`[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Rules and Regulations]
[Pages 41162-41188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19797]



[[Page 41161]]

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Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 131



Water Quality Standards for Idaho; Final Rule

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

[[Page 41162]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-5864-2]


Water Quality Standards for Idaho

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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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:

------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             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 Sec. 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

[[Page 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

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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

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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

[[Page 41166]]

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-to-government 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

[[Page 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 deg.C or less 
with a maximum daily average of 19 deg.C) and salmonid spawning use 
classification (13 deg.C or less with a maximum daily average of 
9 deg.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 deg.C based 
on daily average water temperatures, or shall not exceed a seven-day 
moving average of 15 deg.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 Sec. 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 Sec. 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

[[Page 41168]]

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 deg.C +/
-5 deg.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

[[Page 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 deg.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 deg.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 deg.C, 12 deg.C and 
10 deg.C, expressed as a seven-day average of daily maximum 
temperatures (or in some cases seven-day 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 deg.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 deg.C, but that available information 
suggests that temperatures approaching 15 deg.C reflect suboptimal 
conditions for juvenile rearing and growth and that optimal conditions 
are closer to 10 deg.C. Furthermore, available data indicates that 
temperatures at or below 9-10 deg.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.

[[Page 41170]]

    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 deg. C and another suggested an annual maximum 
temperature criteria of 15 deg. 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 
Sec. 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 
Sec. 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  deg.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 two-number 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

[[Page 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 deg.C, with spawning 
success increasing at temperatures less than 10 deg.C and optimum 
spawning temperatures being 2 to 4 deg.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 deg.F (15 deg.C) within adult holding habitat and below 48 deg.F 
(9 deg.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 deg.C (50 deg.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 deg.C (50 deg.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 deg.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 deg.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 deg.C. A temperature range of 6-8 deg.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 deg.C) in the Clark Fork River, Idaho, attracted

[[Page 41172]]

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 deg.C, although some 
spawning activity was observed in water temperatures as high as 
12 deg.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 deg.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 deg.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 deg.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 deg.C-6.5 deg.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 deg.C and occurs at optimum 
temperatures of approximately 4 deg.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 deg.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 deg.C, 6 deg.C and 
2-4 deg.C, respectively. Weaver and White (1985) report 4-6 deg.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 deg.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 deg.C appear to be most suitable for juvenile rearing, with optimal 
conditions for rearing and growth occurring between 4 and 10 deg.C 
(ODEQ, 1995). Based on field observations of the presence of juvenile 
bull trout in Idaho streams, 12 deg.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 deg.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 deg.C influenced by cold springs (5 deg.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 deg.C) in a plunge pool, which contained a strong 
side-to-side thermal gradient (8-15 deg.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 deg.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 deg.C.
    Shepard et al. (1984) reported the highest densities of bull trout 
in Montana streams at temperatures of 12 deg.C and below, some presence 
of bull trout at 15-18 deg.C, and complete absence of bull trout in 
streams with temperatures exceeding 19 deg.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 deg.C, and summer maxima as high as 20 deg.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 deg.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 deg.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 deg.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

[[Page 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 (Sec. 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 court-ordered 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.

[[Page 41174]]

    d. Final Rule. The final rule includes a list of waterbodies for 
which site-specific 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 
site-specific 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 site-specific 
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 site-specific 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,

[[Page 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  deg.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  deg.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 
deg.C minimum could be attained by May 21 and that a 14  deg.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 
14xC 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 deg.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 deg.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 deg.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 deg.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 deg.C, and that EPA was proposing a daily 
average. This commenter questioned how EPA converted a suggested 
18 deg.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 deg.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 deg.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

[[Page 41176]]

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 deg.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 deg.C to accommodate 
the Banbury Springs lanx. EPA lacks the appropriate data to support 
lowering the temperature criteria to 14 deg.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 man-made 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

[[Page 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

[[Page 41178]]

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

[[Page 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

[[Page 41180]]

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 Quality-
based 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., site-specific 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 cost-
effectiveness 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 low-end, 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

[[Page 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 high-end 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 Sec. 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 Sec. 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 forestry-related 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 forestry-related 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.

[[Page 41182]]

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).

[[Page 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:


Sec. 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  deg.C, 
expressed as an average of daily maximum temperatures over a seven-day 
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,

[[Page 41184]]

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 SALMON-CHAMBERLAIN 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

[[Page 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

[[Page 41186]]

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, Forty-four 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

[[Page 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 Sec. 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 Sec. 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.

[[Page 41188]]

    (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`