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[Federal Register Volume 77, Number 45 (Wednesday, March 7, 2012)]
[Rules and Regulations]
[Pages 13496-13499]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5604]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9637-1]
RIN 2040-AF36

Effective Date for the Water Quality Standards for the State of 
Florida's Lakes and Flowing Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing an 
extension of the March 6, 2012 effective date of the ``Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters; Final 
Rule'' (inland waters rule) for four months to July 6, 2012. EPA's 
inland waters rule included an effective date of March 6, 2012 for the 
entire regulation except for the site-specific alternative criteria 
provision, which took effect on February 4, 2011. This revision of the 
effective date for the inland waters rule does not affect or change the 
February 4, 2011 effective date for the site-specific alternative 
criteria provision.

DATES: This final rule is effective on March 6, 2012. The effective 
date of Sec.  131.43, revised on December 6, 2010 (75 FR 75805), 
effective March 6, 2012, is delayed until July 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-OW-2011-0466. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
of which disclosure is restricted by statute. Certain other material, 
such as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center, EPA West 
Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, 
Attention: Docket ID No. EPA-HQ-OW-2009-0596. The Office of Water (OW) 
Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The OW Docket Center telephone number 
is 202-566-1744. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is 202-566-1744.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
rulemaking, contact: Tracy Bone, U.S. EPA, Office of Water, Mailcode 
4305T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone 
number 202-564-5257; email address: bone.tracy@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

Does this action apply to me?

    Citizens concerned with water quality in Florida may be interested 
in this rulemaking. Entities discharging nitrogen or phosphorus to 
lakes and flowing waters of Florida could be indirectly affected by 
this rulemaking because water quality standards (WQS) are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits. Categories and entities that may ultimately be affected 
include:

------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             entities
------------------------------------------------------------------------
Industry.............................  Industries discharging pollutants
                                        to lakes and flowing waters in
                                        the State of Florida.
Municipalities.......................  Publicly-owned treatment works
                                        discharging pollutants to lakes
                                        and flowing waters in the State
                                        of Florida.
Stormwater Management Districts......  Entities responsible for managing
                                        stormwater runoff in Florida.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for entities that may be directly or indirectly affected by this 
action. This table lists the types of entities of which EPA is now 
aware that potentially could be affected by this action. Other types of 
entities not listed in the table, such as nonpoint source contributors 
to nitrogen/phosphorus pollution in Florida's waters may be indirectly 
affected through implementation of Florida's water quality standards 
program (i.e., through Basin Management Action Plans (BMAPs)).

[[Page 13497]]

Any parties or entities conducting activities within watersheds of the 
Florida waters covered by this rule, or who rely on, depend upon, 
influence, or contribute to the water quality of the lakes and flowing 
waters of Florida, may be indirectly affected by this rule. To 
determine whether your facility or activities may be affected by this 
action, you should carefully examine the language in 40 CFR 131.43, 
which is the final rule. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

    On December 6, 2010, EPA's final inland waters rule, entitled 
``Water Quality Standards for the State of Florida's Lakes and Flowing 
Waters; Final Rule,'' was published in the Federal Register at 75 FR 
75762, and codified at 40 CFR 131.43. The final inland waters rule 
established numeric nutrient criteria in the form of total nitrogen, 
total phosphorus, nitrate+nitrite, and chlorophyll a for the different 
types of Florida's inland waters to assure attainment of the State's 
applicable water quality designated uses. More specifically, the 
numeric nutrient criteria translated Florida's narrative nutrient 
provision at Subsection 62-302-530(47)(b), Florida Administrative Code 
(F.A.C.), into numeric values that apply to lakes and springs 
throughout Florida and flowing waters outside of the South Florida 
Region. (EPA has distinguished the South Florida Region as those areas 
south of Lake Okeechobee and the Caloosahatchee River watershed to the 
west of Lake Okeechobee and the St. Lucie watershed to the east of Lake 
Okeechobee.) This final inland waters rule seeks to improve water 
quality, protect public health and aquatic life, and achieve the long-
term recreational uses of Florida's waters, which are a critical part 
of the State's economy.

III. Revised Effective Date

A. Rationale for Extending the March 6, 2012 Effective Date

    As stated in the inland waters rule, 75 FR 75807, the rule was 
scheduled to take effect on March 6, 2012, except for the site-specific 
alternative criteria (SSAC) provision at 40 CFR 131.43(e), which took 
effect on February 4, 2011. As discussed at length in the proposal to 
this final rule, 76 FR 79604 and finalized in this action, EPA is 
extending the effective date of the final inland waters rule four 
months to July 6, 2012.
    The State rulemaking and legislative process is ongoing and its 
ultimate resolution is uncertain. The Florida Department of 
Environmental Protection (FDEP) sent the Environmental Review 
Commission (ERC)-approved rules and amendments to the Florida 
legislature for ratification during the 2012 regular legislative 
session. The last day of Florida's 2012 regular legislative session is 
March 9, 2012. Final State action on Florida numeric nutrient criteria 
that assure attainment of State water quality designated uses 
consistent with applicable CWA provisions could affect the need for 
EPA's criteria for corresponding waters to take effect. Implementation 
of either the State or Federal criteria could have implications for 
many interested parties and members of the public in the State.
    Extending the effective date of EPA's inland waters rule would 
avoid the confusion and inefficiency that may occur should Federal 
criteria become effective while State criteria are being finalized by 
the State, submitted to EPA, and reviewed by EPA. To this end, EPA 
proposed a 90-day extension of the March 6, 2012 effective date on 
December 22, 2012 (76 FR 79604) and requested comment. EPA also 
requested comment on whether a longer extension should be provided. 
Based on public comment, and because the State rulemaking process has 
continued toward FDEP's adoption and submission of new or revised water 
quality standards to EPA for review pursuant to CWA section 303(c), EPA 
is extending the March 6, 2012 effective date by four months to July 6, 
2012 to allow the State to complete its process.

B. Public Comment

    EPA received six comments on the proposed rule. One commenter does 
not support any delay in the effective date. This commenter says that 
an extension is inconsistent with EPA's determination that numeric 
nutrient criteria are necessary for Florida, the Clean Water Act's 
direction to EPA to act promptly in establishing such criteria 
following such determination, and a consent decree obligation. EPA 
disagrees with the commenter. EPA maintains that its determination 
remains in place and that numeric nutrient criteria for Florida were 
promptly proposed and promulgated by EPA (75 FR 75762, December 10, 
2010), consistent with EPA's determination, the CWA, and the consent 
decree. This action provides a limited time for the State of Florida to 
complete its current rulemaking process and to submit any finally 
adopted water quality standards to EPA for review under the Clean Water 
Act. As mentioned above, having EPA's criteria take effect while State 
criteria are being finalized by the State in the near term could cause 
confusion and administrative inefficiency for the State and regulated 
entities, something the EPA wants to avoid. Providing this time to 
allow the State rulemaking process to conclude will avoid such 
confusion and inefficiency.
    The other five commenters support the proposal to extend the 
effective date, arguing that the additional time would avoid the 
confusion and inefficiency that may occur should Federal criteria 
become effective while State criteria are being finalized by the State, 
and possibly being reviewed by EPA. These commenters supported the 
proposed extension of the effective date by 90 days. In addition to 
extending the effective date by 90 days, some of these commenters also 
proposed that EPA extend the comment period for longer than 90 days; a 
six-month extension and a seven-month extension were mentioned 
specifically. EPA agrees that a slightly longer extension is warranted, 
but that four months is appropriate in order to provide sufficient time 
to allow the State rulemaking process to come to completion.
    Therefore, based on public comment as well as the continued 
progress by Florida in their water quality standards process, EPA 
believes that a four-month extension is warranted.
    EPA received a comment urging actions related to an EPA rulemaking 
under development (i.e., not the inland waters rule). These comments 
are outside the scope of this action and therefore EPA is not 
addressing them.

C. Good Cause Exemption

    Section 553(d)(3) of the Administrative Procedure Act, 5 U.S.C. 
553(d)(3), provides that ``[t]he required publication or service of a 
substantive rule shall be made not less than 30 days before its 
effective date, except * * * (3) as otherwise provided by the agency 
for good cause found and published with the rule.'' Today's final rule 
is a rule that relieves a restriction, i.e., that delays the effective 
date of a Federal rule. Today's rule does not establish any 
requirements but rather merely extends the effective date of already-
promulgated requirements. On this basis, EPA has determined that there 
is ``good cause'' for having this rule take effect upon March 6, 2012. 
EPA thus finds that this constitutes ``good cause'' under 5 U.S.C. 
553(d)(3).

[[Page 13498]]

IV. Statutory and Executive Order Reviews

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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993), since it 
merely extends the effective date of an already promulgated rule, and 
is therefore not subject to review under Executive Order 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action does not impose any 
information collection burden, reporting or record keeping requirements 
on anyone.

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

    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 final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. This final rule does not regulate or 
affect any entity and, therefore, is not subject to the requirements of 
sections 202 and 205 of UMRA.

E. Executive Order 13132 (Federalism)

    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action merely extends the 
effective date of an already promulgated regulation.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has Tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by Tribal governments, or 
EPA consults with Tribal officials early in the process of developing 
the proposed regulation and develops a Tribal summary impact statement. 
However, the rule will neither impose substantial direct compliance 
costs on Tribal governments, nor preempt Tribal law.
    In the State of Florida, there are two Indian Tribes, the Seminole 
Tribe of Florida and the Miccosukee Tribe of Indians of Florida, with 
lakes and flowing waters. Both Tribes have been approved for treatment 
in the same manner as a State (TAS) status for CWA sections 303 and 401 
and have federally-approved WQS in their respective jurisdictions. 
These Tribes are not subject to this final rule. This rule will not 
impact the Tribes because it merely extends the date of already 
promulgated requirements.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 12866 
and because the Agency does not believe this action includes 
environmental health risks or safety risks that would present a risk to 
children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g.,

[[Page 13499]]

materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

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

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes Federal executive policy on environmental justice. Its main 
provision directs agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. This action is not subject to E.O. 
12898 because this action merely extends the effective date for already 
promulgated requirements.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date of March 6, 2012. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

    Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.

    Dated: February 16, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-5604 Filed 3-6-12; 8:45 am]
BILLING CODE 6560-50-P
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