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[Federal Register Volume 79, Number 186 (Thursday, September 25, 2014)]
[Rules and Regulations]
[Pages 57447-57450]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22835]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9916-62-OW]
RIN 2040-AF50

Water Quality Standards for the State of Florida's Lakes and 
Flowing Waters; Withdrawal

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing its 
withdrawal of federal water quality standards applicable to waters of 
the state of Florida now that Florida has adopted and EPA has approved 
relevant state standards. On December 6, 2010, EPA published a rule 
finalizing numeric nutrient standards for Florida's lakes, springs, and 
flowing waters outside of the South Florida Nutrient Watershed Region. 
The EPA established these water quality standards to protect Florida's 
Class I and III freshwaters from nitrogen and phosphorus pollution. On 
November 30, 2012, June 27, 2013, and September 26, 2013, EPA approved 
numeric nutrient standards adopted by the state of Florida for certain 
waters in the state.
    Some of the water body types and provisions covered by state-
adopted water quality standards were also included in EPA's final 
inland waters rule (criteria for Florida's lakes and springs, 
approaches to protect downstream lakes, and a provision for developing 
Site-Specific Alternative Criteria). The EPA is now withdrawing the 
overlapping federally-promulgated water quality standards to allow 
Florida to implement its state-adopted, EPA-approved water quality 
standards to address nutrient pollution in Florida's waters. 
Additionally, this rule serves as final notice that EPA is not 
finalizing three 2012 federal proposed rules related to nutrient 
pollution in Florida.

DATES: This final rule is effective on October 27, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-OW-2009-0596. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information of which disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the EPA Docket Center, EPA West Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004, Attention: Docket ID No. EPA-HQ-OW-
2009-0596. The Office of Water (OW) Docket Center is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
OW Docket Center telephone number is 202-566-1744. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is 202-566-1744.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
rulemaking, contact: Erica Fleisig, U.S. EPA, Office of Water, Mailcode 
4305T, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone 
number 202-566-1057; email address: fleisig.erica@epa.gov.

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. General Information
    A. Which water bodies are affected by this action?
    B. What entities may be affected by this action?
    C. How can I get copies of this document and other related 
information?
II. Background
    A. Background on EPA's Inland Rule, Amended Determinations, and 
Approval of State Criteria
    B. 2014 District Court Ruling and Modification of Consent Decree
    C. Summary of and Response to Public Comments on the Proposed 
Rule
    D. Withdrawal of Federal Criteria for Lakes, Springs, and DPVs
III. Statutory and Executive Order Reviews
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health and Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect 
Energy Supply, Distribution, or Use)
    I. National Technology Transfer Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
    K. Congressional Review Act

I. General Information

A. Which water bodies are affected by this action?

    In this final rule, EPA is withdrawing federally promulgated water 
quality standards (WQS) from a group of inland waters of the United 
States within Florida. Specifically, as defined below and in EPA's 
December 6, 2010 final inland waters rule (40 CFR 131.43), EPA is 
withdrawing the federal criteria for Florida's Class I and III \1\ 
freshwater lakes and springs, as well as downstream protection values 
(DPVs) to protect downstream lakes and a provision for developing site-
specific alternative criteria (SSAC) in all water bodies.
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    \1\ According to Subsection 62-302.400(1), Florida 
Administrative Code (F.A.C.):
    Class I Potable Water Supplies.
    Class III Fish Consumption; Recreation, Propagation and 
Maintenance of a Healthy, Well-Balanced Population of Fish and 
Wildlife.
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    The EPA's final inland waters rule defined ``Predominantly fresh 
waters'' to mean surface waters in which the chloride concentration at 
the surface is less than 1,500 milligrams per liter (mg/L). The EPA 
defined ``Lake'' as a slow-moving or standing body of freshwater that 
occupies an inland basin that is not a stream, spring, or wetland. 
Finally, EPA defined ``Spring'' as a site at which ground water flows 
through a natural

[[Page 57448]]

opening in the ground onto the land surface or into a body of surface 
water.

B. What entities may be affected by this action?

    This action withdraws federal WQS applicable to certain waters in 
Florida for which the state has adopted criteria that EPA has 
determined are consistent with the Clean Water Act (CWA) and EPA's 
implementing regulations. Citizens concerned with water quality, as 
well as the state of Florida, may be interested in this rulemaking. 
Also, entities discharging nitrogen or phosphorus to waters of Florida 
may be interested in this rulemaking because WQS are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

C. How can I get copies of this document and other related information?

    1. Docket. The EPA has established an official public docket for 
this action under Docket Id. No. EPA-HQ-OW-2009-0596. The official 
public docket consists of the document specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include CBI or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the OW Docket, 
William Jefferson Clinton West, Room 3334, 1301 Constitution Ave. NW., 
Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The Docket 
telephone number is (202) 566-2426. A reasonable fee will be charged 
for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. An electronic version of the 
public docket is available through EPA's electronic public docket and 
comment system, EPA Dockets. You may use EPA Dockets at http://www.regulations.gov to view public comments, access the index listing 
of the contents of the official public docket, and access those 
documents in the public docket that are available electronically. For 
additional information about EPA's public docket, visit the EPA Docket 
Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not 
all docket materials may be available electronically, you may still 
access any of the publicly available docket materials through the 
Docket Facility identified in Section I.C(1).

II. Background

A. Background on EPA's Inland Rule, Amended Determinations, and 
Approval of State Criteria

    On December 6, 2010, pursuant to a January 14, 2009 EPA 
determination and December 30, 2009 consent decree, EPA published the 
inland waters rule to establish numeric nutrient criteria for Florida's 
lakes, springs, and flowing waters outside of the South Florida 
Nutrient Watershed Region \2\. These criteria also included three 
approaches for deriving DPVs, applicable to flowing waters at the point 
where they enter downstream lakes, which would ensure protection of 
downstream lakes as required by EPA's implementing regulations (40 CFR 
131.10(b)).
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    \2\ EPA defined the South Florida Nutrient Watershed Region as 
the area south of Lake Okeechobee, the Caloosahatchee River 
watershed (including Estero Bay) to the west of Lake Okeechobee, and 
the St. Lucie watershed to the east of Lake Okeechobee.
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    On November 30, 2012, EPA amended its January 14, 2009 
determination stating that numeric criteria for downstream protection 
are not necessary to meet CWA requirements in Florida. With the 
additional clarification provided in Florida's ``Implementation of 
Florida's Numeric Nutrient Standards'' rule-referenced document on the 
scope of waters covered by state-adopted numeric nutrient criteria, EPA 
amended its January 2009 determination for a second time on June 28, 
2013, concluding that numeric nutrient criteria are not necessary for a 
limited number of waters in the state of Florida (specifically, flowing 
waters in the South Florida Region, marine lakes, tidally-influenced 
flowing waters, and conveyances primarily used for water management 
purposes with marginal or poor stream habitat components).
    These actions, coupled with EPA's November 30, 2012, June 27, 2013, 
and September 26, 2013 approvals of Florida's numeric nutrient 
criteria, result in Florida having EPA-approved numeric nutrient 
criteria for all fresh water lakes, springs, estuaries and coastal 
waters, and the majority of flowing waters in the state.

B. 2014 District Court Ruling and Modification of Consent Decree

    On January 7, 2014, the U.S. District Court for the Northern 
District of Florida granted an EPA motion to modify the consent decree 
(Case No. 4:08-cv-324-RH, Florida Wildlife Fed'n v. McCarthy, 2014 WL 
51360 (N.D. Fla. Jan. 7, 2014)). As a result of this ruling, EPA is no 
longer obligated to promulgate numeric nutrient criteria for any of 
Florida's waters, and will, therefore, not be finalizing its November 
30, 2012 federal proposed rules addressing Florida's estuaries and 
coastal waters, inland waters in the South Florida Nutrient Watershed 
Region, and the remanded portions of the inland waters rule (77 FR 
74923 and 77 FR 74985, December 18, 2012). In addition, EPA will no 
longer be finalizing its December 14, 2012 proposal to temporarily stay 
portions of the inland waters rule. The EPA can now withdraw already 
promulgated federal criteria so Florida's nutrient criteria can take 
effect.
    For more specifics on the Agency and court actions leading to this 
rule, refer to the following:

EPA Determination Regarding Florida and Consent Decree: http://
water.epa.gov/lawsregs/rulesregs/floridaconsent.cfm
Florida Adoption of Numeric Nutrient Criteria in 2012 and EPA 
Approval: http://www2.epa.gov/aboutepa/epa-florida
EPA's 2012 Proposed Rulemaking: http://water.epa.gov/lawsregs/
rulesregs/floridaindex.cfm
2013 EPA and FDEP Agreement in Principle and Path Forward: http://content.govdelivery.com/bulletins/gd/FLDEP-713cfb

C. Summary of and Response to Public Comments on the Proposed Rule

    The EPA received 12 comments on the proposed withdrawal of federal 
criteria for lakes, springs, and downstream protection values for the 
state of Florida (79 FR 18494, April 2, 2014). Eight of the commenters 
supported the proposal to withdraw federal water quality standards in 
Florida, arguing: (a) The primacy for establishing water quality 
standards lies with the states, (b) EPA's approval of Florida's water 
quality standards eliminates the need for federal standards, and (c) 
the U.S. District Court's January 7, 2014 order relieves EPA of the 
obligation to finalize numeric nutrient criteria within the state of 
Florida.
    The EPA agrees that the basis to withdraw (and not finalize) 
federal numeric nutrient criteria in the state of Florida is justified 
by the following: (1) EPA's November 30, 2012, June 27, 2013, and 
September 26, 2013 approvals of Florida-adopted numeric nutrient 
criteria and other water quality standards, (2) EPA's November 30, 2012

[[Page 57449]]

and June 28, 2013 amended Clean Water Act section 303(c)(4)(B) 
determinations, and (3) the U.S. District Court's January 7, 2014 order 
modifying the consent decree to relieve EPA of the obligation to 
finalize numeric nutrient criteria for various waters in Florida. These 
three items are described in more detail in sections II.A and II.B of 
this rule.
    The EPA received four comments requesting that federal water 
quality standards for nutrients remain in effect in the state of 
Florida, stating that aquatic resources in the state have experienced 
detrimental effects resulting from nitrogen and phosphorus pollution 
and Florida's water quality standards will be insufficient to address 
the problem. The EPA disagrees that federal numeric nutrient standards 
are necessary now that Florida has adopted and EPA has approved state 
standards to address nitrogen and phosphorus pollution. The Clean Water 
Act assigns to the states the primary authority for setting water 
quality standards. The EPA's role is largely one of oversight, in which 
it reviews and approves or disapproves a state's new or revised water 
quality standards as they are adopted and submitted to EPA. Florida now 
has state-adopted, EPA-approved criteria for lakes and springs that are 
applicable for Clean Water Act purposes. Thus there is no need for 
overlapping federal criteria for such waters.
    One comment requested that EPA not relinquish oversight authority 
of Florida's water quality standards. Withdrawal of EPA's federal water 
quality standards does not mean that EPA is relinquishing its Clean 
Water Act oversight authority in Florida. Under section 303(d) of the 
Clean Water Act, monitoring data as well as other information must be 
used by the states every two years to develop a list of waters that 
will not meet water quality standards for a particular pollutant. The 
EPA reviews and approves or disapproves state 303(d) lists, and tracks 
impaired waters nationally. Similarly, Florida controls water pollution 
by issuing National Pollutant Discharge Elimination System (NPDES) 
permits to point sources that discharge pollutants into waters of the 
United States. The EPA retains oversight authority for such permits, 
pursuant to section 402(d) of the CWA and 40 CFR 123.44(a), including 
the authority to review and comment on the permits before they are 
finalized.
    One commenter argued that EPA should not withdraw its federal 
standards because the U.S. District Court's January 7, 2014 ruling on 
the modification of the 2009 consent decree has been appealed to the 
U.S. Circuit Court for the 11th Circuit. The EPA recognizes that a 
decision from the Court of Appeals may affect that District Court 
decision and may make it necessary for the Agency to reconsider its 
obligations pursuant to the original January 14, 2009 necessity 
determination and ensuing consent decree entered by the U.S. District 
Court on December 30, 2009.
    Finally, several of the 12 comment letters that EPA received on 
this rule included comments and attachments that addressed the content, 
scope, or protectiveness of Florida's water quality standards. These 
comments are directed at whether EPA should have reached the decisions 
that serve, in part, as the basis for EPA withdrawing its federal water 
quality standards in Florida. The EPA considered substantially similar 
issues as those raised in the comments in deciding to approve Florida's 
new or revised water quality standards and to amend its Clean Water Act 
section 303(c)(4)(B) determination. Since these comments address EPA's 
underlying decisions, rather than whether EPA should withdraw its 
federal standards in light of those decisions, the comments are outside 
the scope of this action and, therefore, EPA did not address them.

D. Withdrawal of Federal Criteria for Lakes, Springs, and DPVs

    Florida now has state-adopted, EPA-approved criteria for lakes and 
springs that are applicable for CWA purposes. Thus there is no need for 
overlapping federal criteria for such waters. With respect to federal 
DPVs, EPA determined on November 30, 2012 that numeric criteria for 
downstream protection are not necessary in Florida and that same day 
approved Florida's quantitative downstream protection approach. 
Finally, since Florida has its own process for developing SSAC, a 
federal SSAC process is unnecessary. Thus, EPA is withdrawing the 
federal criteria for lakes and springs and federal DPVs that took 
effect on January 6, 2013, and the federal SSAC provision that went 
into effect on February 4, 2011.

III. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This rule does not impose any new information-collection burden 
because it is administratively withdrawing federal requirements that 
are no longer needed in Florida. It does not include any information-
collection, reporting, or recordkeeping requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201 (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule removes 
federally-promulgated water quality standards addressing nutrient 
pollution in Florida in order to allow Florida to implement its state-

[[Page 57450]]

adopted, EPA-approved water quality standards.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule removes federally-
promulgated water quality standards addressing nutrient pollution in 
Florida in order to allow Florida to implement its state-adopted, EPA-
approved water quality standards. Thus, Executive Order 13132 does not 
apply to this action.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
imposes no regulatory requirements or costs on any tribal government. 
It does not have substantial direct effects on tribal governments, the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this action.

G. Executive Order 13045 (Protection of Children From Environmental 
Health and Safety Risks)

    This rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant as defined in Executive Order 12866 and because the 
environmental health or safety risks addressed by this action do not 
present a disproportionate risk to children.

H. Executive Order 13211 (Actions That Significantly Affect Energy 
Supply, Distribution, or Use)

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because: (1) Florida's WQS apply to waters 
across the state, and thus this action will not disproportionately 
affect any one group over another, and (2) EPA has previously 
determined, based on the most current science, that Florida's adopted 
and EPA-approved criteria are protective of human health and aquatic 
life.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on October 27, 2014.

List of Subjects in 40 CFR Part 131

    Environmental protection, Florida, Nitrogen and phosphorus 
pollution, Numeric nutrient criteria, Nutrients, Water quality 
standards.

    Dated: September 17, 2014.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 131 is amended 
as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

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

Subpart D--Federally Promulgated Water Quality Standards

Sec.  131.43  [Removed]

0
2. Remove Sec.  131.43.

[FR Doc. 2014-22835 Filed 9-24-14; 8:45 am]
BILLING CODE 6560-50-P
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