assume that the

current absence of bull trout also

indicates a historical absence. However,

where there is information of a

historical presence that qualifies as an

‘‘existing use,’’ that information would

have to be rebutted.

The procedures of paragraph (a)(3) are

designed to ensure that the public will

have adequate input on any

determination. Paragraph (a)(3)(iii)

provides that the public will have notice

of and an opportunity to comment on

any proposed determination. If this

notice can be combined with another

concurrent and related process, such as

action on an NPDES permit, EPA will

endeavor to do so. Paragraph (a)(3)(iv)

requires the RA to make publicly

available any proposed determination

and the factual record supporting it, and

to make publicly available the record of

past decisions.

EPA plans to develop a mailing list to

facilitate public awareness of final

determinations to modify stream listing

or temperature criteria under these

procedures. Persons wishing to be

notified of such determinations should

send their names and addresses to Lisa

Macchio at U.S.EPA Region 10, Office of

Water, 1200 Sixth Avenue, Seattle,
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41175

Washington, 98101 (telephone: 206–

553–1834).

The procedures in paragraph (a)(3)

provide a mechanism for removing a

waterbody from the list, or for

modifying the temperature criterion

upwards. That is, paragraph (a)(3) can

only be used to modify today’s

rulemaking in a less stringent direction.

EPA recognizes that new information

might also support, for instance, the

addition of a waterbody to the list.

While it would have been desirable to

provide a similar streamlined

mechanism for modifying the list in a

more stringent direction, EPA was

concerned that a procedure that could

increase the scope of today’s

promulgation through a process less

rigorous than formal notice and

comment rulemaking might not be

consistent with the Administrative

Procedures Act. However, paragraph

(a)(3)(v) makes clear that EPA can

promulgate additional site-specific

criteria for bull trout through

rulemaking.

2. Sturgeon

i. Proposal

EPA proposed temperature criteria for

the Kootenai River from Bonners Ferry

to Shorty’s Island to protect for critical

spawning and egg incubation life stages

for white sturgeon. EPA proposed a

minimum weekly average of 8 °C

followed by an 8-week time period

(which was to begin no later than May

21) where the maximum weekly average

does not exceed the upper spawning

temperature limit of 14 °C. Due to the

limited time available prior to the

proposal, EPA was able to look at only

a small subset of the temperature data

for the Kootenai River. Based on this

limited analysis, as well as preliminary

discussions with FWS and Army Corps

of Engineers (COE), EPA had concluded

that the 8 °C minimum could be

attained by May 21 and that a 14 °C

maximum temperature was reasonable.

See 62 FR 23010 for a more detailed

discussion of EPA’s proposal.

ii. Recent Idaho Actions

Idaho adopted revised water quality

standards which were issued as a

temporary rule by the Board of Health

and Welfare and became effective on

June 20, 1997. This revised rule

establishes a 14•C maximum seven day

moving average water temperature

(based on daily average temperatures)

within the Kootenai River from Bonners

Ferry to Shorty’s Island from May 1

through July 1.

EPA reviewed the state’s revised

criteria, the scientific literature, and

additional temperature data for the

Kootenai River provided during the

comment period. EPA again conferred

with FWS in evaluating temperature

criteria which would provide adequate

protection of sturgeon spawning.

EPA received comments from COE

which indicated water temperature at

Bonners Ferry is controlled by several

factors other than outflows at Libby

Dam. These factors include tributary

inflow volume and temperature, water

depth and local hydrometerological

conditions. Consequently, these factors

and inputs may have a greater role in

controlling the onset of the timing of

sturgeon spawning than EPA originally

believed. These factors along with the

multi-agency efforts for the recovery of

Kootenai River white sturgeon, which

includes experimentation of flow

releases at Libby Dam by the COE, may

define more precisely the optimal

conditions needed for sturgeon

spawning and egg incubation. Although

available information suggests that 14°C

is a reasonable upper temperature limit,

the current optimal conditions for

Kootenai River white sturgeon spawning

and egg incubation, as well as the

temperature ranges and flow regimes

which would provide for these

conditions, are not entirely certain.

The State’s 1997 standard establishes

a 14°C maximum temperature criteria

for the two month spawning period.

This time period and upper temperature

limit is consistent with the literature

EPA has reviewed. Partly because of the

uncertainty in defining optimal

spawning conditions for Kootenai River

white sturgeon, along with (1)

influences other than flow releases at

Libby Dam and (2) COE and FWS efforts

in experimentation with operational

guidelines at Libby Dam, EPA

determined that establishing a 14°C

maximum criteria from May 1 through

July 1 without establishing a minimum

temperature criteria, would provide for

the necessary temperature (thermal)

protection for spawning and egg

incubation as well as temporal

flexibility as over times when such life

stages can occur. EPA will continue to

track this issue as more information

becomes available.

Therefore, by letter dated July 15,

1997, EPA conditionally approved the

State’s temporary temperature criteria as

being in accordance with the CWA and

EPA’s implementing regulations at 40

CFR 131.11. EPA’s approval eliminates

the need for federal criteria to protect

sturgeon. Because EPA’s approval is not

yet unconditional, the Agency is not

withdrawing the proposal for these

criteria at this time.

3. Snails

i. Proposal

EPA proposed a maximum daily

average temperature of 18°C in the

Middle Snake River from river mile 518

to river mile 709. Given the limited time

EPA had to develop the proposed rule

and the limited data available at the

time, EPA’s proposed temperature

criteria appeared to be reasonable. See

62 FR 23011 for a more detailed

discussion of EPA’s proposal.

ii. Comments

Although no additional data on the

temperature requirements for these

snails was obtained during the comment

period, EPA did receive several

comments with regard to the proposed

temperature criteria for snails.

One commenter noted that the FWS

recovery plan recommends an annual

average temperature of 18°C, and that

EPA was proposing a daily average. This

commenter questioned how EPA

converted a suggested 18°C annual

average temperature to a maximum

daily average. EPA proposed this

because it had determined that an

annual average temperature did not

make sense for the protection of the

species since it would allow the low

winter time temperatures to offset the

high summer temperatures. Without

further information at the time of

proposal, EPA’s sense of FWS’s

recommendation for temperature

criteria in the recovery plan, was they

were targeting a temperature lower than

the current Idaho temperature criteria

applicable to cold water biota. Therefore

a daily average of 18°C was proposed.

As discussed below, EPA has since

concluded that it could not be

confirmed that Idaho’s existing

temperature criteria are inadequate to

provide the temperature protection

recommended in the recovery plan.

Another commenter questioned

whether it was reasonable and

appropriate to establish an 18°C

temperature criteria throughout a

significant portion of the river (rivermile

518 to 709) because snails are isolated

in specific habitats within the river.

Therefore the criteria should only apply

to those specific portions where snails

are known to exist, not all segments as

EPA proposed. Based on the

information available, EPA is unable to

determine the precise locations of all

snail habitat. In addition, EPA has

determined that available data do not

confirm that Idaho’s existing

temperature criteria are inadequate to

protect snails.

Another commenter stated snail

populations are more abundant than
41176 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

first assumed in 1992 and good

populations of certain listed snails were

found in river and reservoir habitats

where the proposed standard is

exceeded during the summer. However,

data was not provided to show the

correlation between presence, health of

species and temperature requirements.

Presence of snails does not necessarily

indicate temperature threshold for

optimal conditions of the species. Upon

the availability of relevant information

on snail requirements, EPA will further

evaluate appropriate numeric criteria.

Several commenters stated that they

believed the proposed 18°C standard is

essential to the survival of the Snake

River mollusks but provided no

additional data to justify this. EPA does

not have the information to determine

whether or not this may be true.

One commenter believed that until

further data are available, the standard

for the snails should be lowered to 14°C

to accommodate the Banbury Springs

lanx. EPA lacks the appropriate data to

support lowering the temperature

criteria to 14°C.

iii. Final Rule

After a more thorough evaluation of

available data and information on the

temperature requirements of these

snails, EPA has been unable to confirm

that Idaho’s existing temperature criteria

are inadequate to protect the snails.

Therefore EPA is withdrawing its

disapproval of Idaho’s criteria and is not

promulgating final temperature criteria

for aquatic snails in the Middle Snake

River. EPA will continue to work with

FWS on this issue as more information

becomes available and will revisit this

issue in future triennial reviews.

F. Antidegradation Policy

EPA’s June 25, 1996 letter

disapproved part of Idaho’s

antidegradation policy because it did

not protect Tier III waters (Outstanding

Resource Waters) from point sources.

The State revised its antidegradation

policy to refer to point sources as well

as nonpoint sources, and submitted this

revision to EPA. The commenters

generally expressed the view that under

the circumstances a federal

promulgation was unnecessary. EPA

approved this revision on May 27, 1997

as satisfying our objection and meeting

the requirements of the Clean Water

Act. Because section 303(c)(4) of the

CWA does not require EPA to

promulgate a standard in these

circumstances, today’s final rule does

not include an antidegradation policy.

G. Mixing Zone Policy

1. Proposal

On April 28, 1997, EPA proposed to

amend Idaho’s mixing zone policy for

point source discharges. EPA had

determined that Idaho’s exemption of

certain narrative criteria from applying

to water quality within a mixing zone

was inconsistent with the CWA and

EPA’s implementing regulations at 40

CFR part 131 (see 62 FR 23014). EPA’s

proposed amendment to Idaho’s mixing

zone policy would apply Idaho’s

existing narrative surface water quality

criteria at 16.01.02.200. to water quality

within a mixing zone.

2. Recent Idaho Actions

On June 19, 1997, Idaho revised its

mixing zone policy to delete the

exemption from narrative surface water

criteria at 16.01.02.200. EPA approved

Idaho’s revised mixing zone policy on

July 15, 1997, because it addressed

EPA’s objection and meets the

requirements of the CWA and EPA’s

implementing regulations at 40 CFR Part

131. Therefore, a federal promulgation

for water quality within a mixing zone

is no longer necessary.

H. Excluded Waters Provision

1. Proposal

IDAPA 16.01.02.101.03. of Idaho’s

standards excludes from water quality

standards those unclassified waters

which are ‘‘outside public lands but

located wholly and entirely upon a

person’s land.’’ EPA disapproved this

section and proposed a modification to

ensure that any waters of the United

States which fell within this exclusion

would be covered by the standards

applicable to unclassified waters. EPA

explained that this modification was

necessary because all waters of the

United States must be protected by

water quality standards. It is possible

that some waters ‘‘located wholly and

entirely upon a person’s land’’ could be

waters of the United States. In such

instances, those waters would be

protected by the CWA.

2. Comments

Comment: A number of commenters

objected to the scope of EPA’s definition

of waters of the United States or asked

for clarification of the definition. Some

suggested that the statutory phrase

‘‘navigable waters’’ be used instead.

Response: The CWA uses the term

‘‘navigable waters’’ but defines that term

in section 502 to mean ‘‘the waters of

the United States, including the

territorial seas.’’ Because the phrase

‘‘navigable waters,’’ taken out of

context, can be confusing and

erroneously imply that navigability is

the key to CWA jurisdiction, EPA chose

to use the term ‘‘waters of the United

States’’ for this rulemaking.

EPA’s regulations define waters of the

United States to include isolated waters:

The use, degradation or destructive of

could affect interstate or foreign

commerce including any such waters:

(i) Which are or could be used by interstate

or foreign travelers for recreational or other

purposes: or

(ii) From which fish or shellfish are or

could be taken and sold in interstate or

foreign commerce; or

(iii) Which are used or could be used for

industrial purpose by industries in interstate

commerce * * *

The definition also provides that

waste treatment systems are generally

not waters of the United States.

Because of questions about isolated

waters, EPA published in the preamble

to its section 404 state program

regulations a fuller explanation of this

part of the definition {53 FR 20765 (June

6, 1988)}. The discussion provides some

additional examples of the ways in

which the interstate commerce

requirement could be satisfied, i.e., if

waters are or would be used as habitat

by certain migratory birds, are or would

be used as habitat by endangered

species, or are used to irrigate crops sold

in interstate commerce. (With respect to

the latter, as explained below, if such

irrigation waters are man-made

waterways, they are outside the scope of

today’s rulemaking, even if waters of the

United States, because they are not

addressed by the state’s excluded waters

provision but rather protected under a

different state provision.)

EPA’s definition of waters of the

United States has been in place in

substantially its current form for

approximately 20 years, and has been

upheld and applied by numerous

courts. Accordingly, EPA does not

understand the commenters to be asking

EPA to revise that definition but rather

to be seeking a better understanding of

the overlap between waters of the

United States and the waters which are

excluded under Idaho’s provision, that

is, a better understanding of the waters

actually affected by EPA’s proposed

rule.

An important starting place is the

scope of the state’s ‘‘private waters’’

exclusion. First, that section does not

apply to man-made waterways, which

are instead addressed by Idaho

16.01.02.101.02, which protects manmade waterways for the uses for which

they are developed unless specifically

designated in Idaho Sections 110.

through 160. for other or additional

uses. Hence, man-made waterways are
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41177

not affected by EPA’s proposal, whether

or not they are waters of United States,

because they were not part of the private

waters exclusion from standards.

Second, the Idaho exclusion only

applies to waters ‘‘located wholly and

entirely upon a person’s land.’’ In other

words, ponds which extend across

property lines, or streams which flow

across property lines were never

excluded from standards under the state

provision, and thus are not affected by

EPA’s proposal.

In short, the waters which might be

affected by EPA’s proposal are the very

limited subset of waters in Idaho which

(1) are not man-made waterways, (2) are

confined entirely to a particular

person’s land and (3) satisfy the

commerce test for isolated waters under

the definition of waters of the United

States.

Comment: The federal government

has no right, or need, to regulate the

quality of waters on private land.

Regulating downstream waters is

sufficient.

Response: Under the commerce clause

of the United States Constitution,

Congress may regulate activities on

private property in order to protect

interstate and foreign commerce. The

Clean Water Act represents an exercise

of that authority.

One of the fundamental principles of

the CWA is that water moves in

hydrological cycles and that it is

necessary to control pollution at the

source to fully protect the nation’s

waters. To exclude all waters on private

property from protection and instead to

attempt to deal with polluted water after

it crosses the property line to public

land would be ineffective and contrary

to the CWA’s principles.

On the other hand, where a waterbody

on private land is isolated and has no

effect on other waterbodies and does not

itself have an interstate commerce

nexus, we agree that there is no need to

regulate it, and indeed such waters are

not encompassed by the definition of

waters of the United States nor

regulated under today’s rule.

Comment: The cold water biota use

which EPA proposed for unclassified

waters is an inappropriate use for most

private waters.

Response: Idaho has since revised its

‘‘unclassified waters’’ provision (now

denominated ‘‘undesignated waters’’)

and the revision has been approved by

EPA. Therefore, today’s final rule does

not contain a federal unclassified waters

provision. The revised Idaho provision

presumes that most waters in the state

support cold water biota and primary

and secondary recreation beneficial

uses. However, the revised provision

also provides that during the review of

any new or existing activity on an

undesignated water, the department

may examine all relevant data on

beneficial uses and, where the

department determines after public

notice that uses other than cold water

biota and primary or secondary

recreation are appropriate, may use the

new information in making compliance

determinations. Thus, to the extent that

any ‘‘private’’ waters are waters of the

United States, and a regulated person

has information indicating that cold

water biota is not an appropriate use, he

may present information to the state and

ask for a determination that another use

is more appropriate.

3. Final Rule

The state did not revise this provision

to address EPA’s concerns and, as

discussed above, none of the comments

provided a basis for withdrawing EPA’s

objection or modifying the proposal.

Accordingly, EPA is promulgating this

provision as proposed to ensure that all

waters of the United States are protected

by water quality standards.

I. Federal Variances

1. Proposal

The proposed rule authorized the

Regional Administrator to grant federal

WQS variances when subsequent data

showed that the uses that had been

promulgated by EPA were unattainable

in the near term for a particular

pollutant. The proposal explained that

EPA has approved states’ granting

variances from state water quality

standards in such circumstances (i.e.,

where removing a designated use

entirely could have alternatively been

allowed). EPA expressed the view that

it was appropriate to provide a

comparable federal process because

EPA’s use designations relied (at least in

part) on a rebuttable presumption that

fishable/swimmable uses were

attainable. The proposed procedures

linked the variance application process

to the NPDES permit process for

efficiency, and set out the criteria for

granting or denying federal variances.

See 62 FR 23015 for a more detailed

discussion of EPA’s proposed variance

procedure.

2. Comments

Comment: Variances should be used

infrequently and cautiously to avoid

undercutting water quality standards.

Response: EPA agrees. Under the

proposed and final language, variances

may be granted only when there is data

demonstrating to the Regional

Administrator’s satisfaction that the

requirements of 40 CFR 131.10(g) are

met and that granting the variance will

not jeopardize the continued existence

of listed species or destroy or adversely

modify their critical habitat, in

accordance with the Endangered

Species Act. In addition, any proposed

decision to issue a variance will be

subject to public notice and comment.

Moreover, the final rule includes use

designations for only five segments, and

the variance provision only applies to

those use designations. These

requirements and circumstances should

limit the use of variances to appropriate

situations.

Comment: To avoid adverse effects on

listed species, variances should

consider the needs of listed species and

should include mitigation plans.

Response: Because the granting of a

variance under the procedure in

question is a federal action, EPA will

consult with the FWS and/or NMFS

pursuant to section 7 of the ESA where

a proposed variance may affect a listed

species. Mitigation measures developed

as part of such consultation may be

included in the final variances as

needed.

Comment: The proposal is too narrow

because it makes variances available

only to NPDES applicants. Nonpoint

sources may also need variances;

variances may be needed in the TMDL

process.

Response: When first approved of by

EPA, variances were conceived of as a

mechanism which allowed CWA

permits to be written to assure

compliance with water quality

standards, as required by section

301(b)(1)(C), while providing temporary

relief when the uses under the existing

standards were not presently attainable.

EPA tied the proposal to the NPDES

permit process, because that is the only

EPA regulatory program which requires

compliance with the applicable water

quality standards, and therefore the

main context in which the need for a

such a variance would arise.

The comments concerned with the

application of variances to non-point

sources seem to be based on an

assumption that, without a variance,

nonpoint sources unable to meet a

federal standard (or TMDL) would be

vulnerable to suit or similar

enforcement action. However, the CWA

does not make water quality standards

(or TMDLs) directly enforceable; that is,

EPA’s enforcement authority under

section 309 of the Act and citizen suits

under section 505 cannot be used to

enjoin or seek penalties from someone

simply because they are violating a

water quality standard. Rather,

enforcement actions are directed against
41178 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

persons discharging without a permit or

failing to comply with a permit or an

administrative order.

As mentioned above, the final rule

establishes use designations for only

five water body segments. None of the

comments singled out these segments as

ones where a variance would likely be

needed for non-NPDES activities.

Persons who nonetheless see the need

for a variance in non-NPDES contexts,

for example, an applicant for a CWA

section 404 permit to discharge dredged

and fill material who has data indicating

that a designated use is unattainable,

may of course petition EPA to revise a

water quality standard, either by

removing a use entirely or by granting

a variance.

Comment: Under the proposal,

variances may be granted only for

standards in paragraphs (a) and (b), that

is, beneficial uses for unclassified

waters and 53 specific water bodies.

Variances should also be available for

streams subject to the bull trout

temperature criteria.

Response: The bull trout criteria only

apply to streams where the best

available information shows that bull

trout actually spawn, incubate, or rear,

in other words, streams where bull trout

are an existing use. Variances may not

be used to modify such existing uses.

However, as discussed in section E. of

this preamble, if EPA determines that

bull trout are in fact not present in a

segment of a listed bull trout stream, the

bull trout criteria will not be applied to

that segment. In addition, if bull trout

are present in a given location, but the

data indicates that less stringent

temperature criteria would fully protect

the bull trout there, paragraph (a)(3) of

the final rule provides procedures for a

site-specific temperature modification.

These procedures are a more

appropriate means to provide the relief

sought by the commenters.

Comment: A discharger should be

allowed to apply for a variance at any

time, not just when submitting an

NPDES application. The circumstances

justifying the variance may not arise, or

be apparent, until after the initial

NPDES application.

Response: EPA agrees that greater

flexibility is appropriate, and is adding

language to the rule to allow later

applications for variances if the need or

factual basis for the variance was not

available when the NPDES application

was filed. This exception should be

used only when necessary. EPA will be

in the best position to process the

variance and NPDES permit

applications expeditiously if they are

filed concurrently.

One of the commenter’s examples

involved the situation where EPA

reopens a permit to change permit

conditions. This is unlikely to create the

need for a variance. Under 40 CFR

122.62, a permit may be reopened to

reflect new or revised water quality

standards only at the permittee’s

request, unless there is a specific

reopener clause in the permit providing

otherwise.

Comment: One commenter asked that

the expiration date of a variance be able

to extend past the 5 years in the

proposal when the permit reflecting it

remains in effect.

Response: It is not necessary to extend

the term of the variance itself in these

circumstances. NPDES permits are

issued for terms not to exceed 5 years.

However, under the Administrative

Procedures Act and 40 CFR 122.7,

where a permittee files a timely

application for permit renewal, and EPA

does not complete its decision by the

expiration of the original permit, the

original permit continues in effect until

a decision is reached. Unless the

original permit had contained a

schedule of compliance requiring

compliance with the underlying

standard at some specified time, the

original permit would continue to

reflect the variance until superseded by

the new permit. Whether the new

permit would reflect the variance would

depend on whether a request for a

variance renewal had been granted.

3. Final Rule

For the reasons above, the final

variance procedure is essentially the

same as the proposal, but modified to

allow applications for variances to be

filed after NPDES permit applications

are filed in certain circumstances. EPA

is making this procedural modification

because there are circumstances where

the need or the factual basis for a

variance may not be apparent at the

time the NPDES permit application is

filed. For example, the final permit may

be sufficiently more stringent than the

draft permit that the applicant can

demonstrate that complying with the

final limit would cause substantial and

widespread social and economic

impact. In addition, a discharger to a

stream affected by today’s promulgation

may have already filed an NPDES

renewal application. A discharger with

an existing permit will not be subject to

permit conditions reflecting today’s

standards until its permit is renewed

(unless the discharger requests that its

existing permit be reopened for this

purpose); such a discharger will be able

to submit any variance request with its

application for permit renewal.

J. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or Tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined that this is not

a ‘‘significant regulatory action’’ under

the terms of Executive Order (E.O.)

12866, and is therefore not subject to

OMB review. As explained more fully

below in section L (Regulatory

Flexibility Act), EPA’s final rule does

not itself establish any requirements

directly applicable to regulated entities.

In addition, there is significant

flexibility and discretion in how the

final rule will be implemented within

the National Pollutant Discharge

Elimination System (NPDES) permit

program. While implementation of

today’s rule may ultimately result in

some new or revised permit conditions

for some dischargers, EPA’s action today

does not impose any of these as yet

unknown requirements on dischargers.

Nonetheless, consistent with the intent

of E.O. 12866, EPA has estimated

(within the limits of these uncertainties)

the possible indirect costs which might

ultimately result from this rulemaking.

The following is a summary of the

regulatory impact analysis (RIA)

prepared for this final rule. Further

discussion is included in the full RIA,

which is included in the docket for this

rulemaking.

Under the CWA, costs cannot be a

basis for adopting water quality criteria

that will not be protective of designated

uses. If a range of scientifically

defensible criteria that are protective

can be identified, however, costs may be

considered in selecting a particular

criterion within that range. As long as
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41179

existing uses are protected, costs may be

considered in designating beneficial

uses if the incremental controls would

cause substantial and widespread social

and economic impact on the community

such that the uses are not attainable.

EPA’s regulations also include other

factors that may be considered in

designating uses (see 40 CFR 131.10(g)).

The designated uses and water quality

criteria of today’s final rule are not

enforceable requirements until separate

steps are taken to implement them.

Therefore, this final rule does not have

an immediate effect on dischargers or

the community. Until actions are taken

to implement these designated uses and

criteria, there will be no economic effect

on any dischargers or the community.

In the short time prior to proposal

EPA attempted to assess, to the best of

its ability, compliance costs for facilities

that could eventually be indirectly

affected by the designated uses and

water quality criteria in the proposed

rule. However, EPA was unable to find

all of the information necessary to

accurately estimate these potential

costs. Although the costs were not

expected to be significant, EPA

developed a methodology to estimate

the potential indirect cost impacts on

facilities discharging pollutants to

waters subject to the numeric water

quality criteria and uses established by

the proposal.

Following proposal, EPA continued to

gather additional data and information

on the facilities and waters needed to

evaluate use attainability and the costs

attributable to the rule. In addition, as

discussed in sections C, D, and E, the

State of Idaho undertook several actions

that significantly reduced the number of

waters covered by this rulemaking and,

subsequently, the scope of the RIA for

today’s final rule. EPA also solicited

public comment and supporting data on

the facilities and waters it intended to

evaluate as part of the RIA, and on the

methodology it planned to use to

estimate costs associated with

implementation of the rule. EPA has

reviewed the State actions and the

comments and data provided by the

public as well as the information and

data it gathered during the public

comment period, and has estimated the

potential costs to facilities as an indirect

result of attaining numeric water quality

criteria and uses in the final rule. EPA

has included this information in the

record for today’s final rulemaking.

1. Use Attainability

As described for the proposal, in

order to properly assess the impact of

EPA’s new use designations in Idaho,

EPA performed a preliminary evaluation

to determine if fishable/swimmable uses

were attainable for all assessed water

body stream segments affected by the

proposal. For this analysis, EPA

extracted chemical-specific data from

the EPA Storage and Retrieval Water

Quality File (STORET) data base. If EPA

found that significant exceedances of

water quality criteria (in terms of

relative magnitude above the applicable

criteria, duration of exceedance above

the criteria, and the number and types

of pollutants) has occurred, then an

upgrade of designated uses may not be

appropriate. Based on this preliminary

analysis, EPA found periodic

exceedances of water quality criteria for

several water body stream segments for

several specific parameters. However,

due to the age of most of the data, and

the fact that data for all applicable

parameters were not available, EPA

could not definitively conclude that a

downgrade for any water body stream

segment affected by the proposed rule

was justified by stream condition.

Therefore for purposes of estimating the

cost of the proposed rule, EPA

conservatively assumed that the new

use designation would apply to all

affected water bodies. This assumption

was considered conservative because if

the use of a particular water body could

not be attained, then less stringent

criteria would apply to the water body

and all discharges to the water body

(and most likely lower potential costs).

For the proposal, EPA acknowledged

that an appropriate evaluation of use

attainability should consider physical,

biological, and chemical indicators to

properly evaluate whether a use can be

attained. EPA also requested data and

information that would support use

attainability analyses for the final rule.

EPA received limited data as part of the

public comments that could be used to

support use attainability analyses for the

final rule.

As described in section D, this final

rule designates cold water biota

protection for five water body segments.

Data and information was submitted as

part of the public comments for only

one of the five water body segments

(South Fork Coeur d’Alene). In

particular, chemical-specific

information was submitted for primarily

metal parameters. The information

showed that exceedances of applicable

EPA aquatic life water quality criteria

occur for several metal parameters, and

that ambient metal levels in mining

areas may be due in part to natural

metal levels that occur in mineralized

areas (e.g., from natural seeps, etc.).

However, EPA believes that elevated

levels of metals may also be a result of

historical contamination from past

mining operations. Notwithstanding, as

discussed in section D, these

exceedances alone, do not prevent the

stream from supporting cold water

biota. In addition, none of the

commenters specifically contended that

a cold water biota use was unattainable

on any of the five streams at issue on

account of compliance costs. To the

extent that the commenters did raise

cost concerns, as shown below, EPA’s

cost methodology indicates that the

costs (which are not direct costs in any

event) would be significantly less than

predicted by many of the commenters.

EPA has considered this data in its

evaluation of the potential impact of

this rulemaking to dischargers. As

described in section K.2 below, EPA

estimated a range of costs to account for

the flexibility and discretion related to

implementing water quality standards

within the NPDES permit program.

Particularly under the low-end, EPA

assumed that dischargers would take

advantage of the alternative regulatory

approaches available, as opposed to

installing costly controls to meet permit

limits. It is under this low-end scenario

that EPA acknowledged that background

data exceeded water quality criteria, and

assumed that dischargers would only

incur costs related to pursuing an

alternative regulatory approach (e.g.,

site-specific criteria). However, if these

alternative regulatory approaches were

not pursued or were not successful (e.g.,

data to produce site-specific criteria did

not result in less stringent criteria), EPA

estimated the costs under a high-end

scenario. As such, the high-end scenario

is considered a worst-case scenario

because all facilities with effluent

quality expected to exceed their permit

limits would require installation and

operation of additional control measures

with no possible opportunity to reduce

costs using alternative regulatory

approaches allowed for under the

national water quality standards and

NPDES permit programs.

2. Overview of Methodology to Estimate

Potential Costs Related to New Use

Designations

In general, the approach to deriving

costs for the final rule is the same as the

approach described for the proposal.

However, due to the reduced scope of

the final rule, as compared to the

proposal, all NPDES permitted

dischargers to the five water body

segments were evaluated for potential

costs.

As described in the proposal, the new

use designations being proposed by

EPA, by themselves, will have no

impact or effect. However, when the

water quality criteria to protect these
41180 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

uses are applied to dischargers through

the NPDES permit program, then costs

may be incurred by regulated entities

(i.e., point source dischargers) but these

costs can vary significantly because of

the wide range of control strategies

available to dischargers. Since EPA, as

the NPDES permitting authority, also

has significant flexibility and discretion

in how it chooses to implement water

quality criteria, analysis of potential

costs would be difficult to perform for

all potentially affected entities,

especially within the time-frame to

promulgate this rule. As a result, EPA

estimated the potential costs attributable

to the final rule by developing a range

of detailed cost estimates for all NPDES

permitted point source dischargers that

discharge to the five water body

segments.

The actual impact of the final rule

will depend upon how the NPDES

permit is developed and on which

control strategy the discharger selects in

order to bring the facility into

compliance. In writing NPDES permits

EPA determines the need for water

quality-based effluent limits (WQBELs)

and, if WQBELs are required, derive

WQBELs from applicable water quality

criteria. The implementation procedures

used to derive WQBELs for this analysis

were based on the methods

recommended in the EPA Technical

Support Document for Water Qualitybased Toxics Control (or TSD) (EPA/

505/2–90–001; March 1991).

Specifically, a projected effluent quality

(PEQ) was calculated. A PEQ is

considered an effluent value statistically

adjusted for uncertainty to estimate a

maximum value that may occur. The

PEQ for each selected pollutant was

compared to the projected WQBEL. If

the PEQ exceeded the projected

WQBEL, a reasonable potential existed

to exceed the WQBEL. Pollutants with

a reasonable potential to exceed then

were analyzed to determine potential

costs to achieve the projected WQBEL.

Prior to estimating compliance costs,

an engineering analysis of how each

sample facility could comply with the

projected WQBEL was performed. The

costs were then estimated based on the

decisions and assumptions made in the

analysis. To ensure consistency and

reasonableness in estimating the general

types of controls that would be

necessary for a facility to comply with

the final rule (assuming that

implementation of the rule resulted in

more stringent requirements), as well as

to integrate into the cost analysis the

other alternatives available to regulated

facilities, a costing decision matrix,

described in more detail in the proposed

rule, was used for each sample facility.

Specific rules were established in the

matrix to provide the reviewing

engineers with guidance in consistently

selecting control options.

Since dischargers can request a

variety of regulatory alternative

approaches available within the

national water quality standards and

NPDES permit programs (e.g., sitespecific criteria, variances, compliance

schedules, etc.), EPA also developed a

low-end cost estimate assuming that

these regulatory alternatives would be

used to reduce costs under certain

conditions. In particular, when the

estimated costs to comply with

WQBELs, based on new use

designations, exceeded a costeffectiveness trigger, then it was

assumed that the discharger would

pursue a regulatory alternative option.

The triggering methodology used for

this analysis was modeled after other

regulatory impact analyses prepared by

EPA for other water quality standards

rulemakings.

Finally, for the five stream segments

with specific use designation, once a

cost range was established for the

facilities EPA conducted a preliminary

analysis of whether or not these uses are

attainable. To make this determination

EPA evaluated limited biological and

chemical information on the five stream

segments, the magnitude of the

implementation costs on the individual

facilities and the economic strength of

the facilities that may incur costs as a

result of today’s rule.

3. Results for Stream Segments With

Specific Use Designation

EPA identified 12 facilities that

possess NPDES permits to discharge to

the five water body segments affected by

the final rule. To estimate costs for each

facility, EPA obtained data from NPDES

permit files (permit application, permit,

fact sheet or statement of basis),

downloaded effluent monitoring data

from EPA’s Permit Compliance System

(PCS), and extracted ambient

background data from EPA’s STORET

system.

For each facility, EPA performed an

evaluation of reasonable potential to

exceed water quality-based effluent

limits (WQBELs) based on applicable

water quality criteria to protect new use

designations (i.e., cold water biota

protection). EPA considered any

pollutant for which water quality

criteria existed and for which data were

available. EPA assumed that reasonable

potential existed if a permit limit for the

pollutant of concern was included in

the existing permit for the sample

facility. In the absence of a permit limit,

but where monitoring data were

available, EPA evaluated reasonable

potential based on the monitoring data

and the procedures contained in the

TSD (EPA 505/2–90–001; March 1991).

To calculate WQBELs, EPA used the

TSD procedures to derive maximum

daily and monthly average limits.

Background concentrations were based

on the average of data contained in

STORET for upstream monitoring

stations (including nearby tributaries);

in the absence of background data, EPA

assumed zero. Critical low flows were

calculated from data contained in the

United States Geological Survey (USGS)

Daily Flow file data base for nearby gage

stations; the 1-day, 10-year low flow

(1Q10) was used for acute aquatic life

protection and the 7-day, 10-year low

flow (7Q10) was used for chronic

aquatic life protection. In the absence of

stream flow data, EPA conservatively

assumed zero low flow.

Once WQBELs were derived, EPA

derived cost estimates that represent the

cost to remove the incremental amount

of pollutant(s) to levels needed to

comply with WQBELs (based on the

existing effluent limit or reported

effluent quality in the absence of a

limit). This assessment was based on an

evaluation of the performance of

existing treatment system units, as well

as consideration of other possible

control options (e.g., waste

minimization, additional new treatment

units).

Based on evaluation of the facilities

that may be impacted, EPA estimates

that the total potential cost resulting

from new designation for the five water

body segments will range from $1.2

million to $10.5 million. Under the lowend, the costs for individual facilities

ranged from $0 (i.e., no projected

impact) to just over $640,000. Under the

low-end, 3 facilities were assumed to

pursue alternative regulatory

approaches. Under the high-end, the

costs for individual facilities ranged

from $0 (i.e., no projected impact) to

$5,700,000. Under the high-end, no

facilities were assumed to pursue

alternative regulatory approaches.

The total baseline pollutant load for

the 12 facilities is just over 71,000 toxic

pound-equivalents per year (pollutant

toxic weights were derived using the

EPA criterion for copper, 5.6

micrograms per liter, as the

standardization factor). The pollutant

load reduction under the low-end

scenario is 21 percent or 14,800 toxic

pound-equivalents per year. Cadmium,

lead, and mercury account for 87

percent of the total pollutant load

reduction under the low-end. Under the

high-end scenario, the pollutant load

reduction is 98 percent or 70,200 toxic
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41181

pound-equivalents per year. Lead,

mercury, and silver account for over 80

percent of the total pollutant load

reduction under this scenario.

Under the low-end scenario, capital

and operation and maintenance (O&M)

costs accounted for over 66 percent of

the annual costs; costs for pursuing

regulatory alternatives accounted for

just under 34 percent of the total annual

costs. Consistent with the intent of the

high-end scenario, capital and O&M

costs account for 100 percent of the total

annual costs. Under the low- and highend scenarios, cadmium, lead, and zinc

accounted for approximately 74 and 69

percent of the total annual costs,

respectively.

While EPA was only able to gather

limited economic information on the

affected facilities in the time allowed by

the Court for this rulemaking, this

information and EPA’s regulatory

impact analysis did not support a

finding that the uses in today’s rule are

not attainable. EPA’s analysis indicated

that under the high-end scenario one

facility could potentially incur

relatively higher costs when compared

to the other 11 facilities subject to

today’s rule. However, EPA could not

conclude based on the information in

the record that those costs would result

in widespread social and economic

impact because the facility is an

abandoned mining operation designated

as a Superfund site with ongoing

remediation. Should such information

become available for any of the

facilities, the Agency could consider

this information under the variance

provision in today’s rule.

4. Overview of Approach to Estimate

Potential Costs Related to New

Temperature Criteria

EPA received many comments related

to EPA’s proposed temperature criteria

to protect certain threatened and

endangered species (Kootenai River

white sturgeon, freshwater aquatic

snails, and bull trout). As described in

section E, as a result of these comments

and associated State actions, this final

rule includes new temperature criteria

only for the protection of bull trout in

a limited number of water body

segments (see § 131.33(a) of the final

rule).

Although the number of water body

segments that are affected by EPA’s new

temperature criteria in the final rule has

been reduced from the proposal, certain

facilities may still be impacted by the

final rule. Therefore, EPA assessed the

potential costs to comply with the new

temperature criteria for bull trout.

EPA’s approach to estimate costs

included three steps. First, ambient

temperature data was collected for each

water body segment impacted by the

new temperature criteria and compared

to the criteria contained in § 131.33(a).

Due to the fact that many of the water

body segments are small tributaries in

the headwater areas of the water body,

limited ambient data existed. In the

absence of ambient data for a particular

water body, then temperature data for

other water bodies within the

hydrologic basin were used as a

surrogate.

For any water body that had

background ambient temperatures

below the new temperature criteria, EPA

identified NPDES permitted dischargers

on those segments and evaluated the

reasonable potential for the discharge to

cause an exceedance in the downstream

temperature. If a reasonable potential to

exceed was determined, then costs were

estimated to install controls that would

reduce discharge temperatures.

Although EPA is projecting the

potential costs to point sources, EPA

also received several comments related

to the potential large economic impact

that could occur as a result of the new

temperature criteria, particularly for the

agricultural and forestry segments of the

Idaho economy. As described earlier,

the scope of the new temperature

criteria has resulted in a limited number

of water body segments for which

revised temperature criteria are

required. However, EPA has only

estimated costs to point source facilities

that are subject to numeric WQBELs

included in NPDES permits. The point

sources included in this study only

include those that discharge to waters

within the State designated for

protection of bull trout. Under the CWA,

EPA has direct authority regarding

permits issued under the NPDES. EPA

did not calculate costs for any program

for which it does not have enforceable

authority, such as agricultural and

forestry-related nonpoint sources.

Further, agricultural and forestryrelated nonpoint source discharges are

technically difficult to model and

evaluate for costing purposes because

they are intermittent, highly variable,

and occur under different hydrologic or

climatic conditions than continuous

discharges from industrial and

municipal facilities, which are

evaluated under critical low flow or

drought conditions. Thus, the

evaluation of agricultural and forestryrelated nonpoint source discharges and

their effects on the environment are

highly site-specific and data intensive.

EPA predicted how the final

temperature criteria for bull trout

protection may be implemented by the

State through numeric effluent limits for

NPDES facilities and attempted to

predict the actions these facilities may

need to take in order to comply with

effluent limits based on the new criteria.

EPA envisions that some of these costs

may involve efforts to defer new effluent

limits until studies are undertaken to

allocate temperature reductions

throughout a watershed and, where

appropriate, EPA has included the costs

of these studies in the analysis.

Although EPA has focused on

calculating costs to individual NPDES

permitted facilities, EPA believes that a

comprehensive watershed approach that

addresses all significant sources of high

temperature discharges will often

present more cost-effective approaches.

EPA and the State may ask or require

these sources to implement best

management practices or participate in

a comprehensive watershed

management planning approach.

5. Results for Stream Segments With

New Temperature Criteria

There are 1877 water body segments

for which EPA has established new

temperature criteria for the protection of

bull trout. Based on data contained in

PCS, EPA estimates that there are 37

NPDES permitted facilities located on

these 1877 water body segments. Of the

37 NPDES dischargers, eight facilities

are classified as a major discharger, and

29 are classified as minor dischargers.

The largest categories of dischargers that

make up the 37 dischargers are mine

sites (15 total; 6 majors and 9 minors),

municipal wastewater treatment plants

(9 total; 1 major and 8 minors), and fish

hatcheries (6 total; 1 major and 5

minors).

Of the 37 NPDES facilities, three

facilities (1 major mine, 1 major

municipal wastewater treatment plant,

and 1 minor municipal wastewater

treatment plant) contained permit limits

for temperature discharges. Evaluation

of these three facilities was conducted

using water quality data from STORET,

three USGS data sets not contained in

STORET, and PCS monitoring data. The

USGS data sets included the National

Water Quality Assessment (NAWQA),

the National Water Quality Networks

(NQN), and a specific data request made

to the Idaho USGS for continuously

monitored temperature. The

Hydrological Unit Code (HUC) for each

of the three sample facilities

(determined from PCS) was used to

gather data from STORET and the USGS

data sets. Flow and temperature data

were not found for any monitoring

stations in STORET for the three HUCs.

The three USGS data sets contained no

monitoring stations in the HUC that

corresponded to each of the facilities.
41182 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Because of the lack of ambient

temperature and flow data for streams,

data for flow was complied using USGS

gauging stations.

As discussed in proposal for this rule,

an accurate evaluation of the need for

and cost for temperature controls

requires extensive data for both ambient

conditions (air and water) and the

effluent discharge. Since the specific

data was not readily available for the

final rule analysis for any of the sample

facilities, the following discussion

describes the potential range of costs

that could result from implementation

of the final temperature criteria for

protection of bull trout.

If it is assumed that each of 37

facilities were to pursue alternative

regulatory approaches to comply with

the temperature criteria, the total annual

costs are estimated to be just over $1

million. Alternative regulatory relief

would be considered feasible for a

facility should ambient receiving water

conditions indicate that criteria can not

be achieved (e.g., habitat unsuitable for

bull trout, natural background

temperatures higher than criteria, etc.).

In fact, EPA evaluated the limited

background ambient temperature data

that were available and found that some

waters (based on limited, historical

data) may naturally exceed the

temperature to protect bull trout. Under

these circumstances, a facility could

pursue alternatives such as the

derivation of a site-specific criterion.

The cost for a facility to pursue

regulatory alternatives was based on

those used in the Regulatory Impact

Analysis prepared for the final Great

Lakes Water Quality Guidance.

Alternatively, if it is assumed that

each of the 37 facilities were to

conservatively incur costs to install and

operate temperature control equipment,

the total annual costs are estimated to be

just under $9 million per year. This

high-end cost estimate is based upon the

installation and operation of cooling

towers at each facility. This assumption

is considered a worst-case scenario for

several reasons. First, not all types of

facilities produce wastewater with

elevated temperatures that would

require reduction (e.g., fish hatcheries,

mining sites that do not include milling

operations that require cooling waters,

and minor municipal dischargers).

Second, since many of the facilities that

discharge to bull trout protection

streams are classified as minor

dischargers, they are not expected to

discharge wastewater at a volume or at

a temperature that would effect the

receiving water quality. Finally, the

incremental decrease in temperatures

would be expected to relatively small

for most discharges, with the possible

exception of cooling water discharges.

As such, the use of cooling towers for

all discharges is unrealistic and most

likely not cost efficient (i.e., there are

other relatively simple and inexpensive

practices such as cooling ponds that

could be used in place of cooling towers

to adequately reduce temperatures).

Therefore, EPA believes that the total

annual costs to comply with the

temperature criteria in today’s final rule

will be at the lower end of the cost

range.

K. Regulatory Flexibility Act as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996

The Regulatory Flexibility Act (RFA)

provides that, whenever an agency

publishes a rule under 5 U.S.C. 553,

after being required to publish a general

notice of proposed rulemaking, an

agency must prepare a regulatory

flexibility analysis unless the head of

the agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities. 5

U.S.C. 604 and 605. The Administrator

is today certifying, pursuant to section

605(b) of the RFA, that this final rule

will not have a significant impact on a

substantial number of small entities.

Therefore, the Agency did not prepare a

regulatory flexibility analysis.

Under the CWA water quality

standards program, States must adopt

water quality standards for their waters

that must be submitted to EPA for

approval. If the Agency disapproves a

State standard, EPA must promulgate

standards consistent with the statutory

requirements. These State standards (or

EPA-promulgated standards) are

implemented through the NPDES

program that limits discharges to

navigable waters except in compliance

with an EPA permit or permit issued

under an approved State program. The

CWA requires that all NPDES permits

must include any limits on discharges

that are necessary to meet State water

quality standards.

Thus under the CWA, EPA’s

promulgation of water quality standards

where State standards are inconsistent

with statutory requirements establishes

standards that are implemented through

the NPDES permit process by

authorized States, or, in the absence of

an approved State NPDES program, by

EPA. EPA implements the NPDES

program in Idaho. EPA and authorized

States have discretion in deciding how

to meet the water quality standards and

in developing discharge limits as

needed to meet the standards. While

State or EPA implementation of

federally-promulgated water quality

standards may result in new or revised

discharge limits being placed on small

entities, the standards themselves do

not apply to any discharger, including

small entities.

Today’s final rule imposes obligations

on EPA but, as explained above, does

not itself establish any requirements

that are applicable to small entities. As

a result of this action, EPA will need to

ensure that permits issued in the State

of Idaho include any limitations on

discharges necessary to comply with the

standards in the final rule. EPA and the

State have a number of discretionary

choices associated with permit writing

and total maximum daily load (TMDL)

calculations and waste load allocations

(WLAs) which can affect the burden felt

by any small entity as a result of EPA

action to implement the final rule.

While implementation of the final rule

may ultimately result in some new or

revised permit conditions for some

dischargers, including small entities,

EPA’s action today does not impose any

of these as yet unknown requirements

on small entities.

The RFA requires analysis of the

impacts of a rule on the small entities

subject to the rules’ requirements. See

United States Distribution Companies v.

FERC, 88 F.3d 1105, 1170 (D.C. Cir.

1996). Today’s final rule establishes no

requirements applicable to small

entities, and so is not susceptible to

regulatory flexibility analysis as

prescribed by the RFA. (‘‘[N]o analysis

is necessary when an agency determines

that the rule will not have a significant

economic impact on a substantial

number of small entities that are subject

to the requirements of the rule,’ ’’ United

Distribution at 1170, quoting Mid-Thaws

Elec. Co-op v. FERC, 773 F.2d 327, 342

(D.C. Cir. 1985) (emphasis added by

United Distribution court).) The Agency

is thus certifying that today’s final rule

will not have a significant economic

impact on a substantial number of small

entities, within the meaning of the RFA.

L. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a major rule as defined by 5 U.S.C.

804(2).
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41183

M. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and Tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

Statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal Mandates’’ that may

result in expenditures to State, local,

and Tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written Statement is needed,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective or least

burdensome alternative if the

Administrator publishes with the rule

an explanation why that alternative was

not adopted.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including Tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of the affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements.

As noted above, this final rule is

limited to water quality standards for a

limited number of waters within the

State of Idaho. EPA believes that today’s

final rule contains no regulatory

requirements that might significantly or

uniquely affect small governments. EPA

also believes that 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. Thus,

today’s final rule is not subject to the

requirements of sections 202 and 205 of

the UMRA.

N. Paperwork Reduction Act

Today’s rulemaking imposes no new

or additional information collection

activities subject to the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.).

Therefore, no Information Collection

request will be submitted to the Office

of Management and Budget for review

in compliance with the Paperwork

Reduction Act.

List of Subjects in 40 CFR Part 131

Environmental protection, Indians—

lands, Intergovernmental relations,

Water pollution control, Water quality

standards.

Dated: July 21, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth 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 131.33 is added to read as

follows:

§ 131.33 Idaho.

(a) Temperature criteria for bull trout.

(1) Except for those streams or portions

of streams located in Indian country, or

as may be modified by the Regional

Administrator, EPA Region X, pursuant

to paragraph (a)(3) of this section, a

temperature criterion of 10 °C,

expressed as an average of daily

maximum temperatures over a sevenday period, applies to the waterbodies

identified in paragraph (a)(2) of this

section during the months of June, July,

August and September.

(2) The following waters are protected

for bull trout spawning and rearing:

(i) BOISE-MORE BASIN: Devils Creek,

East Fork Sheep Creek, Sheep Creek.

(ii) BROWNLEE RESERVOIR BASIN:

Crooked River, Indian Creek.

(iii) CLEARWATER BASIN: Big

Canyon Creek, Cougar Creek, Feather

Creek, Laguna Creek, Lolo Creek,

Orofino Creek, Talapus Creek, West

Fork Potlatch River.

(iv) COEUR D’ALENE LAKE BASIN:

Cougar Creek, Fernan Creek, Kid Creek,

Mica Creek, South Fork Mica Creek,

Squaw Creek, Turner Creek.

(v) HELLS CANYON BASIN: Dry

Creek, East Fork Sheep Creek, Getta

Creek, Granite Creek, Kurry Creek, Little

Granite Creek, Sheep Creek.

(vi) LEMHI BASIN: Adams Creek,

Alder Creek, Basin Creek, Bear Valley

Creek, Big Eightmile Creek, Big Springs

Creek, Big Timber Creek, Bray Creek,

Bull Creek, Cabin Creek, Canyon Creek,

Carol Creek, Chamberlain Creek, Clear

Creek, Climb Creek, Cooper Creek, Dairy

Creek, Deer Creek, Deer Park Creek, East

Fork Hayden Creek, Eighteenmile Creek,

Falls Creek, Ferry Creek, Ford Creek,

Geertson Creek, Grove Creek, Hawley

Creek, Hayden Creek, Kadletz Creek,

Kenney Creek, Kirtley Creek, Lake

Creek, Lee Creek, Lemhi River (above

Big Eightmile Creek), Little Eightmile

Creek, Little Mill Creek, Little Timber

Creek, Middle Fork Little Timber Creek,

Milk Creek, Mill Creek, Mogg Creek,

North Fork Kirtley Creek, North Fork

Little Timber Creek, Paradise Creek,

Patterson Creek, Payne Creek, Poison

Creek, Prospect Creek, Rocky Creek,

Short Creek, Squaw Creek, Squirrel

Creek, Tobias Creek, Trail Creek, West

Fork Hayden Creek, Wright Creek.

(vii) LITTLE LOST BASIN: Badger

Creek, Barney Creek, Bear Canyon, Bear

Creek, Bell Mountain Creek, Big Creek,

Bird Canyon, Black Creek, Buck

Canyon, Bull Creek, Cedar Run Creek,

Chicken Creek, Coal Creek, Corral

Creek, Deep Creek, Dry Creek, Dry Creek

Canal, Firbox Creek, Garfield Creek,

Hawley Canyon, Hawley Creek, Horse

Creek, Horse Lake Creek, Iron Creek,

Jackson Creek, Little Lost River (above

Badger Creek), Mahogany Creek, Main

Fork Sawmill Creek, Massacre Creek,

Meadow Creek, Mill Creek, Moffett

Creek, Moonshine Creek, Quigley Creek,

Red Rock Creek, Sands Creek, Sawmill

Creek, Slide Creek, Smithie Fork, Squaw

Creek, Summerhouse Canyon, Summit

Creek, Timber Creek, Warm Creek, Wet

Creek, Williams Creek.

(viii) LITTLE SALMON BASIN:

Bascum Canyon, Boulder Creek, Brown

Creek, Campbell Ditch, Castle Creek,

Copper Creek, Granite Fork Lake Fork

Rapid River, Hard Creek, Hazard Creek,

Lake Fork Rapid River, Little Salmon

River (above Hazard Creek), Paradise

Creek, Pony Creek, Rapid River, Squirrel

Creek, Trail Creek, West Fork Rapid

River.

(ix) LOCHSA BASIN: Apgar Creek,

Badger Creek, Bald Mountain Creek,

Beaver Creek, Big Flat Creek, Big Stew

Creek, Boulder Creek, Brushy Fork,

Cabin Creek, Castle Creek, Chain Creek,

Cliff Creek, Coolwater Creek,

Cooperation Creek, Crab Creek, Crooked

Fork Lochsa River, Dan Creek, Deadman

Creek, Doe Creek, Dutch Creek, Eagle

Creek, East Fork Papoose Creek, East

Fork Split Creek, East Fork Squaw

Creek, Eel Creek, Fern Creek, Fire Creek,

Fish Creek, Fish Lake Creek, Fox Creek,

Gass Creek, Gold Creek, Ham Creek,
41184 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Handy Creek, Hard Creek, Haskell

Creek, Heather Creek, Hellgate Creek,

Holly Creek, Hopeful Creek, Hungery

Creek, Indian Grave Creek, Jay Creek,

Kerr Creek, Kube Creek, Lochsa River,

Lone Knob Creek, Lottie Creek,

Macaroni Creek, Maud Creek, Middle

Fork Clearwater River, No-see-um

Creek, North Fork Spruce Creek, North

Fork Storm Creek, Nut Creek, Otter

Slide Creek, Pack Creek, Papoose Creek,

Parachute Creek, Pass Creek, Pedro

Creek, Pell Creek, Pete King Creek,

Placer Creek, Polar Creek, Postoffice

Creek, Queen Creek, Robin Creek, Rock

Creek, Rye Patch Creek, Sardine Creek,

Shoot Creek, Shotgun Creek, Skookum

Creek, Snowshoe Creek, South Fork

Spruce Creek, South Fork Storm Creek,

Split Creek, Sponge Creek, Spring

Creek, Spruce Creek, Squaw Creek,

Storm Creek, Tick Creek, Tomcat Creek,

Tumble Creek, Twin Creek, Wag Creek,

Walde Creek, Walton Creek, Warm

Springs Creek, Weir Creek, Wendover

Creek, West Fork Boulder Creek, West

Fork Papoose Creek, West Fork Squaw

Creek, West Fork Wendover Creek,

White Sands Creek, Willow Creek.

(x) LOWER CLARK FORK BASIN:

Cascade Creek, East Fork, East Fork

Creek, East Forkast Fork Creek, Gold

Creek, Johnson Creek, Lightning Creek,

Mosquito Creek, Porcupine Creek, Rattle

Creek, Spring Creek, Twin Creek,

Wellington Creek.

(xi) LOWER KOOTENAI BASIN: Ball

Creek, Boundary Creek, Brush Creek,

Cabin Creek, Caribou Creek, Cascade

Creek, Cooks Creek, Cow Creek, Curley

Creek, Deep Creek, Grass Creek, Jim

Creek, Lime Creek, Long Canyon Creek,

Mack Creek, Mission Creek, Myrtle

Creek, Peak Creek, Snow Creek, Trout

Creek.

(xii) LOWER MIDDLE FORK

SALMON BASIN: Acorn Creek, Alpine

Creek, Anvil Creek, Arrastra Creek, Bar

Creek, Beagle Creek, Beaver Creek,

Belvidere Creek, Big Creek, Birdseye

Creek, Boulder Creek, Brush Creek,

Buck Creek, Bull Creek, Cabin Creek,

Camas Creek, Canyon Creek, Castle

Creek, Clark Creek, Coin Creek, Corner

Creek, Coxey Creek, Crooked Creek, Doe

Creek, Duck Creek, East Fork Holy

Terror Creek, Fawn Creek, Flume Creek,

Fly Creek, Forge Creek, Furnace Creek,

Garden Creek, Government Creek,

Grouse Creek, Hammer Creek, Hand

Creek, Holy Terror Creek, J Fell Creek,

Jacobs Ladder Creek, Lewis Creek,

Liberty Creek, Lick Creek, Lime Creek,

Little Jacket Creek, Little Marble Creek,

Little White Goat Creek, Little Woodtick

Creek, Logan Creek, Lookout Creek,

Loon Creek, Martindale Creek, Meadow

Creek, Middle Fork Smith Creek,

Monumental Creek, Moore Creek,

Mulligan Creek, North Fork Smith

Creek, Norton Creek, Placer Creek, Pole

Creek, Rams Creek, Range Creek,

Routson Creek, Rush Creek, Sawlog

Creek, Sheep Creek, Sheldon Creek,

Shellrock Creek, Ship Island Creek,

Shovel Creek, Silver Creek, Smith

Creek, Snowslide Creek, Soldier Creek,

South Fork Camas Creek, South Fork

Chamberlain Creek, South Fork Holy

Terror Creek, South Fork Norton Creek,

South Fork Rush Creek, South Fork

Sheep Creek, Spider Creek, Spletts

Creek, Telephone Creek, Trail Creek,

Two Point Creek, West Fork Beaver

Creek, West Fork Camas Creek, West

Fork Monumental Creek, West Fork

Rush Creek, White Goat Creek, Wilson

Creek.

(xiii) LOWER NORTH FORK

CLEARWATER BASIN: Adair Creek,

Badger Creek, Bathtub Creek, Beaver

Creek, Black Creek, Brush Creek, Buck

Creek, Butte Creek, Canyon Creek,

Caribou Creek, Crimper Creek, Dip

Creek, Dog Creek, Elmer Creek, Falls

Creek, Fern Creek, Goat Creek, Isabella

Creek, John Creek, Jug Creek, Jungle

Creek, Lightning Creek, Little Lost Lake

Creek, Little North Fork Clearwater

River, Lost Lake Creek, Lund Creek,

Montana Creek, Mowitch Creek,

Papoose Creek, Pitchfork Creek, Rocky

Run, Rutledge Creek, Spotted Louis

Creek, Triple Creek, Twin Creek, West

Fork Montana Creek, Willow Creek.

(xiv) LOWER SALMON BASIN: Bear

Gulch, Berg Creek, East Fork John Day

Creek, Elkhorn Creek, Fiddle Creek,

French Creek, Hurley Creek, John Day

Creek, Kelly Creek, Klip Creek, Lake

Creek, Little Slate Creek, Little Van

Buren Creek, No Business Creek, North

Creek, North Fork Slate Creek, North

Fork White Bird Creek, Partridge Creek,

Slate Creek, Slide Creek, South Fork

John Day Creek, South Fork White Bird

Creek, Warm Springs Creek.

(xv) LOWER SELWAY BASIN:

Anderson Creek, Bailey Creek, Browns

Spring Creek, Buck Lake Creek, Butte

Creek, Butter Creek, Cabin Creek, Cedar

Creek, Chain Creek, Chute Creek, Dent

Creek, Disgrace Creek, Double Creek,

East Fork Meadow Creek, East Fork

Moose Creek, Elbow Creek, Fivemile

Creek, Fourmile Creek, Gate Creek,

Gedney Creek, Goddard Creek, Horse

Creek, Indian Hill Creek, Little Boulder

Creek, Little Schwar Creek, Matteson

Creek, Meadow Creek, Monument

Creek, Moose Creek, Moss Creek,

Newsome Creek, North Fork Moose

Creek, Rhoda Creek, Saddle Creek,

Schwar Creek, Shake Creek, Spook

Creek, Spur Creek, Tamarack Creek,

West Fork Anderson Creek, West Fork

Gedney Creek, West Moose Creek,

Wounded Doe Creek.

(xvi) MIDDLE FORK CLEARWATER

BASIN: Baldy Creek, Big Cedar Creek,

Browns Spring Creek, Clear Creek,

Middle Fork Clear Creek, Pine Knob

Creek, South Fork Clear Creek.

(xvii) MIDDLE FORK PAYETTE

BASIN: Bull Creek, Middle Fork Payette

River (above Fool Creek), Oxtail Creek,

Silver Creek, Sixteen-to-one Creek.

(xviii) MIDDLE SALMONCHAMBERLAIN BASIN: Arrow Creek,

Bargamin Creek, Bat Creek, Bay Creek,

Bear Creek, Bend Creek, Big Elkhorn

Creek, Big Harrington Creek, Big

Mallard Creek, Big Squaw Creek, Bleak

Creek, Bronco Creek, Broomtail Creek,

Brown Creek, Cayuse Creek, Center

Creek, Chamberlain Creek, Cliff Creek,

Colt Creek, Corn Creek, Crooked Creek,

Deer Creek, Dennis Creek,

Disappointment Creek, Dismal Creek,

Dog Creek, East Fork Fall Creek, East

Fork Horse Creek, East Fork Noble

Creek, Fall Creek, Filly Creek, Fish

Creek, Flossie Creek, Game Creek, Gap

Creek, Ginger Creek, Green Creek,

Grouse Creek, Guard Creek, Hamilton

Creek, Horse Creek, Hot Springs Creek,

Hotzel Creek, Hungry Creek, Iodine

Creek, Jack Creek, Jersey Creek, Kitchen

Creek, Lake Creek, Little Horse Creek,

Little Lodgepole Creek, Little Mallard

Creek, Lodgepole Creek, Mayflower

Creek, McCalla Creek, Meadow Creek,

Moose Creek, Moose Jaw Creek, Mule

Creek, Mustang Creek, No Name Creek,

Owl Creek, Poet Creek, Pole Creek,

Porcupine Creek, Prospector Creek, Pup

Creek, Queen Creek, Rainey Creek,

Ranch Creek, Rattlesnake Creek, Red

Top Creek, Reynolds Creek, Rim Creek,

Ring Creek, Rock Creek, Root Creek,

Runaway Creek, Sabe Creek, Saddle

Creek, Salt Creek, Schissler Creek,

Sheep Creek, Short Creek, Shovel Creek,

Skull Creek, Slaughter Creek, Slide

Creek, South Fork Cottonwood Creek,

South Fork Chamberlain Creek, South

Fork Kitchen Creek, South Fork Salmon

River, Spread Creek, Spring Creek,

Starvation Creek, Steamboat Creek,

Steep Creek, Stud Creek, Warren Creek,

Webfoot Creek, West Fork Chamberlain

Creek, West Fork Rattlesnake Creek,

West Horse Creek, Whimstick Creek,

Wind River, Woods Fork Horse Creek.

(xix) MIDDLE SALMON-PANTHER

BASIN: Allen Creek, Arnett Creek,

Beaver Creek, Big Deer Creek, Blackbird

Creek, Boulder Creek, Cabin Creek,

Camp Creek, Carmen Creek, Clear Creek,

Colson Creek, Copper Creek, Corral

Creek, Cougar Creek, Cow Creek,

Deadhorse Creek, Deep Creek, East

Boulder Creek, Elkhorn Creek, Fawn

Creek, Fourth Of July Creek, Freeman

Creek, Homet Creek, Hughes Creek, Hull

Creek, Indian Creek, Iron Creek, Jackass

Creek, Jefferson Creek, Jesse Creek, Lake
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41185

Creek, Little Deep Creek, Little Hat

Creek, Little Sheep Creek, McConn

Creek, McKim Creek, Mink Creek,

Moccasin Creek, Moose Creek, Moyer

Creek, Musgrove Creek, Napias Creek,

North Fork Hughes Creek, North Fork

Iron Creek, North Fork Salmon River,

North Fork Williams Creek, Opal Creek,

Otter Creek, Owl Creek, Panther Creek,

Park Creek, Phelan Creek, Pine Creek,

Pony Creek, Porphyry Creek, Pruvan

Creek, Rabbit Creek, Rancherio Creek,

Rapps Creek, Salt Creek, Salzer Creek,

Saw Pit Creek, Sharkey Creek, Sheep

Creek, South Fork Cabin Creek, South

Fork Iron Creek, South Fork Moyer

Creek, South Fork Phelan Creek, South

Fork Sheep Creek, South Fork Williams

Creek, Spring Creek, Squaw Creek, Trail

Creek, Twelvemile Creek, Twin Creek,

Weasel Creek, West Fork Blackbird

Creek, West Fork Iron Creek, Williams

Creek, Woodtick Creek.

(xx) MOYIE BASIN: Brass Creek,

Bussard Creek, Copper Creek, Deer

Creek, Faro Creek, Keno Creek, Kreist

Creek, Line Creek, McDougal Creek,

Mill Creek, Moyie River (above Skin

Creek), Placer Creek, Rutledge Creek,

Skin Creek, Spruce Creek, West Branch

Deer Creek.

(xxi) NORTH AND MIDDLE FORK

BOISE BASIN: Abby Creek, Arrastra

Creek, Bald Mountain Creek, Ballentyne

Creek, Banner Creek, Bayhouse Creek,

Bear Creek, Bear River, Big Gulch, Big

Silver Creek, Billy Creek, Blackwarrior

Creek, Bow Creek, Browns Creek, Buck

Creek, Cabin Creek, Cahhah Creek,

Camp Gulch, China Fork, Coma Creek,

Corbus Creek, Cow Creek, Crooked

River, Cub Creek, Decker Creek, Dutch

Creek, Dutch Frank Creek, East Fork

Roaring River, East Fork Swanholm

Creek, East Fork Yuba River, Flint

Creek, Flytrip Creek, Gotch Creek,

Graham Creek, Granite Creek, Grays

Creek, Greylock Creek, Grouse Creek,

Hot Creek, Hungarian Creek, Joe Daley

Creek, Johnson Creek, Kid Creek, King

Creek, La Mayne Creek, Leggit Creek,

Lightening Creek, Little Queens River,

Little Silver Creek, Louise Creek, Lynx

Creek, Mattingly Creek, McKay Creek,

McLeod Creek, McPhearson Creek,

Middle Fork Boise River (above Roaring

River), Middle Fork Corbus Creek,

Middle Fork Roaring River, Mill Creek,

Misfire Creek, Montezuma Creek, North

Fork Boise River (above Bear River),

Phifer Creek, Pikes Fork, Quartz Gulch,

Queens River, Rabbit Creek, Right

Creek, Roaring River, Robin Creek, Rock

Creek, Rockey Creek, Sawmill Creek,

Scenic Creek, Scotch Creek, Scott Creek,

Shorip Creek, Smith Creek, Snow Creek,

Snowslide Creek, South Fork Corbus

Creek, South Fork Cub Creek, Spout

Creek, Steamboat Creek, Steel Creek,

Steppe Creek, Swanholm Creek, Timpa

Creek, Trail Creek, Trapper Creek,

Tripod Creek, West Fork Creek, West

Warrior Creek, Willow Creek, Yuba

River.

(xxii) NORTH FORK PAYETTE

BASIN: Gold Fork River, North Fork

Gold Fork River, Pearsol Creek.

(xxiii) AHSIMEROI BASIN: Baby

Creek, Bear Creek, Big Creek, Big Gulch,

Burnt Creek, Christian Gulch, Dead Cat

Canyon, Ditch Creek, Donkey Creek,

Doublespring Creek, Dry Canyon, Dry

Gulch, East Fork Burnt Creek, East Fork

Morgan Creek, East Fork Pahsimeroi

River, East Fork Patterson Creek,

Elkhorn Creek, Falls Creek, Goldberg

Creek, Hillside Creek, Inyo Creek, Long

Creek, Mahogany Creek, Mill Creek,

Morgan Creek, Morse Creek, Mulkey

Gulch, North Fork Big Creek, North Fork

Morgan Creek, Pahsimeroi River (above

Big Creek), Patterson Creek, Rock Spring

Canyon, Short Creek, Snowslide Creek,

South Fork Big Creek, Spring Gulch,

Squaw Creek, Stinking Creek, Tater

Creek, West Fork Burnt Creek, West

Fork North Fork Big Creek.

(xxiv) PAYETTE BASIN: Squaw

Creek, Third Fork Squaw Creek.

(xxv) PEND OREILLE LAKE BASIN:

Branch North Gold Creek, Cheer Creek,

Chloride Gulch, Dry Gulch, Dyree

Creek, Flume Creek, Gold Creek, Granite

Creek, Grouse Creek, Kick Bush Gulch,

North Fork Grouse Creek, North Gold

Creek, Plank Creek, Rapid Lightning

Creek, South Fork Grouse Creek, Strong

Creek, Thor Creek, Trestle Creek, West

Branch Pack River, West Gold Creek,

Wylie Creek, Zuni Creek.

(xxvi) PRIEST BASIN: Abandon

Creek, Athol Creek, Bath Creek, Bear

Creek, Bench Creek, Blacktail Creek,

Bog Creek, Boulder Creek, Bugle Creek,

Canyon Creek, Caribou Creek, Cedar

Creek, Chicopee Creek, Deadman Creek,

East Fork Trapper Creek, East River,

Fedar Creek, Floss Creek, Gold Creek,

Granite Creek, Horton Creek, Hughes

Fork, Indian Creek, Jackson Creek, Jost

Creek, Kalispell Creek, Kent Creek,

Keokee Creek, Lime Creek, Lion Creek,

Lost Creek, Lucky Creek, Malcom Creek,

Middle Fork East River, Muskegon

Creek, North Fork Granite Creek, North

Fork Indian Creek, Packer Creek, Rock

Creek, Ruby Creek, South Fork Granite

Creek, South Fork Indian Creek, South

Fork Lion Creek, Squaw Creek, Tango

Creek, Tarlac Creek, The Thorofare,

Trapper Creek, Two Mouth Creek, Uleda

Creek, Priest R. (above Priest Lake), Zero

Creek.

(xxvii) SOUTH FORK BOISE BASIN:

Badger Creek, Bear Creek, Bear Gulch,

Big Smoky Creek, Big Water Gulch,

Boardman Creek, Burnt Log Creek,

Cayuse Creek, Corral Creek, Cow Creek,

Edna Creek, Elk Creek, Emma Creek,

Feather River, Fern Gulch, Grape Creek,

Gunsight Creek, Haypress Creek,

Heather Creek, Helen Creek, Johnson

Creek, Lincoln Creek, Little Cayuse

Creek, Little Rattlesnake Creek, Little

Skeleton Creek, Little Smoky Creek,

Loggy Creek, Mule Creek, North Fork

Ross Fork, Pinto Creek, Rattlesnake

Creek, Ross Fork, Russel Gulch, Salt

Creek, Shake Creek, Skeleton Creek,

Slater Creek, Smokey Dome Canyon,

South Fork Ross Fork, Three Forks

Creek, Tipton Creek, Vienna Creek,

Weeks Gulch, West Fork Big Smoky

Creek, West Fork Salt Creek, West Fork

Skeleton Creek, Willow Creek.

(xxviii) SOUTH FORK CLEARWATER

BASIN: American River, Baker Gulch,

Baldy Creek, Bear Creek, Beaver Creek,

Big Canyon Creek, Big Elk Creek, Blanco

Creek, Boundary Creek, Box Sing Creek,

Boyer Creek, Cartwright Creek, Cole

Creek, Crooked River, Dawson Creek,

Deer Creek, Ditch Creek, East Fork

American River, East Fork Crooked

River, Elk Creek, Fivemile Creek, Flint

Creek, Fourmile Creek, Fox Creek,

French Gulch, Galena Creek, Gospel

Creek, Hagen Creek, Hays Creek, Johns

Creek, Jungle Creek, Kirks Fork

American River, Little Elk Creek, Little

Moose Creek, Little Siegel Creek, Loon

Creek, Mackey Creek, Meadow Creek,

Melton Creek, Middle Fork Red River,

Mill Creek, Monroe Creek, Moores

Creek, Moores Lake Creek, Moose Butte

Creek, Morgan Creek, Mule Creek,

Newsome Creek, Nuggett Creek,

Otterson Creek, Pat Brennan Creek, Pilot

Creek, Quartz Creek, Queen Creek,

Rabbit Creek, Rainbow Gulch, Red

River, Relief Creek, Ryan Creek, Sally

Ann Creek, Sawmill Creek, Schooner

Creek, Schwartz Creek, Sharmon Creek,

Siegel Creek, Silver Creek, Sixmile

Creek, Sixtysix Creek, Snoose Creek,

Sourdough Creek, South Fork Red River,

Square Mountain Creek, Swale Creek,

Swift Creek, Taylor Creek, Tenmile

Creek, Trail Creek, Trapper Creek, Trout

Creek, Twentymile Creek, Twin Lakes

Creek, Umatilla Creek, West Fork Big

Elk Creek, West Fork Crooked River,

West Fork Gospel Creek, West Fork

Newsome Creek, West Fork Red River,

West Fork Twentymile Creek, Whiskey

Creek, Whitaker Creek, Williams Creek.

(xxix) SOUTH FORK PAYETTE

BASIN: Archie Creek, Ash Creek, Baron

Creek, Basin Creek, Bear Creek, Beaver

Creek, Big Spruce Creek, Bitter Creek,

Blacks Creek, Blue Jay Creek, Burn

Creek, Bush Creek, Camp Creek, Canyon

Creek, Casner Creek, Cat Creek,

Chapman Creek, Charters Creek, Clear

Creek, Coski Creek, Cup Creek, Dead

Man Creek, Deadwood River, Deer

Creek, East Fork Deadwood Creek, East
41186 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Fork Warm Springs Creek, Eby Creek,

Elkhorn Creek, Emma Creek, Fall Creek,

Fence Creek, Fern Creek, Fivemile

Creek, Fox Creek, Garney Creek, Gates

Creek, Goat Creek, Grandjem Creek,

Grouse Creek, Habit Creek, Helende

Creek, Horse Creek, Huckleberry Creek,

Jackson Creek, Kettle Creek, Kirkham

Creek, Lake Creek, Lick Creek, Little

Tenmile Creek, Logging Gulch, Long

Creek, MacDonald Creek, Meadow

Creek, Middle Fork Warm Springs

Creek, Miller Creek, Monument Creek,

Moulding Creek, Ninemile Creek, No

Man Creek, No Name Creek, North Fork

Baron Creek, North Fork Canyon Creek,

North Fork Deer Creek, North Fork

Whitehawk Creek, O’Keefe Creek,

Packsaddle Creek, Park Creek, Pass

Creek, Pinchot Creek, Pine Creek,

Pitchfork Creek, Pole Creek, Richards

Creek, Road Fork Rock Creek, Rock

Creek, Rough Creek, Scott Creek, Silver

Creek, Sixmile Creek, Smith Creek,

Smokey Creek, South Fork Beaver

Creek, South Fork Canyon Creek, South

Fork Clear Creek, South Fork Payette

River (above Rock Creek), South Fork

Scott Creek, South Fork Warm Spring

Creek, Spring Creek, Steep Creek,

Stratton Creek, Topnotch Creek, Trail

Creek, Wapiti Creek, Warm Spring

Creek, Warm Springs Creek,

Whangdoodle Creek, Whitehawk Creek,

Wild Buck Creek, Wills Gulch, Wilson

Creek, Wolf Creek.

(xxx) SOUTH FORK SALMON

BASIN: Alez Creek, Back Creek, Bear

Creek, Bishop Creek, Blackmare Creek,

Blue Lake Creek, Buck Creek, Buckhorn

Bar Creek, Buckhorn Creek, Burgdorf

Creek, Burntlog Creek, Cabin Creek, Calf

Creek, Camp Creek, Cane Creek, Caton

Creek, Cinnabar Creek, Cliff Creek, Cly

Creek, Cougar Creek, Cow Creek, Cox

Creek, Curtis Creek, Deep Creek, Dollar

Creek, Dutch Creek, East Fork South

Fork Salmon River, East Fork Zena

Creek, Elk Creek, Enos Creek, Falls

Creek, Fernan Creek, Fiddle Creek,

Fitsum Creek, Flat Creek, Fourmile

Creek, Goat Creek, Grimmet Creek,

Grouse Creek, Halfway Creek, Hanson

Creek, Hays Creek, Holdover Creek,

Hum Creek, Indian Creek, Jeanette

Creek, Johnson Creek, Josephine Creek,

Jungle Creek, Knee Creek, Krassel Creek,

Lake Creek, Landmark Creek, Lick

Creek, Little Buckhorn Creek, Little

Indian Creek, Lodgepole Creek, Loon

Creek, Maverick Creek, Meadow Creek,

Middle Fork Elk Creek, Missouri Creek,

Moose Creek, Mormon Creek, Nasty

Creek, Nethker Creek, Nick Creek, No

Mans Creek, North Fork Bear Creek,

North Fork Buckhorn Creek, North Fork

Camp Creek, North Fork Dollar Creek,

North Fork Fitsum Creek, North Fork

Lake Fork, North Fork Lick Creek, North

Fork Riordan Creek, North Fork Six-bit

Creek, Oompaul Creek, Paradise Creek,

Park Creek, Peanut Creek, Pepper Creek,

Phoebe Creek, Piah Creek, Pid Creek,

Pilot Creek, Pony Creek, Porcupine

Creek, Porphyry Creek, Prince Creek,

Profile Creek, Quartz Creek, Reeves

Creek, Rice Creek, Riordan Creek,

Roaring Creek, Ruby Creek, Rustican

Creek, Ryan Creek, Salt Creek, Sand

Creek, Secesh River, Sheep Creek, Silver

Creek, Sister Creek, Six-Bit Creek, South

Fork Bear Creek, South Fork Blackmare

Creek, South Fork Buckhorn Creek,

South Fork Cougar Creek, South Fork

Elk Creek, South Fork Fitsum Creek,

South Fork Fourmile Creek, South Fork

Salmon River, South Fork Threemile

Creek, Split Creek, Steep Creek, Sugar

Creek, Summit Creek, Tamarack Creek,

Teepee Creek, Threemile Creek, Trail

Creek, Trapper Creek, Trout Creek,

Tsum Creek, Two-bit Creek, Tyndall

Creek, Vein Creek, Victor Creek,

Wardenhoff Creek, Warm Lake Creek,

Warm Spring Creek, West Fork

Buckhorn Creek, West Fork Elk Creek,

West Fork Enos Creek, West Fork Zena

Creek, Whangdoodle Creek, Willow

Basket Creek, Willow Creek, Zena

Creek.

(xxxi) ST. JOE R. BASIN: Bad Bear

Creek, Bean Creek, Bear Creek, Beaver

Creek, Bedrock Creek, Berge Creek, Bird

Creek, Blue Grouse Creek, Boulder

Creek, Broadaxe Creek, Bruin Creek,

California Creek, Cherry Creek, Clear

Creek, Color Creek, Copper Creek, Dolly

Creek, Dump Creek, Eagle Creek, East

Fork Bluff Creek, East Fork Gold Creek,

Emerald Creek, Fishhook Creek, Float

Creek, Fly Creek, Fuzzy Creek, Gold

Creek, Heller Creek, Indian Creek,

Kelley Creek, Malin Creek, Marble

Creek, Medicine Creek, Mica Creek, Mill

Creek, Mosquito Creek, North Fork Bean

Creek, North Fork Saint Joe River, North

Fork Simmons Creek, Nugget Creek,

Packsaddle Creek, Periwinkle Creek,

Prospector Creek, Quartz Creek, Red

Cross Creek, Red Ives Creek, Ruby

Creek, Saint Joe River (above Siwash

Creek), Setzer Creek, Sherlock Creek,

Simmons Creek, Siwash Creek,

Skookum Creek, Thomas Creek, Thorn

Creek, Three Lakes Creek, Timber Creek,

Tinear Creek, Trout Creek, Tumbledown

Creek, Wahoo Creek, Washout Creek,

Wilson Creek, Yankee Bar Creek.

(xxxii) UPPER COEUR D’ALENE

BASIN: Brown Creek, Falls Creek,

Graham Creek.

(xxxiii) UPPER KOOTENAI BASIN:

Halverson Cr, North Callahan Creek,

South Callahan Creek, West Fork Keeler

Creek

(xxxiv) UPPER MIDDLE FORK

SALMON BASIN: Asher Creek,

Automatic Creek, Ayers Creek, Baldwin

Creek, Banner Creek, Bear Creek, Bear

Valley Creek, Bearskin Creek, Beaver

Creek, Bernard Creek, Big Chief Creek,

Big Cottonwood Creek, Birch Creek,

Blue Lake Creek, Blue Moon Creek,

Boundary Creek, Bridge Creek,

Browning Creek, Buck Creek, Burn

Creek, Cabin Creek, Cache Creek, Camp

Creek, Canyon Creek, Cap Creek, Cape

Horn Creek, Casner Creek, Castle Fork,

Casto Creek, Cat Creek, Chokebore

Creek, Chuck Creek, Cliff Creek, Cold

Creek, Collie Creek, Colt Creek, Cook

Creek, Corley Creek, Cornish Creek,

Cottonwood Creek, Cougar Creek,

Crystal Creek, Cub Creek, Cultus Creek,

Dagger Creek, Deer Creek, Deer Horn

Creek, Doe Creek, Dry Creek, Duffield

Creek, Dynamite Creek, Eagle Creek,

East Fork Elk Creek, East Fork Indian

Creek, East Fork Mayfield Creek, Elk

Creek, Elkhorn Creek, Endoah Creek,

Fall Creek, Fawn Creek, Feltham Creek,

Fir Creek, Flat Creek, Float Creek,

Foresight Creek, Forty-five Creek, Fortyfour Creek, Fox Creek, Full Moon Creek,

Fuse Creek, Grays Creek, Grenade Creek,

Grouse Creek, Gun Creek, Half Moon

Creek, Hogback Creek, Honeymoon

Creek, Hot Creek, Ibex Creek, Indian

Creek, Jose Creek, Kelly Creek, Kerr

Creek, Knapp Creek, Kwiskwis Creek,

Lime Creek, Lincoln Creek, Little Beaver

Creek, Little Cottonwood Creek, Little

East Fork Elk Creek, Little Indian Creek,

Little Loon Creek, Little Pistol Creek,

Lola Creek, Loon Creek, Lucinda Creek,

Lucky Creek, Luger Creek, Mace Creek,

Mack Creek, Marble Creek, Marlin

Creek, Marsh Creek, Mayfield Creek,

McHoney Creek, McKee Creek, Merino

Creek, Middle Fork Elkhorn Creek,

Middle Fork Indian Creek, Middle Fork

Salmon River (above Soldier Creek),

Mine Creek, Mink Creek, Moonshine

Creek, Mowitch Creek, Muskeg Creek,

Mystery Creek, Nelson Creek, New

Creek, No Name Creek, North Fork Elk

Creek, North Fork Elkhorn Creek, North

Fork Sheep Creek, North Fork Sulphur

Creek, Papoose Creek, Parker Creek,

Patrol Creek, Phillips Creek, Pierson

Creek, Pinyon Creek, Pioneer Creek,

Pistol Creek, Placer Creek, Poker Creek,

Pole Creek, Popgun Creek, Porter Creek,

Prospect Creek, Rabbit Creek, Rams

Horn Creek, Range Creek, Rapid River,

Rat Creek, Remington Creek, Rock

Creek, Rush Creek, Sack Creek, Safety

Creek, Salt Creek, Savage Creek, Scratch

Creek, Seafoam Creek, Shady Creek,

Shake Creek, Sheep Creek, Sheep Trail

Creek, Shell Creek, Shrapnel Creek, Siah

Creek, Silver Creek, Slide Creek,

Snowshoe Creek, Soldier Creek, South

Fork Cottonwood Creek, South Fork

Sheep Creek, Spike Creek, Springfield
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 41187

Creek, Squaw Creek, Sulphur Creek,

Sunnyside Creek, Swamp Creek,

Tennessee Creek, Thatcher Creek,

Thicket Creek, Thirty-two Creek,

Tomahawk Creek, Trail Creek, Trapper

Creek, Trigger Creek, Twenty-two Creek,

Vader Creek, Vanity Creek, Velvet

Creek, Walker Creek, Wampum Creek,

Warm Spring Creek, West Fork Elk

Creek, West Fork Little Loon Creek,

West Fork Mayfield Creek, White Creek,

Wickiup Creek, Winchester Creek,

Winnemucca Creek, Wyoming Creek.

(xxxv) UPPER NORTH FORK

CLEARWATER BASIN: Adams Creek,

Avalanche Creek, Bacon Creek, Ball

Creek, Barn Creek, Barnard Creek,

Barren Creek, Bear Creek, Beaver Dam

Creek, Bedrock Creek, Bill Creek,

Bostonian Creek, Boundary Creek, Burn

Creek, Butter Creek, Camp George

Creek, Canyon Creek, Cayuse Creek,

Chamberlain Creek, Clayton Creek, Cliff

Creek, Coffee Creek, Cold Springs Creek,

Collins Creek, Colt Creek, Cool Creek,

Copper Creek, Corral Creek, Cougar

Creek, Craig Creek, Crater Creek, Cub

Creek, Davis Creek, Deadwood Creek,

Deer Creek, Dill Creek, Drift Creek,

Elizabeth Creek, Fall Creek, Fire Creek,

Fix Creek, Flame Creek, Fly Creek,

Fourth of July Creek, Fro Creek, Frog

Creek, Frost Creek, Gilfillian Creek,

Goose Creek, Grass Creek, Gravey Creek,

Grizzly Creek, Hanson Creek, Heather

Creek, Henry Creek, Hidden Creek,

Howard Creek, Independence Creek,

Jam Creek, Japanese Creek, Johnagan

Creek, Johnny Creek, Junction Creek,

Kelly Creek, Kid Lake Creek, Kodiak

Creek, Lake Creek, Laundry Creek,

Lightning Creek, Little Moose Creek,

Little Weitas Creek, Liz Creek, Long

Creek, Marten Creek, Meadow Creek,

Middle Creek, Middle North Fork Kelly

Creek, Mill Creek, Mire Creek, Monroe

Creek, Moose Creek, Negro Creek, Nettle

Creek, Niagra Gulch, North Fork

Clearwater River (Fourth of July Creek),

Nub Creek, Osier Creek, Perry Creek,

Pete Ott Creek, Placer Creek, Polar

Creek, Post Creek, Potato Creek, Quartz

Creek, Rapid Creek, Rawhide Creek,

Roaring Creek, Rock Creek, Rocky Ridge

Creek, Ruby Creek, Saddle Creek, Salix

Creek, Scurry Creek, Seat Creek, Short

Creek, Shot Creek, Siam Creek, Silver

Creek, Skull Creek, Slide Creek, Smith

Creek, Snow Creek, South Fork Kelly

Creek, Spud Creek, Spy Creek, Stolen

Creek, Stove Creek, Sugar Creek, Swamp

Creek, Tinear Creek, Tinkle Creek,

Toboggan Creek, Trail Creek, Vanderbilt

Gulch, Wall Creek, Weitas Creek,

Williams Creek, Windy Creek, Wolf

Creek, Young Creek.

(xxxvi) UPPER SALMON BASIN:

Alder Creek, Alpine Creek, Alta Creek,

Alturas Lake Creek, Anderson Creek,

Aspen Creek, Basin Creek, Bayhorse

Creek, Bear Creek, Beaver Creek, Big

Boulder Creek, Block Creek, Blowfly

Creek, Blue Creek, Boundary Creek,

Bowery Creek, Broken Ridge Creek,

Bruno Creek, Buckskin Creek, Cabin

Creek, Camp Creek, Cash Creek, Challis

Creek, Chamberlain Creek, Champion

Creek, Cherry Creek, Cinnabar Creek,

Cleveland Creek, Coal Creek, Crooked

Creek, Darling Creek, Deadwood Creek,

Decker Creek, Deer Creek, Dry Creek,

Duffy Creek, East Basin Creek, East Fork

Salmon River, East Fork Valley Creek,

East Pass Creek, Eddy Creek, Eightmile

Creek, Elevenmile Creek, Elk Creek,

Ellis Creek, Estes Creek, First Creek,

Fisher Creek, Fishhook Creek, Fivemile

Creek, Fourth of July Creek, Frenchman

Creek, Garden Creek, Germania Creek,

Goat Creek, Gold Creek, Gooseberry

Creek, Greylock Creek, Hay Creek, Hell

Roaring Creek, Herd Creek, Huckleberry

Creek, Iron Creek, Job Creek, Jordan

Creek, Juliette Creek, Kelly Creek,

Kinnikinic Creek, Lick Creek, Lightning

Creek, Little Basin Creek, Little Beaver

Creek, Little Boulder Creek, Little West

Fork Morgan Creek, Lodgepole Creek,

Lone Pine Creek, Lost Creek, MacRae

Creek, Martin Creek, McKay Creek,

Meadow Creek, Mill Creek, Morgan

Creek, Muley Creek, Ninemile Creek,

Noho Creek, Pack Creek, Park Creek, Pat

Hughes Creek, Pig Creek, Pole Creek,

Pork Creek, Prospect Creek, Rainbow

Creek, Redfish Lake Creek, Road Creek,

Rough Creek, Sage Creek, Sagebrush

Creek, Salmon River (Redfish Lake

Creek), Sawmill Creek, Second Creek,

Sevenmile Creek, Sheep Creek, Short

Creek, Sixmile Creek, Slate Creek,

Smiley Creek, South Fork East Fork

Salmon River, Squaw Creek, Stanley

Creek, Stephens Creek, Summit Creek,

Sunday Creek, Swimm Creek, Taylor

Creek, Tenmile Creek, Tennel Creek,

Thompson Creek, Three Cabins Creek,

Trail Creek, Trap Creek, Trealor Creek,

Twelvemile Creek, Twin Creek, Valley

Creek, Van Horn Creek, Vat Creek,

Warm Spring Creek, Warm Springs

Creek, Washington Creek, West Beaver

Creek, West Fork Creek, West Fork East

Fork Salmon River, West Fork Herd

Creek, West Fork Morgan Creek, West

Fork Yankee Fork, West Pass Creek,

Wickiup Creek, Williams Creek, Willow

Creek, Yankee Fork.

(xxxvii) UPPER SELWAY BASIN:

Basin Creek, Bear Creek, Burn Creek,

Camp Creek, Canyon Creek, Cliff Creek,

Comb Creek, Cooper Creek, Cub Creek,

Deep Creek, Eagle Creek, Elk Creek, Fall

Creek, Fox Creek, Goat Creek, Gold Pan

Creek, Granite Creek, Grass Gulch,

Haystack Creek, Hells Half Acre Creek,

Indian Creek, Kim Creek, Lake Creek,

Langdon Gulch, Little Clearwater River,

Lodge Creek, Lunch Creek, Mist Creek,

Paloma Creek, Paradise Creek, Peach

Creek, Pettibone Creek, Running Creek,

Saddle Gulch, Schofield Creek, Selway

River (above Pettibone Creek), South

Fork Running Creek, South Fork Saddle

Gulch, South Fork Surprise Creek,

Spruce Creek, Squaw Creek, Stripe

Creek, Surprise Creek, Set Creek, Tepee

Creek, Thirteen Creek, Three Lakes

Creek, Triple Creek, Wahoo Creek,

White Cap Creek, Wilkerson Creek,

Witter Creek.

(xxxviii) WEISER BASIN: Anderson

Creek, Bull Corral Creek, Dewey Creek,

East Fork Weiser River, Little Weiser

River, above Anderson Creek, Sheep

Creek, Wolf Creek.

(3) Procedures for site specific

modification of listed waterbodies or

temperature criteria for bull trout.

(i) The Regional Administrator may,

in his discretion, determine that the

temperature criteria in paragraph (a)(1)

of this section shall not apply to a

specific waterbody or portion thereof

listed in paragraph (a)(2) of this section.

Any such determination shall be made

consistent with § 131.11 and shall be

based on a finding that bull trout

spawning and rearing is not an existing

use in such waterbody or portion

thereof.

(ii) The Regional Administrator may,

in his discretion, raise the temperature

criteria in paragraph (a)(1) of this

section as they pertain to a specific

waterbody or portion thereof listed in

paragraph (a)(2) of this section. Any

such determination shall be made

consistent with § 131.11, and shall be

based on a finding that bull trout would

be fully supported at the higher

temperature criteria.

(iii) For any determination made

under paragraphs (a)(3)(i) or (a)(3)(ii) of

this section, the Regional Administrator

shall, prior to making such a

determination, provide for public notice

of and comment on a proposed

determination. For any such proposed

determination, the Regional

Administrator shall prepare and make

available to the public a technical

support document addressing each

waterbody or portion thereof that would

be deleted or modified and the

justification for each proposed

determination. This document shall be

made available to the public not later

than the date of public notice.

(iv) The Regional Administrator shall

maintain and make available to the

public an updated list of determinations

made pursuant to paragraphs (a)(3)(i)

and (a)(3)(ii) of this section as well as

the technical support documents for

each determination.
41188 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

(v) Nothing in this paragraph (a)(3)

shall limit the Administrator’s authority

to modify the temperature criteria in

paragraph (a)(1) of this section or the list

of waterbodies in paragraph (a)(2) of this

section through rulemaking.

(b) Use designations for surface

waters. In addition to the State adoped

use designations, the following water

body segments in Idaho are designated

for cold water biota: Canyon Creek (PB

121)—below mining impact; South Fork

Coeur d’Alene River (PB 140S)—Daisy

Gulch to mouth; Shields Gulch (PB

148S)—below mining impact; Blackfoot

River (USB 360)—Equalizing Dam to

mouth, except for any portion in Indian

country; Soda Creek (BB 310)—source to

mouth.

(c) Excluded waters. Lakes, ponds,

pools, streams, and springs outside

public lands but located wholly and

entirely upon a person’s land are not

protected specifically or generally for

any beneficial use, unless such waters

are designated in Idaho 16.01.02.110.

through 160., or, although not so

designated, are waters of the United

States as defined at 40 CFR 122.2.

(d) Water quality standard variances.

(1) The Regional Administrator, EPA

Region X, is authorized to grant

variances from the water quality

standards in paragraph (b) of this

section where the requirements of this

paragraph (d) are met. A water quality

standard variance applies only to the

permittee requesting the variance and

only to the pollutant or pollutants

specified in the variance; the underlying

water quality standard otherwise

remains in effect.

(2) A water quality standard variance

shall not be granted if:

(i) Standards will be attained by

implementing effluent limitations

required under sections 301(b) and 306

of the CWA and by the permittee

implementing reasonable best

management practices for nonpoint

source control; or

(ii) The variance would likely

jeopardize the continued existence of

any threatened or endangered species

listed under section 4 of the Endangered

Species Act or result in the destruction

or adverse modification of such species’

critical habitat.

(3) Subject to paragraph (d)(2) of this

section, a water quality standards

variance may be granted if the applicant

demonstrates to EPA that attaining the

water quality standard is not feasible

because:

(i) Naturally occurring pollutant

concentrations prevent the attainment of

the use; or

(ii) Natural, ephemeral, intermittent

or low flow conditions or water levels

prevent the attainment of the use, unless

these conditions may be compensated

for by the discharge of sufficient volume

of effluent discharges without violating

State water conservation requirements

to enable uses to be met; or

(iii) Human caused conditions or

sources of pollution prevent the

attainment of the use and cannot be

remedied or would cause more

environmental damage to correct than to

leave in place; or

(iv) Dams, diversions or other types of

hydrologic modifications preclude the

attainment of the use, and it is not

feasible to restore the waterbody to its

original condition or to operate such

modification in a way which would

result in the attainment of the use; or

(v) Physical conditions related to the

natural features of the waterbody, such

as the lack of a proper substrate, cover,

flow, depth, pools, riffles, and the like

unrelated to water quality, preclude

attainment of aquatic life protection

uses; or

(vi) Controls more stringent than

those required by sections 301(b) and

306 of the CWA would result in

substantial and widespread economic

and social impact.

(4) Procedures. An applicant for a

water quality standards variance shall

submit a request to the Regional

Administrator not later than the date the

applicant applies for an NPDES permit

which would implement the variance,

except that an application may be filed

later if the need for the variance arises

or the data supporting the variance

becomes available after the NPDES

permit application is filed. The

application shall include all relevant

information showing that the

requirements for a variance have been

satisfied. The burden is on the applicant

to demonstrate to EPA’s satisfaction that

the designated use is unattainable for

one of the reasons specified in

paragraph (d)(3) of this section. If the

Regional Administrator preliminarily

determines that grounds exist for

granting a variance, he shall publish

notice of the proposed variance. Notice

of a final decision to grant a variance

shall also be published. EPA will

incorporate into the permittee’s NPDES

permit all conditions needed to

implement the variance.

(5) A variance may not exceed 5 years

or the term of the NPDES permit,

whichever is less. A variance may be

renewed if the applicant reapplies and

demonstrates that the use in question is

still not attainable. Renewal of the

variance may be denied if the applicant

did not comply with the conditions of

the original variance.

[FR Doc. 97–19797 Filed 7–30–97; 8:45 am]

BILLING CODE 6560–50–P