Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Proposed Rules 27789 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

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

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen dioxide, 

Ozone, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 10, 2007. 

William T. Wisniewski, 

Acting Regional Administrator, Region III. 

[FR Doc. E7–9519 Filed 5–16–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2007–0259; FRL–8315–3] 

Water Quality Standards for Puerto 

Rico 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing water 

quality standards that would establish 

methods to implement Puerto Rico’s 

existing antidegradation policy for 

waters in the Commonwealth of Puerto 

Rico. 

DATES: Comments must be received on 

or before June 18, 2007. 

EPA will hold a public hearing on this 

proposed rule on Monday June 4, 2007, 

from 2 p.m. to 5 p.m. and from 7 p.m. 

to 9 p.m. The public hearing will occur 

at the Universidad Metropolitana 

(UMET) Theatre, Ave. Ana G. Mendez, 

Km 0.3, Cupey, Puerto Rico 00928. If 

you need special accommodations at 

this meeting, including wheelchair 

access or sign language interpreter, you 

should contact Yasmin Laguer at 787–

997–5848 at least 10 business days prior 

to the meeting so that we can make 

appropriate arrangements. 

ADDRESSES: Submit your comments, 

identified by Docket Id. No. [EPA–HQ–

OW–2007–0259], by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: ow-docket@epa.gov. 

• Mail to either: Water Docket, 

USEPA, Mailcode: 2822T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460 or Docket Manager, Proposed 

Water Quality Standards for Puerto 

Rico, U.S. EPA Region 2, 290 Broadway, 

New York, New York 10007, Attention 

Docket ID No. OW–2007–0259. 

• Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC, 20004 or Docket Manager, Proposed 

Water Quality Standards for Puerto 

Rico, U.S. EPA Region 2, 290 Broadway, 

New York, New York 10007, Attention 

Docket ID No. OW–2007–0259. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2007–

0259. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov 

website is an ‘‘anonymous access’’

system, which means EPA will not 

know your identity or contact 

information unless you provide it in the 

body of your comment. If you send an 

e-mail comment directly to EPA without 

going through www.regulations.gov your 

e-mail address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

two Docket Facilities. The OW Docket 

Center is open from 8:30 a.m. until 4:30 

p.m, Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is (202) 566–2426 and the 

Docket address is OW Docket, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC 20004. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744. 

Publicly available docket materials are 

also available in hard copy at U.S. EPA 

Region 2, 290 Broadway, 24th Floor, 

New York, New York 10007. This 

location is open from 8:30 a.m. until 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number is (212) 637–3807. Publicly 

available docket materials will be 

viewable electronically at the Caribbean 

Environmental Protection Division, U.S. 

EPA Region 2, 1492 Ponce De Leon 

Avenue, Suite 417, Centro Europa 

Building, San Juan, Puerto Rico 00907. 

This facility is open from 9 a.m. to 3:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number is 

(787) 977–5848. 

FOR FURTHER INFORMATION CONTACT: 

Wayne Jackson, U.S. EPA Region 2, 

Division of Environmental Planning and 

Protection, 290 Broadway, New York, 

New York 10007 (telephone: 212–637–

3807 or e-mail: jackson.wayne@epa.gov) 

or Danielle Fuligni, U.S. EPA 

Headquarters, Office of Science and 

Technology, 1200 Pennsylvania 

Avenue, NW., Mail Code 4305T, 

Washington, DC 20460 (telephone: 202–

566–0793 or e-mail: 

fuligni.danielle@epa.gov). 

SUPPLEMENTARY INFORMATION: This 

section is organized as follows: 

Table of Contents 

I. General Information 

A. What Entities May be Affected by This 

Action? 

B. What Should I Consider as I Prepare my 

Comments for EPA? 

II. Background 

A. What Are the Applicable Federal 

Statutory and Regulatory Requirements? 

B. Why Is EPA Proposing Federal 

Antidegradation Implementation 

Methods for the Commonwealth of 

Puerto Rico? 

III. This Proposed Rule 

A. What Are the Proposed Antidegradation 

Implementation Methods to Protect 

Puerto Rico’s High Quality Waters? 

B. How Will Puerto Rico Implement the 

Proposed Antidegradation 

Implementation Methods? 

C. What Are the Cost Implications of the 

Proposed Rule? 

D. Request for Comment 

IV. Statutory and Executive Order Reviews 


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A. Executive Order 12866 (Regulatory 

Planning and Review) 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

Risks and Safety Risks) 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution or Use) 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations) 

K. Endangered Species Act 

I. General Information 

A. What Entities May Be Affected by 

This Action? 

Citizens concerned with water quality 

in Puerto Rico may be interested in this 

rulemaking. Today’s proposal, if made 

final, will establish Federal 

antidegradation implementation 

methods by regulation for waters in the 

Commonwealth of Puerto Rico 

(hereafter, ‘‘the Commonwealth’’ or 

‘‘Puerto Rico’’). Entities discharging 

pollutants to the surface waters of 

Puerto Rico could be indirectly affected 

by this rulemaking since water quality 

standards are used in determining 

National Pollutant Discharge 

Elimination System (NPDES) permit 

limits, CWA section 404 dredge and fill 

permits, and other activities requiring 

CWA section 401 certification. 

Categories and entities that may 

ultimately be affected include: 

Category Examples of potentially affected entities 

Industry ........................................... Industries discharging pollutants to surface waters in Puerto Rico. 

Municipalities ................................... Discharges from publicly-owned facilities such as publicly owned treatment works and water filtration facilities. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding NPDES-regulated 

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 be affected. To 

determine whether your facility may be 

affected by this action, you should 

carefully examine today’s proposed 

rule. If you have questions regarding the 

applicability of this action to the 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

i. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

ii. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

A. What Are the Applicable Federal 

Statutory and Regulatory Requirements? 

Section 303 (33 U.S.C. 1313) of the 

Clean Water Act (CWA or ‘‘the Act’’) 

directs States, Territories, and 

authorized Tribes (hereafter referred to 

as ‘‘States’’), with oversight by EPA, to 

adopt water quality standards to protect 

the public health and welfare, enhance 

the quality of water and serve the 

purposes of the CWA. Under section 

303, States are required to develop 

water quality standards for navigable 

waters of the United States within the 

State. Section 303(c) and EPA’s 

implementing regulations at 40 CFR part 

131 require State and Tribal water 

quality standards to include the 

designated use or uses to be made of the 

water, the water quality criteria 

necessary to protect those uses and an 

antidegradation policy. States are 

required to review their water quality 

standards at least once every three years 

and, if appropriate, revise or adopt new 

standards. The results of this triennial 

review must be submitted to EPA, and 

EPA must approve or disapprove any 

new or revised standards. 

Section 303(c) of the CWA authorizes 

the EPA Administrator to promulgate 

water quality standards to supersede 

State standards that EPA has 

disapproved or in any case where the 

Administrator determines that a new or 

revised standard is needed to meet the 

CWA’s requirements. In a February 14, 

2007, Opinion and Order from the 

United States District Court for the 

District of Puerto Rico in the case of 

CORALations and the American Littoral 

Society v. United States Environmental 

Protection Agency, et al. (No. 02–1266 

(JP) (D. Puerto Rico)), the Court ordered 

EPA to ‘‘prepare and publish new or 

revised water quality standards 

identifying antidegradation methods for 

Puerto Rico within 60 days’’ (April 17, 

2007). The Court has since granted 

EPA’s motion for an additional 30 days. 

EPA is, therefore, proposing Federal 

water quality standards for these waters 

in Puerto Rico. 

As one of the minimum elements that 

must be included in a State’s water 

quality standards, antidegradation is an 

important tool for States and authorized 

Tribes to use in meeting the CWA’s 

requirement that water quality 

standards protect public health or 

welfare, enhance the quality of water 

and meet the objective of the CWA to 

restore and maintain the chemical, 

physical and biological integrity of the 


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nation’s waters. Antidegradation 

requirements help ensure that any 

degradation in water quality is subject 

to review and approval by the State 

even in cases where the existing water 

quality far exceeds the water quality 

criteria and designated use applicable to 

individual waters. 

EPA’s regulation at 40 CFR 131.12 

requires that States and authorized 

Tribes adopt antidegradation policies 

and identify implementation methods to 

provide three levels or tiers of water 

quality protection. The first level of 

protection at 40 CFR 131.12(a)(1), also 

known as Tier 1 of antidegradation, 

requires the maintenance and protection 

of existing instream water uses and the 

level of water quality necessary to 

protect those existing uses. Protection of 

existing uses is the floor of water quality 

protection afforded to all waters of the 

United States. Existing uses are ‘‘* * * 

those uses actually attained in the water 

body on or after November 28, 1975, 

whether or not they are included in the 

water quality standards.’’ (40 CFR 

131.3(e)) 

The second level of protection, or Tier 

2 of antidegradation, is for high quality 

waters. High quality waters are defined 

in 40 CFR 131.12(a)(2) as waters where 

the quality of the waters is better than 

the levels necessary to support 

propagation of fish, shellfish, and 

wildlife and recreation in and on the 

water. This water quality is to be 

maintained and protected unless the 

State or authorized Tribe finds, after 

public participation and 

intergovernmental review, that allowing 

lower water quality is necessary to 

accommodate important economic or 

social development in the area in which 

the waters are located. In allowing lower 

water quality, the State or authorized 

Tribe must assure water quality 

adequate to protect existing uses. 

Further, the State or authorized Tribe 

must ensure that all applicable statutory 

and regulatory requirements are 

achieved for all new and existing point 

sources and all cost-effective and 

reasonable best management practices 

are achieved for nonpoint source 

control. 

Finally, the third and highest level of 

antidegradation protection, or Tier 3, is 

for outstanding national resource waters 

(ONRWs). If a State or authorized Tribe 

determines that the characteristics of a 

water body constitute an outstanding 

national resource, such as waters of 

National and State parks and wildlife 

refuges and waters of exceptional 

recreational or ecological significance, 

and designates a water body as such, 

then that water quality must be 

maintained and protected (see 40 CFR 

131.12(a)(3)). 

In addition to requiring States and 

authorized Tribes to adopt an 

antidegradation policy, 40 CFR 131.12 

requires States to identify methods for 

implementing such a policy. Such 

methods are not required to be 

contained in the State’s regulation, but 

because they inform EPA’s judgment 

regarding whether the State’s 

antidegradation policy is consistent 

with the Federal regulations at 40 CFR 

131.12, they are subject to EPA review. 

Where the State chooses to make such 

methods part of its water quality 

standards regulations, section 303(c)(3) 

of the CWA and EPA’s implementing 

regulations require them to be submitted 

to EPA for review and approval. When 

a State or authorized Tribe chooses to 

develop such methods as guidance or 

outside of regulation, EPA reviews the 

methods in the context of determining 

whether the State’s antidegradation 

policy as interpreted and implemented 

through the methods, is consistent with 

40 CFR 131.12. 

EPA’s regulations at 40 CFR 131.12 

provide a great deal of discretion to 

States regarding the amount of 

specificity required in a State’s 

antidegradation implementation 

methods. The regulations do not specify 

minimum elements for such methods, 

but do require that such methods not 

undermine the intent of the 

antidegradation policy. See Advanced 

Notice of Proposed Rulemaking, 63 FR 

36742, 36781, July 7, 1998. 

B. Why Is EPA Proposing Federal 

Antidegradation Implementation 

Methods for the Commonwealth of 

Puerto Rico? 

Puerto Rico has an existing EPAapproved antidegradation policy, which 

was adopted on October 27, 1990 and 

approved by EPA on March 28, 2002. 

This antidegradation policy mirrors that 

of the federal regulation. The policy 

states the following: 

It is the policy of the Government of Puerto 

Rico to conserve and protect the existing uses 

of the Waters of Puerto Rico. The water 

quality necessary to protect the existing uses, 

including threatened and endangered species 

shall be maintained and protected. 

In those water bodies where the quality 

exceeds levels necessary to support 

propagation of fish, shellfish, wildlife, 

desirable species including threatened or 

endangered species and recreation in and on 

the water, that quality shall be maintained 

and protected. A lower water quality may be 

allowed when the EQB finds, after full 

satisfaction of the intergovernmental 

coordination and public participation 

provisions of the Board’s Continuing 

Planning Process that allowing lower water 

quality is necessary to accommodate 

important economic or social development in 

the area where the waters are located. In 

allowing such lower water quality, the Board 

shall require a water quality level adequate 

to protect existing uses fully. Further, the 

Board will require that: 

(1) The highest statutory and regulatory 

requirements for all new and/or existing 

point sources be achieved and 

(2) All cost-effective and reasonable best 

management practices for non-point source 

control be implemented. 

Where high quality waters constitute an 

outstanding national resource, such as waters 

of El Yunque National Forest and State parks, 

wildlife refuges and waters of exceptional 

recreational or ecological significance, that 

water quality shall be maintained and 

protected. 

Where potential water quality impairment 

is associated with a thermal discharge, this 

thermal discharge must comply with Section 

316 of the Clean Water Act as amended. 

The Environmental Quality Board of 

the Commonwealth of Puerto Rico (EQB 

or Board) first adopted an 

antidegradation policy in its water 

quality standards regulation in June 

1973. EQB is responsible, in part, for 

developing and recommending to the 

Governor public policy to encourage 

and promote the improvement of 

environmental quality so as to meet the 

conservation, social, economic, health 

and other requirements and goals of the 

Commonwealth. One of the specific 

functions of EQB is to develop and 

adopt water quality standards, which 

are intended to ‘‘enhance, maintain and 

preserve the quality of the waters of 

Puerto Rico compatible with the social 

and economic needs of Puerto Rico.’’

This antidegradation policy was 

approved by EPA on November 15, 

1973. Puerto Rico’s antidegradation 

policy statement remained unchanged 

until 1990. In August 1990, the 

Commonwealth of Puerto Rico adopted 

revisions to the Puerto Rico Water 

Quality Standards Regulation 

(PRWQSR). These were sent to EPA 

Region 2 on September 21, 1990, with 

the caveat from the Chairman of the 

EQB that the transmittal may not be the 

final submittal, since EQB was going to 

hold additional public hearings on 

November 1, 1990 regarding certain 

aspects of the revisions. Because of this 

caveat, and because the requisite 

certification from the Commonwealth’s 

Secretary of Justice was not submitted 

with the revisions as required by 40 CFR 

131.6(e), EPA did not act on these 

revisions immediately. 

From 1991 to 1993, EPA Region 2 

worked with EQB on a series of 

subsequent draft revisions to the 

PRWQSR. These drafts were never 

adopted by Puerto Rico. 


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The requisite certification from the 

Commonwealth’s Secretary of Justice 

was ultimately submitted to EPA on 

February 25, 2002. Upon receipt of this 

certification EPA took final action on all 

new and revised provisions of the 1990 

PRWQSR on March 28, 2002. These 

revisions included the above-referenced 

revisions to the Puerto Rico 

antidegradation policy. 

Prior to October 2001, Puerto Rico 

had antidegradation implementation 

methods set forth in a document known 

as its Continuing Planning Process 

(CPP). In the fall of 2001, EPA 

commenced work with the Puerto Rico 

EQB to enhance their antidegradation 

implementation methods. EQB 

submitted its first reasonably complete 

draft of its consolidation of 

antidegradation implementation 

methods on September 3, 2003. 

On February 20, 2002, CORALations, 

American Littoral Society, and the 

American Canoe Association filed a 

complaint in the U.S. District Court for 

the District of Puerto Rico. In this 

action, the plaintiffs alleged, among 

other things, that a September 4, 1992 

letter from a EPA Region 2 Division 

Director to the EQB had triggered a 

mandatory duty under section 303(c)(4) 

of the CWA for EPA to prepare and 

propose regulations for Puerto Rico 

setting forth a revised water quality 

standard for antidegradation 

implementation methods. 

In October and December 2003, EQB 

submitted two revised drafts of its 

consolidation of antidegradation 

implementation methods. The 

December 2003 draft was submitted 

under cover of a letter dated December 

16, 2003 from Ruben Gonzalez Delgado, 

Director of EQB’s Water Quality Area, to 

Walter Mugdan, Director of the EPA 

Region 2’s Division of Environmental 

Planning and Protection. This letter 

stated that it was EQB’s intent to 

promulgate this consolidation as part of 

the PRWQSR in order to consolidate 

EQB’s existing antidegradation 

implementation methods ‘‘either 

explicitly or by reference, into one 

document so that it is readily accessible 

to the public and the regulated 

community.’’

On June 17, 2004, EQB submitted to 

EPA its final revised consolidation 

document. This consolidation 

document, however, was not adopted as 

a regulation. In a letter dated July 9, 

2004, from Mr. Mugdan to EQB’s 

President, Esteban Mujica Cotto, EPA 

stated that these methods meet the 

requirements of the Clean Water Act 

and 40 CFR 131.12(a). 

On February 14, 2007, the U.S. 

District Court of Puerto Rico issued an 

opinion ruling that EPA had failed to 

execute a mandatory duty to propose 

antidegradation implementation 

methods for Puerto Rico and ordered 

EPA to prepare and publish new or 

revised water quality standards 

identifying antidegradation 

implementation methods for Puerto 

Rico within 60 days. The court has since 

granted a 30-day extension. 

III. This Proposed Rule 

EPA is proposing federal water 

quality standards identifying methods 

for implementing Puerto Rico’s 

antidegradation policy. Consistent with 

section 303(c)(4) of the CWA, if during 

the Federal rulemaking process, Puerto 

Rico incorporates into Commonwealth 

regulation its own antidegradation 

implementation methods and EPA 

approves Puerto Rico’s action, EPA 

would not finalize this proposal. In 

addition, if Puerto Rico incorporates 

into Commonwealth regulation its own 

antidegradation implementation 

methods following publication of a final 

Federal rule, EPA would withdraw its 

rule. 

A. What Are the Proposed 

Antidegradation Implementation 

Methods To Protect Puerto Rico’s High 

Quality Waters? 

These proposed antidegradation 

implementation methods are the same 

as the implementation methods Puerto 

Rico provided to EPA in 2004. EPA 

reviewed those and on July 9, 2004, sent 

a letter from Walter Mugdan, Director of 

EPA Region 2’s Division of 

Environmental Planning and Protection 

Division to Esteban Mujica Cotto, 

President of Puerto Rico’s 

Environmental Quality Board stating 

that these methods meet the 

requirements of 40 CFR 131.12(a). (It 

should be noted that subsequent to the 

issuance of EPA’s July 9, 2004 letter, 

EQB incorporated some non-substantive 

updates to its consolidation of 

implementation methods. The purpose 

of these updates is to reflect the fact that 

the Puerto Rico Environmental Public 

Policy Act (12 LPRA 8001 et seq.), 

which is one of the referenced 

documents in the consolidation 

document, was amended and re-issued 

on September 22, 2004. The June 17, 

2004 version of the consolidation 

document had referenced the previously 

applicable version of the Puerto Rico 

Environmental Public Policy Act. The 

proposed methods reflect this update). 

Consistent with Puerto Rico’s 

antidegradation implementation 

methods, the proposed methods provide 

that all point sources would be subject 

to antidegradation review. The CWA 

and EPA’s regulations leave to the States 

and authorized Tribes the decision 

whether to regulate nonpoint sources by 

requiring that they undergo 

antidegradation review. American 

Wildlands v. Browner, 260 F.3d 1192, 

1198 (10th Cir. 2001). To date, Puerto 

Rico has not chosen to subject nonpoint 

sources to antidegradation review. As a 

result, EPA is not proposing to apply 

Puerto Rico’s methods to sources other 

than point sources. 

In addition, as envisioned by Puerto 

Rico, the proposed methods provide 

that the antidegradation review would 

occur as part of Puerto Rico’s CWA 

section 401 certification process. EPA 

issues all of the National Pollutant 

Discharge Elimination System (NPDES) 

permits under CWA section 402 for the 

Commonwealth of Puerto Rico. As part 

of this process, Puerto Rico must certify 

under CWA section 401 that those 

permits comply with Puerto Rico’s 

water quality requirements. Conducting 

the antidegradation review process 

during this certification is a logical time 

for this review to occur, since this is the 

time when EQB conducts its formal 

analysis to determine, in part, if a 

proposed action will comply with all 

aspects of the Puerto Rico Water Quality 

Standards Regulation (PRWQSR). 

To implement Tier 1, it is important 

to explain what is meant by the term 

‘‘existing in-stream water use’’ (40 CFR 

131.12 (a)(1)) and explain how the level 

of water quality will be identified that 

is required to allow an existing use to 

continue to occur. Section 131.3 of the 

federal regulations defines existing uses 

as ‘‘those uses actually attained in the 

water body on or after November 28, 

1975 * * * ’’. The proposed methods 

provide that where there are 

concentrations or levels of a particular 

pollutant that have caused a waterbody 

to be listed as impaired under section 

303(d) of the CWA, no additional 

degradation may occur in the 

waterbody. Puerto Rico’s methods 

provide that this would be assured 

through water quality-based effluent 

limits meeting water quality criteria 

‘‘end-of-pipe’’. EPA believes this 

approach will protect the quality of 

water in the waterbody from further 

degradation, which will lead to the 

protection of the existing uses. 

EPA has articulated that states may 

take one of two approaches in 

identifying their high quality waters, 

also known as Tier 2 of antidegradation: 

a parameter-by-parameter approach or a 

waterbody-by-waterbody approach. 

Under the parameter-by-parameter 

approach, States and authorized Tribes 

determine whether water quality is 

better than the applicable criteria for a 


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specific parameter or pollutant that 

would be affected by a new discharge or 

an increase in an existing discharge of 

the pollutant. The water body-by-water 

body approach weighs the chemical, 

physical, biological, or other factors to 

judge a water body’s overall quality. In 

EPA’s Advanced Notice of Proposed 

Rulemaking (ANPRM), EPA discussed 

the advantages and disadvantages to 

both approaches to designating high 

quality waters. 63 FR 36782, 36783, July 

7, 1998. EPA also discussed these issues 

in the preamble to its proposed rule 

regarding antidegradation 

implementation methods for Kentucky. 

67 FR 68971, 67798–99, November 14, 

2002. EPA interprets its regulation to 

authorize either approach. Consistent 

with the implementation methods 

identified by Puerto Rico, EPA is today 

proposing that antidegradation reviews 

for high quality waters in Puerto Rico 

occur on a parameter-by-parameter 

basis. 

Under the proposed methods, Puerto 

Rico would implement protection of 

waters it identifies as ONRWs, also 

known as Tier 3 of antidegradation, 

through a requirement that prohibits 

point source discharges in ONRWs. As 

described earlier in this section, the 

proposed methods mirror those methods 

already identified by Puerto Rico for 

implementing its antidegradation 

implementation policy. EPA believes 

this approach is more than sufficient to 

meet the federal requirements at 40 CFR 

131.12(a)(3) to maintain and protect the 

water quality of waters identified as 

ONRWs and is consistent with Puerto 

Rico’s preferred approach. 

Consistent with the antidegradation 

methods identified by Puerto Rico, the 

proposed rule includes methods for 

implementing Puerto Rico’s 

antidegradation policy for permits 

issued under section 404 of the CWA or 

permits issued under section 10 of the 

River and Harbors Act. The proposed 

methods would require that the 

discharge of dredged or fill material not 

have an unacceptable adverse impact 

either individually or in combination 

with other activities affecting the 

wetland before they can be allowed to 

discharge. Further, the proposed 

methods provide that any proposed 

discharge will not be allowed if there is 

a practicable alternative that would 

have less adverse impact. With regard to 

how the permits for these types of 

activities would be implemented in 

waters identified by Puerto Rico as 

ONRWs, the proposed methods provide 

that any proposed permitted activity 

under these sections of the statutes be 

treated the same as NPDES-permitted 

dischargers, that is, that these types of 

activities will be prohibited. This 

approach, also contained in Puerto 

Rico’s methods, would assure that the 

water quality in waters identified as 

ONRWs be maintained and protected. 

B. How Will Puerto Rico Implement the 

Proposed Antidegradation 

Implementation Methods? 

Puerto Rico will implement the 

proposed antidegradation 

implementation methods through its 

ongoing CWA section 401 certification 

process. As described earlier in Section 

III.A., EPA Region 2 issues the NPDES 

permits for the Commonwealth of 

Puerto Rico. The permit issuance and 

preparation of the water quality 

certification occurs sequentially as 

described below. 

Section 6.11 of the PRWQSR 

describes how the EQB will issue CWA 

section 401 Water Quality Certifications 

(WQC) for federally-issued permits, 

such as NPDES permits. This provision 

provides, in part, that when requesting 

a WQC, an applicant must submit, as 

part of the application, all relevant 

information to demonstrate to the 

satisfaction of the Board that the 

proposed action will not cause a 

violation of any applicable water quality 

standards in the receiving water body. 

Puerto Rico’s requirements for 

conducting CWA section 401 

certifications, which include 

antidegradation reviews, are found in 

Resolution R–89–2–2 of the Governing 

Board of EQB—February 2, 1989, and 

are summarized as follows. 

1. EPA Region 2 (the Region) receives 

an application from a discharger for a 

NPDES permit, or for the renewal or 

modification of an existing NPDES 

permit. The applicant also submits a 

copy of the application to the EQB. 

2. The Region reviews the application, 

and, if necessary, obtains additional 

information from the applicant. After all 

information is submitted, and EPA 

completes its review, EPA solicits 

certification from EQB in accordance 

with 40 CFR Part 124. 

3. EQB evaluates the application/draft 

permit and issues or denies a 401 

certification, or waives the right. (EQB 

will not waive the right when an initial 

environmental assessment indicates that 

the discharge for which a permit is 

sought will have a significant impact on 

the environment, triggering the need for 

an antidegradation review.) In summary, 

if EQB plans to certify the discharge, an 

intent to issue a WQC will be prepared. 

If EQB plans to deny the certification, 

an intent to deny a WQC will be 

prepared, including the basis of the 

determination that the discharge will 

not comply with applicable water 

quality standards. A copy of the intent 

to issue or deny a WQC, whichever the 

case, will be sent to EPA and the 

petitioner. A public notice and 

comment period follows. EQB then 

decides to issue the WQC or denial. 

Petitioners have the ability to seek 

reconsideration before the WQC 

decision becomes final. 

4. In conducting an antidegradation 

review as part of the CWA section 401 

certification process, EQB first 

determines which level of 

antidegradation applies based upon a 

review of existing water quality data, 

and other required information, to be 

provided by the applicant. Based upon 

this review, EQB then determines if 

additional information is necessary in 

order to make a determination. In the 

case of Tier I waters, a determination is 

made as to whether a discharge would 

lower water quality such that it would 

no longer be sufficient to protect and 

maintain the existing and designated 

uses of that water body. When the 

assimilative capacity of a water body is 

determined to be insufficient to protect 

existing and designated uses with an 

additional load to the water body, EQB 

does not allow a discharge increase by 

requiring that the applicable water 

quality standards be met at the end of 

the pipe. In order to allow the lowering 

of water quality in Tier 2 waters, EQB 

evaluates the existing and protected 

quality of the receiving water on a 

parameter-by-parameter basis. In those 

cases where a potential increase in 

loading from a discharge may result in 

the lowering of water quality, the 

applicant must show and justify the 

necessity for such lowering of water 

quality. As part of the Tier 2 

antidegradation review process, EQB 

provides a public comment period of at 

least 30 days. In the case of Tier 3 

waters, no point source discharge will 

be allowed. 

5. If EQB issues a 401 certification, 

then EPA Region 2 incorporates the 

WQC into the draft permit and issues 

public notice of its intention to issue a 

final permit pursuant to 40 CFR Part 

122. 

C. What Are the Cost Implications of the 

Proposed Rule? 

Puerto Rico’s existing antidegradation 

implementation methods are the same 

as the antidegradation methods set forth 

in this proposed rule. Thus, while not 

in regulation, the proposed 

implementation methods are already in 

place in Puerto Rico and as such, EPA’s 

proposed antidegradation methods are 

not expected to result in any additional 

monetary costs. Nonetheless, EPA 

prepared an analysis to evaluate 


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potential impacts to the Commonwealth 

of Puerto Rico associated with future 

implementation of EPA’s Federal 

standards. This analysis is documented 

in the ‘‘Economics Analysis of Proposed 

Antidegradation Implementation 

Methods for the Commonwealth of 

Puerto Rico,’’ which can be found in the 

record for this rulemaking and 

concludes that the total annualized 

costs of EPA’s proposed rule for both 

the Commonwealth and the point 

source dischargers could range from 

$14,500 to $32,900. 

Any NPDES-permitted facility that 

discharges to water bodies affected by 

this proposed rule could potentially 

incur costs to comply with the rule’s 

provisions. The types of affected 

facilities may include industrial 

facilities and publicly owned treatment 

works (POTWs). EPA did not consider 

the potential costs for nonpoint sources, 

such as agricultural and forestry-related 

nonpoint sources, because EPA’s 

proposed rule would only require that 

antidegradation be applied to point 

sources. In addition, EPA did not 

address the potential monetary benefits 

of this proposed rule for Puerto Rico. 

1. Identifying Affected Entities 

EPA identified approximately 265 

point source facilities that may be 

affected by the rule. Of these potentially 

affected facilities, 76 are classified as 

major dischargers, and 189 are minor 

dischargers. 

Exhibit 1 provides a summary of 

facilities that are currently permitted to 

discharge to Puerto Rico surface waters, 

as identified in EPA’s Permit 

Compliance System (PCS). There are a 

total of 265 facilities, 71 percent of 

which are minor dischargers. 

EXHIBIT 1.—POTENTIALLY AFFECTED INDIVIDUAL NPDES PERMITTED DISCHARGERS IN PUERTO RICO

Facility type 

Number of facilities 

Majors 1 Minors 2 Total 

Municipal ...................................................................................................................................... 36 33 69 

Industrial ...................................................................................................................................... 40 156 196 

Total ...................................................................................................................................... 76 189 265 

Sources: U.S. EPA (2007) and U.S. EPA Region 2 (2007). 

1 Major dischargers are facilities discharging greater than 1 million gallons per day (mgd) and likely to discharge toxic pollutants in toxic 

amounts. 2 Minor dischargers are defined as facilities discharging less than 1 million gallons per day (mgd) and not likely to discharge toxic pollutants in 

toxic amounts. 

In the case of Tier 1 waters, EQB 

would make a determination as to 

whether a discharge would lower water 

quality such that it would no longer be 

sufficient to protect and maintain the 

existing and designated uses of that 

water body. For Tier 2 waters, EQB 

would evaluate the existing and 

protected quality of the receiving water 

on a parameter-by-parameter basis. 

Under this approach, EQB would 

determine whether water quality is 

better than the applicable criteria for a 

specific parameter or pollutant that 

would be affected by a new discharge or 

an increase in an existing discharge of 

the pollutant. In addition, no point 

source discharges would be allowed to 

Tier 3 waters. 

2. Method for Estimating Potential 

Compliance Costs 

EPA Region 2 indicates that is has 

received five antidegradation review 

requests within the last five years, or 

approximately one request per year. 

This includes antidegradation reviews 

for both existing and new facilities. EPA 

assumed that each type of facility (e.g., 

major municipal, minor municipal, 

major industrial, and minor industrial) 

is equally likely to request an 

antidegradation review. 

Costs for the proposed 

antidegradation implementation 

methods include costs to facilities for 

preparing the review material and 

necessary data, and costs associated 

with the Commonwealth’s review of the 

facility information and certification 

process. The cost incurred by facilities 

represents the cost of a preliminary 

engineering analysis and the subsequent 

financial analysis for which EPA 

provides guidance and a workbook. This 

analysis could cost between one percent 

and three percent of the installed cost of 

additional pollution controls. 

The cost potentially incurred by 

Puerto Rico’s Environmental Quality 

Board (EQB) represents the cost of 

reviewing the engineering cost analysis 

and financial impact analysis, validating 

source data and checking calculations, 

evaluating the engineering design and 

the conclusions regarding potential 

financial and community impacts, 

evaluating the information provided 

regarding the importance of the 

proposed development to the economic 

and social conditions of the affected 

community, and reviewing and 

responding to comments from the 

public. EPA estimated the total time 

requirement to process each request to 

be 140 hours. 

3. Results 

Based on the potential number of 

antidegradation requests, EPA estimated 

that point source dischargers may incur 

total annual costs from $9,200 to 

$27,600 per year. EPA also estimated 

that Puerto Rico’s EQB may incur 

annual costs to review the requests of 

approximately $5,300. Thus, total 

annual costs of the proposed rule could 

be $14,500 to $32,900. 

D. Request for Comment 

EPA solicits comment on the 

antidegradation methods it is proposing. 

The Agency will evaluate any 

comments, data and information 

submitted to EPA by the close of the 

public comment period. After full 

consideration of such comments, data, 

and information, EPA will make a final 

decision on the appropriateness of the 

antidegradation methods it is proposing. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866 (Regulatory 

Planning and Review) 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. 

Puerto Rico is already implementing 

the antidegradation methods set forth in 

this proposed rule. Therefore, these 

EPA-proposed methods are not expected 

to result in any additional monetary 

costs. However, EPA has prepared an 

analysis of the costs and benefits of the 

Puerto Rico antidegradation policy and 


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methods. This analysis is contained in 

the ‘‘Economic Analysis of Proposed 

Antidegradation Implementation 

Methods for the Commonwealth of 

Puerto Rico’’. A copy of the analysis is 

available in the docket for this action 

and is briefly summarized in Section IV. 

of today’s notice. 

B. Paperwork Reduction Act 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995. It does not include any 

information collection, reporting or 

recordkeeping requirements. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering these economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. Puerto Rico’s existing 

antidegradation implementation 

methods are the same as the 

antidegradation implementation 

methods set forth in this proposed rule. 

Thus, while not in regulation, the 

proposed implementation methods are 

already in place in Puerto Rico and, as 

a result, the proposed implementation 

methods are not expected to result in 

any additional monetary costs. 

Nonetheless, EPA prepared an analysis 

to evaluate potential impacts to the 

Commonwealth of Puerto Rico 

associated with future implementation 

of EPA’s Federal standards. This 

analysis is documented in the 

‘‘Economic Analysis of Proposed 

Antidegradation Implementation 

Methods for the Commonwealth of 

Puerto Rico,’’ which can be found in the 

record for this rulemaking. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

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 costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this 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. 

Therefore, this rule is not subject to the 

requirements of sections 202 and 205 of 

the Unfunded Mandates Reform Act. 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. Thus, this rule is 

not subject to the requirements of 

section 203 of the Unfunded Mandates 

Reform Act. 

E. Executive Order 13132 (Federalism) 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule would not affect 

the nature of the relationship between 

EPA and States generally, for the rule 

would only apply to waters within 

Puerto Rico’s jurisdiction. Further the 

proposed rule would not substantially 

affect the relationship of EPA and the 

Commonwealth of Puerto Rico, or the 

distribution of power or responsibilities 

between EPA and the various levels of 

government. Because Puerto Rico is 

already implementing these proposed 

antidegradation methods, this proposed 

rule would not change the 

Commonwealth’s ability to implement 

these methods. Further, this proposed 

rule would not preclude Puerto Rico 

from adopting its own antidegradation 

methods that meet the requirements of 

the CWA into its own regulations. Thus, 

Executive Order 13132 does not apply 

to this rule. 

Although section 6 of Executive Order 

13132 does not apply to this proposed 


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rule, EPA did consult with the 

Commonwealth of Puerto Rico in 

developing this proposed rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175, because no 

Indian Tribal Governments exist in 

Puerto Rico. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This proposed rule is not subject to 

the Executive Order because it is not 

economically significant and EPA does 

not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This proposed rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The antidegradation 

implementation methods set forth in 

this proposed rule are the same as the 

implementation methods Puerto Rico 

provided to EPA in 2004, which Puerto 

Rico is already implementing. 

K. Endangered Species Act 

EPA is transmitting this proposed rule 

to the FWS and NMFS for review and 

comment concurrent with the 

publication of today’s notice. That 

transmittal constitutes EPA’s initiation 

of informal consultation with the 

Services on this rulemaking, pursuant to 

section 7 of the Endangered Species Act 

and its implementing regulations. EPA 

will continue to work closely with the 

Services to ensure that the final rule 

will not adversely affect or jeopardize 

the continued existence of threatened or 

endangered species or their critical 

habitat. 

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Antidegradation, Water quality 

standards. 

Dated: May 10, 2007. 

Stephen L. Johnson, 

Administrator. 

For the reasons set forth in the 

preamble, EPA proposes to amend 40 

CFR part 131 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 131.42 is added to read as 

follows: 

§ 131.42 Antidegradation Implementation 

Methods for the Commonwealth of Puerto 

Rico. 

(a) General Policy Statement. (1) All 

point sources of pollution are subject to 

an antidegradation review. 

(2) An antidegradation review shall be 

initiated as part of the Section 401—

‘‘Water Quality Certification Process’’ of 

the Clean Water Act. 

(3) The 401 Certification Process shall 

follow the procedures established by the 

February 2, 1989 Resolution R–89–2–2 

of the Governing Board of the Puerto 

Rico Environmental Quality Board 

(EQB). 

(4) The following are not subject to an 

antidegradation review due to the fact 

that they are non discharge systems and 

are managed by specific applicable 

Puerto Rico regulations: 

(i) All nonpoint sources of pollutants. 

(ii) Underground Storage Tanks. 

(iii) Underground Injection Facilities. 

(5) The protection of water quality 

shall include the maintenance, 

migration, protection, and propagation 

of desirable species, including 

threatened and endangered species 

identified in the local and federal 

regulations. 

(b) Definitions. (1) All the definitions 

included in Article 1 of the Puerto Rico 

Water Quality Standards Regulation 

(PRWQSR), as amended, are applicable 

to this procedure. 

(2) High Quality Waters: 

(i) Are waters whose quality is better 

than the mandatory minimum level to 


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support the CWA Section 101(a)(2) goals 

of propagation of fish, shellfish, wildlife 

and recreation in and on the waters. 

High Quality Waters are to be identified 

by EQB on a parameter-by-parameter 

basis. 

(ii) [Reserved]. 

(3) Outstanding National Resources 

Waters (ONRW): 

(i) Are waters classified as SA or SE 

in the PRWQSR, as amended, or any 

other water designated by Resolution of 

the Governing Board of EQB. ONRWs 

are waters that are recreationally or 

ecologically important, unique or 

sensitive. 

(ii) [Reserved]. 

(c) Antidegradation Review 

Procedure. (1) The antidegradation 

review will commence with the 

submission of the CWA Section 401 

water quality certification request. EQB 

uses a parameter-by-parameter approach 

for the implementation of the antidegradation policy and will review each 

parameter separately as it evaluates the 

request for certification. The 401 

certification/antidegradation review 

shall comply with Article 4(B)(3) of the 

Puerto Rico Environmental Public 

Policy Act, (Law No. 416 of September 

22, 2004, as amended (12 LPRA 8001 et 

seq.). Compliance with Article 4(B)(3) 

shall be conducted in accordance with 

the Reglamento de la Junta de Calidad 

Ambiental para el Proceso de 

Presentacio ́n, Evaluacio ́n y Tra ́mite de 

Documentos Ambientales (EQB’s 

Environmental Documents Regulation). 

As part of the evaluation of the 

Environmental Document an 

alternatives analysis shall be conducted 

(12 LPRA 8001(a)(5), EQB’s 

Environmental Documents Regulation, 

e.g., Rules 211E and 253C), and a public 

participation period and a public 

hearing shall be provided (12 LPRA 

8001(a), EQB’s Environmental 

Documents Regulation, Rule 254). 

(2) In conducting an antidegradation 

review, EQB will sequentially apply the 

following steps: 

(i) Determine which level of 

antidegradation applies: 

(A) Tier 1—Protection of Existing and 

Designated Uses. 

(B) Tier 2—Protection of High Quality 

Waters. 

(C) Tier 3—Protection of ONRWs. 

(ii) [Reserved]. 

(3) Review existing water quality data 

and other information submitted by the 

applicant. The applicant shall provide 

EQB with the information regarding the 

discharge, as required by the PRWQSR 

including, but not limited to the 

following: 

(i) A description of the nature of the 

pollutants to be discharged. 

(ii) Treatment technologies applied to 

the pollutants to be discharged. 

(iii) Nature of the applicant’s 

business. 

(iv) Daily maximum and average flow 

to be discharged. 

(v) Effluent characterization. 

(vi) Effluent limitations requested to 

be applied to the discharge according to 

Section 6.11 of the PRWQSR. 

(vii) Location of the point of 

discharge. 

(viii) Receiving waterbody name. 

(ix) Water quality data of the receiving 

waterbody. 

(x) Receiving waterbody minimum 

flow (7Q2 and 7Q10) for stream waters. 

(xi) Location of water intakes within 

the waterbody. 

(xii) In the event that the proposed 

discharge will result in the lowering of 

water quality, data and information 

demonstrating that the discharge is 

necessary to accommodate important 

economic or social development in the 

area where the receiving waters are 

located. 

(4) Determine if additional 

information or assessment is necessary 

to make the decision. 

(5) Prepare an intent to issue or deny 

the 401 water quality certificate and 

publishes a notice in a newspaper of 

wide circulation in Puerto Rico 

informing the public of EQB’s 

preliminary decision and granting a 

public participation period of at least 

thirty (30) days. 

(6) Address the comments received 

from the interested parties and consider 

such comments as part of the decision 

making process. 

(7) Make the final determination to 

issue or deny the requested 401 

certification. Such decision is subject to 

the reconsideration procedure 

established in Law 170 of August 12, 

1988, Ley de Procedimiento 

Administrativo Uniforme del Estado 

Libre Asociado de Puerto Rico (3 LPRA 

2165). 

(d) Implementation Procedures. (1) 

Activities Regulated by NPDES Permits 

(i) Tier 1—Protection of Existing and 

Designated Uses: 

(A) Tier 1 waters are: 

(1) Those waters of Puerto Rico 

(except Tier 2 or Tier 3 waters) 

identified as impaired and that have 

been included on the list required by 

Section 303(d) of the CWA; and 

(2) Those waters of Puerto Rico 

(except Tier 2 and Tier 3 waters) for 

which attainment of applicable water 

quality standards has been or is 

expected to be, achieved through 

implementation of effluent limitations 

more stringent than technology-based 

controls (Best Practicable Technology, 

Best Available Technology and 

Secondary Treatment). 

(B) To implement Tier 1 

antidegradation, EQB shall determine if 

a discharge would lower the water 

quality to the extent that it would no 

longer be sufficient to protect and 

maintain the existing and designated 

uses of that waterbody. 

(C) When a waterbody has been 

affected by a parameter of concern 

causing it to be included on the 303(d) 

List, then EQB will not allow an 

increase of the concentration of the 

parameter of concern or pollutants 

affecting the parameter of concern in the 

waterbody. This no increase will be 

achieved by meeting the applicable 

water quality standards at the end of the 

pipe. Until such time that a Total 

Maximum Daily Load (TMDL) is 

developed for the parameter of concern 

for the waterbody, no discharge will be 

allowed to cause or contribute to further 

degradation of the waterbody. 

(D) When the assimilative capacity of 

a waterbody is not sufficient to ensure 

maintenance of the water quality 

standard for a parameter of concern 

with an additional load to the 

waterbody, EQB will not allow an 

increase of the concentration of the 

parameter of concern or pollutants 

affecting the parameter of concern in the 

waterbody. This no increase will be 

achieved by meeting the applicable 

water quality standards at the end of the 

pipe. Until such time that a TMDL is 

developed for the parameter of concern 

for the waterbody, no discharge will be 

allowed to cause or contribute to further 

degradation of the waterbody. 

(ii) Tier 2—Protection of High Quality 

Waters: 

(A) To verify that a waterbody is a 

high quality water for a parameter of 

concern which initiates a Tier 2 

antidegradation review, EQB shall 

evaluate and determine: 

(1) The existing water quality of the 

waterbody; 

(2) The projected water quality of the 

waterbody pursuant to the procedures 

established in the applicable provisions 

of Articles 5 and 10 of the PRWQSR 

including but not limited to, Sections 

5.2, 5.3, 5.4, 10.2, 10.3, 10.4, 10.5, and 

10.6; 

(3) That the existing and designated 

uses of the waterbody will be fully 

maintained and protected in the event 

of a lowering of water quality. 

In multiple discharge situations, the 

effects of all discharges shall be 

evaluated through a waste load 

allocation analysis in accordance with 

the applicable provisions of Article 10 

of the PRWQSR or the applicable 


jlentini on PROD1PC65 with PROPOSALS
27798 Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Proposed Rules 

provisions of Article 5 regarding mixing 

zones. 

(B) In order to allow the lowering of 

water quality in high quality waters, the 

applicant must show and justify the 

necessity for such lowering of water 

quality through compliance with the 

requirements of Section 6.11 of the 

PRWQSR. EQB will not allow the entire 

assimilative capacity of a waterbody for 

a parameter of concern to be allocated 

to a discharger, if the necessity of the 

requested effluent limitation for the 

parameter of concern is not 

demonstrated to the full satisfaction of 

EQB. 

(iii) Tier 3—Protection of ONRWs: 

(A) EQB may designate a water as 

Class SA or SE (ONRWs) through a 

Resolution (PRWQSR Sections 2.1.1 and 

2.2.1). Additionally, any interested 

party may nominate a specific water to 

be classified as an ONRW and the 

Governing Board of EQB will make the 

final determination. Classifying a water 

as an ONRW may result in the water 

being named in either Section 2.1.1 or 

2.2.2 of the PRWQSR, which would 

require an amendment of the PRWQSR. 

The process for amending the PRWQSR, 

including public participation, is set 

forth in Section 8.6 of said regulation. 

(B) The existing characteristics of 

Class SA and SE waters shall not be 

altered, except by natural causes, in 

order to preserve the existing natural 

phenomena. 

(1) No point source discharge will be 

allowed in ONRWs. 

(2) [Reserved]. 

(2) Activities Regulated by CWA 

Section 404 or Rivers and Harbors 

Action Section 10 Permits (Discharge of 

dredged or fill material) 

(i) EQB will only allow the discharge 

of dredged or fill material into a wetland 

if it can be demonstrated that such 

discharge will not have an unacceptable 

adverse impact either individually or in 

combination with other activities 

affecting the wetland of concern. The 

impacts to the water quality or the 

aquatic or other life in the wetland due 

to the discharge of dredged or fill 

material should be avoided, minimized 

and mitigated. 

(ii) The discharge of dredged or fill 

material shall not be certified if there is 

a practicable alternative to the proposed 

discharge which would have less 

adverse impact on the recipient 

ecosystem, so long as the alternative 

does not have other more significant 

adverse environmental consequences. 

Activities which are not water 

dependent are presumed to have 

practicable alternatives, unless the 

applicant clearly demonstrates 

otherwise. No discharge of dredged and 

fill material shall be certified unless 

appropriated and practicable steps have 

been taken which minimize potential 

adverse impacts of the discharge on the 

recipient ecosystem. The discharge of 

dredged or fill material to ONRWs, 

however, shall be governed by 

paragraph (d)(1)(iii) of this section. 

[FR Doc. E7–9409 Filed 5–16–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[I.D. 041307D] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Allocating Bering 

Sea/Aleutian Islands Fishery 

Resources; Notice of Limited Access 

Privilege Program Public Workshop 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification of public workshop. 

SUMMARY: NMFS will present a public 

workshop on the proposed program to 

implement the Amendment 80 Program 

(Program) for potentially eligible 

participants and other interested parties. 

The Program would implement a 

limited access privilege program (LAPP) 

for specific groundfish fisheries in the 

Bering Sea and Aleutian Islands 

management area (BSAI). At the 

workshop, NMFS will provide an 

overview of the proposed Program, 

discuss the key proposed Program 

elements, and answer questions. NMFS 

is conducting this public workshop to 

provide assistance to fishery 

participants in understanding and 

reviewing this proposed Program. 

DATES: The workshop will be held on 

Wednesday, May 23, 2007, from 1 p.m. 

to 4 p.m. Pacific standard time. 

ADDRESSES: The workshop will be held 

at the Leif Erikson Lodge, 2245 NW 57th 

Street, Seattle, WA 98119. 

FOR FURTHER INFORMATION CONTACT: 

Glenn Merrill, 907–586–7228 or 

glenn.merrill@noaa.gov. 

SUPPLEMENTARY INFORMATION: NMFS 

intends to publish a proposed rule that 

would implement a LAPP for 

Amendment 80 to the Fishery 

Management Plan for BSAI Groundfish 

(FMP). Among other things, 

Amendment 80 would allocate specific 

BSAI groundfish resources among a 

defined group of harvesters under a 

LAPP; limit the bycatch of halibut and 

crab resources; assign Amendment 80 

quota share (QS) that could be used to 

yield an exclusive harvest privilege on 

an annual basis; allow Amendment 80 

QS holders to form a cooperative with 

other Amendment 80 QS holders on an 

annual basis to receive an exclusive 

harvest privilege; implement use caps to 

limit the amount of Amendment 80 QS 

a person could hold; limit the total 

amount of catch in other groundfish 

fisheries that could be taken by 

participants in the Program; ensure 

minimum retention of groundfish while 

fishing in the BSAI; and establish 

necessary monitoring and enforcement 

standards. Amendment 80 was 

approved by the North Pacific Fishery 

Management Council (Council) on June 

9, 2006. 

In addition to other laws, the Program 

is specifically designed to meet the 

requirements of: 

• Section 219 of the Consolidated 

Appropriations Act of 2005 (Public Law 

108–447; December 8, 2004), which 

defined the Amendment 80 sector and 

implemented a capacity reduction 

program for several catcher/processor 

sectors; 

• Section 416 of the Coast Guard and 

Maritime Transportation Act of 2006 

(Public Law 109–241; July 11, 2006), 

which amended provisions of the 

Community Development Quota (CDQ) 

Program in the Magnuson-Stevens 

Fishery Conservation and Management 

Act (MSA); and 

•The Magnuson-Stevens Fishery 

Conservation and Management 

Reauthorization Act (Public Law 109–

479, January 12, 2007), which modified 

provisions related to the CDQ Program 

and instituted other measures 

applicable to LAPPs. 

NMFS anticipates that a proposed 

rule implementing the Program will be 

published by mid-May. NMFS is 

conducting this public workshop to 

provide assistance to fishery 

participants in understanding and 

reviewing the proposed requirements. 

At the workshop, NMFS will provide an 

overview of the proposed Program, and 

discuss the key Program elements, 

including: quota share application; 

cooperative and limited access 

participation provisions; cooperative 

quota transfer provisions; measures to 

establish sideboard limits to protect 

non-LAPP fishery participants, the 

appeals process; catch accounting; 

monitoring and enforcement; and 

electronic reporting. Additionally, 

NMFS will answer questions from 

workshop participants. For further 

information on the Program, please visit 


jlentini on PROD1PC65 with PROPOSALS