Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24641

SUMMARY: The Commander, First Coast

Guard District has issued a temporary

90 day deviation from the existing

drawbridge operation regulations for the

Metro-North Bridge, mile 1.0, at

Greenwich, Connecticut. This deviation

will require the bridge to open on

signal, June 7, 2000 through September

4, 2000, from 9 p.m. to 5 a.m., after a

four-hour advance notice is given by

calling the number posted at the bridge.

The bridge presently does not open for

vessel traffic between 9 p.m. and 5 a.m.,

daily. This deviation is necessary in

order to test an alternate drawbridge

operation schedule.

DATES: This deviation is effective from

June 7, 2000 through September 4, 2000.

Comments must reach the Coast Guard

on or before September 30, 2000.

ADDRESSES: You may mail comments to

Commander (obr), First Coast Guard

District, Bridge Branch, at 408 Atlantic

Avenue, Boston, MA. 02110–3350, or

deliver them at the same address

between 7 a.m. and 3 p.m., Monday

through Friday, except Federal holidays.

The telephone number is (617) 223–

8364.

FOR FURTHER INFORMATION CONTACT: Mr.

John McDonald, Project Officer, First

Coast Guard District, (617) 223–8364.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in

this notice by submitting comments or

related material. If you do so, please

include your name and address, identify

the docket number for this notice

(CGD01–00–016), indicate the specific

section of this document to which each

comment applies, and give the reason

for each comment. Please submit all

comments and related material in an

unbound format, no larger than 81⁄2 by

11 inches, suitable for copying. If you

would like to know if they reached us,

please enclose a stamped, self-addressed

postcard or envelope. We will consider

all comments and material received

during the comment period.

Background and Purpose

The Metro-North Bridge, mile 1.0,

across the Mianus River has a vertical

clearance of 20 feet at mean high water

and 27 feet at mean low water in the

closed position. The existing operating

regulations in 33 CFR 117.209 require

the bridge to open on signal from 5 a.m.

to 9 p.m., immediately for commercial

vessels and as soon as practicable but no

later than 20 minutes after the signal to

open for the passage of all other vessels.

When a train scheduled to cross the

bridge without stopping has passed the

Greenwich or Riverside stations and is

in motion toward the bridge, the draw

shall open as soon as the train has

crossed the bridge. From 9 p.m. to 5

a.m., the draw need not be opened for

the passage of vessels.

The Coast Guard received a request

from a commercial vessel operator

requesting a change to the operating

regulations for the Metro-North Bridge.

The commercial operator has five

vessels that transit the Metro-North

Bridge. One of the five vessels can not

transit through the bridge without a

bridge opening. The commercial

operator would like the bridge to open

for vessel traffic during the 9 p.m. to 5

a.m. time period. The commercial

operator expects to make 30–40 night

transits from May through October that

will require bridge openings after 9

p.m., when the bridge is normally

closed.

Under the deviation, the Metro-North

Bridge, mile 1.0, across the Mianus

River at Greenwich, from June 7, 2000

through September 4, 2000, will, from 5

a.m. to 9 p.m., open on signal

immediately for commercial vessels and

as soon as practicable, but no later than

20 minutes after the signal to open for

the passage of all other vessels. When a

train scheduled to cross the bridge

without stopping has passed the

Greenwich or Riverside stations and is

in motion toward the bridge, the draw

will open as soon as the train has

crossed the bridge. From 9 p.m. to 5

a.m., the draw will open on signal if at

least a four-hour advance notice is given

by calling the number posted at the

bridge.

It is expected that this test schedule

will meet the present needs of

navigation.

This deviation from the normal

operating regulations is authorized

under 33 CFR 117.43.

Dated: April 12 2000,

Robert F. Duncan,

Captain, U.S. Coast Guard, Acting

Commander, First Coast Guard District.

[FR Doc. 00–10452 Filed 4–26–00; 8:45 am]

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 131

[FRL–6571–7]

RIN 2040–AD33

EPA Review and Approval of State and

Tribal Water Quality Standards

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: This rule specifies that new

and revised standards adopted by States

and authorized Tribes after the effective

date of today’s rule become ‘‘applicable

standards for Clean Water Act

purposes’’ only when approved by EPA.

To facilitate transition to this approach,

standards in effect under State and

Tribal law and submitted to EPA before

the effective date of the new rule may

still be used for Clean Water Act

purposes, whether or not approved by

EPA, until replaced by Federal water

quality standards or approved State or

Tribal standards.

EFFECTIVE DATE: May 30, 2000.

ADDRESSES: This rule’s administrative

record is available for review and

copying from 9:00 to 4:00 p.m., Monday

through Friday, excluding legal

holidays, at the Water Docket, East

Tower Basement, Room EB57, U.S. EPA,

401 M Street, SW, Washington DC. For

access to materials, please call (202)

260–3027 to schedule an appointment.

The Clean Water Act Water Quality

Standards dockets discussed in III.E.4 of

the SUPPLEMENTARY INFORMATION below

are available for viewing in the Regional

Offices. Regional contacts, addresses,

and phone numbers are included in the

supplementary section of this preamble.

FOR FURTHER INFORMATION CONTACT:

William Morrow, Office of Science and

Technology, Standards and Applied

Science Division, (202) 260–3657,

morrow.william@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Potentially Regulated Entities

II. Background

III. Summary of final rule and response to

major comments

A. General Approach

B. Integration with CWA Section 510

1. Proposed Rule

2. Major Comments and Responses

3. Final Rule

C. EPA Transition Strategy

1. Proposed Rule

2. Major Comments and Responses

3. Final Rule

D. Delay Related Comments

1. Default Approval/Disapproval

2. Integration with ESA

E. Other Issues

1. Integration with TMDL/NPDES Programs

2. Coordination between Federal and State

and Tribal Processes

3. Standards subject to the rule

4. CWA WQS Docket

a. Proposed Rule

b. Major Comments and Responses

c. Final Rule

IV. Regulatory Flexibility Act as Amended by

the Small Business Regulatory

Enforcement Fairness Act

V. Unfunded Mandates Reform Act

VI. Regulatory Planning and Review,

Executive Order 12866

24642 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

VII. Federalism, Executive Order 13132

VIII. Consultation and Coordination with

Indian Tribal Governments, Executive

Order 13084

IX. Paperwork Reduction Act

X. Protection of Children from

Environmental Health Risks and Safety

Risks, Executive Order 13045

XI. National Technology Transfer and

Advancement Act

XII. Congressional Review Act

I. Potentially Affected Entities

Citizens concerned with water quality

may be interested in this rulemaking.

Entities discharging pollutants to waters

of the United States could be indirectly

affected by this rulemaking since water

quality standards are used in

determining National Pollutant

Discharge Elimination System (NPDES)

permit limits. Potentially affected

entities include:

Category Examples of potentially affected entities

States, Tribes, and Territories .................................................................. States, Territories, and Tribes authorized to administer water quality

standards.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. 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

Section 303(c) of the Clean Water Act

requires States, which as defined

include Territories and authorized

Tribes, to review their water quality

standards periodically, to adopt new or

revised standards as needed, and to

submit their standards for EPA review.

Authorized Tribes are Tribes that have

approved CWA section 303 authority

pursuant to 40 CFR 131.8. EPA will

approve or disapprove any such new or

revised standards. Section 303(c)(3)

states that ‘‘If the Administrator, within

sixty days after the date of submission

of the revised or new standard,

determines that such standard meets the

requirements of this Act, such standard

shall thereafter be the water quality

standard for the applicable waters.’’ If

the Administrator determines that the

new or revised standard does not meet

those requirements, she shall take

specified steps to ensure that an

adequate standard is in place. (See

preamble to proposed rule (64 FR 37072

(July 9, 1999)) for a more detailed

description of the statutory

background.)

Notwithstanding this statutory

language, EPA’s 1983 water quality

standard regulations set out an

interpretation of the Act which allowed

State and Tribal standards to go into

effect for CWA purposes as soon as they

were adopted and effective under State

or Tribal law, and to remain in effect

unless and until replaced by another

standard. The 1983 rule reflected an

Agency interpretation which dated back

at least to 1977. See Opinion of the

General Counsel No. 58, Issue 2, In re

Bethlehem Steel Corporation, March 29,

1977. On July 8, 1997, the district court

issued an opinion in Alaska Clean

Water Act Alliance v. Clark, No. C96–

1762R (W.D. Wash.) holding that the

plain meaning of the Clean Water Act

was that new and revised state water

quality standards were not effective for

Clean Water Act purposes until

approved by EPA. The parties to the

lawsuit entered into a settlement

agreement under which EPA agreed to

propose revisions to 40 CFR 131.21(c)

consistent with the Court’s opinion no

later than July 1, 1999, and to take final

action within nine months of the

proposal. Today’s final rule is issued in

accordance with this settlement

agreement.

The proposed rule was published in

the Federal Register on July 9, 1999,

with a 45 day comment period. The

public comments on the proposed rule

are available in the docket for this rule.

III. Summary of Final Rule and

Response to Major Comments

A. General Approach

Like the proposal, the final regulation

sets out a general rule that if a State or

authorized Tribe adopts a WQS that

goes into effect after the effective date of

this rule, that standard becomes the

applicable WQS for purposes of the

CWA when EPA approves it, unless or

until EPA has promulgated a more

stringent Federal WQS for the State or

authorized Tribe. For example, where

EPA has previously promulgated a more

stringent Federal standard, the newly

approved State or Tribal standard will

go into effect for CWA purposes after

EPA removes the Federal rule. Another

example is where EPA approves a State

or Tribal standard and at a later date,

based on new information, determines

that a new or revised standard is

necessary. If the State or Tribe does not

revise the previously approved

standard, EPA would promulgate a

Federal standard to supercede the

previously approved standard. EPA

clarified this in today’s final rule by

changing the heading in the table at

§ 131.21(c) from ‘‘unless’’ to ‘‘unless or

until.’’

As discussed in section III.C., in

response to comments, today’s final rule

modifies the proposed transition

provision (referred to in the proposal as

a grandfather provision) allowing

standards which went into effect prior

to the effective date of today’s rule to be

used for CWA purposes. The final rule

also establishes an approach to integrate

the requirements of CWA sections 303

and 510 that is different than the

proposal. The following discussion

summarizes the major comments, and

explains why EPA did or did not modify

the proposal in response to these

comments. A complete response to

comments is in the administrative

record for this rule—see ADDRESSES.

The comments were divided on the

general approach in the proposal. A

number of commenters, especially

environmental groups, strongly

supported the proposal in general as

mandated by the Clean Water Act and

as ensuring that only standards which

meet the requirements of the CWA

would be used for CWA purposes

(although some objected to the

exceptions provided for standards

adopted before the effective date of the

final rule and for new, not less stringent

standards). Other commenters indicated

that the new approach would be

acceptable if steps were taken to address

delays in EPA approval of standards

(e.g., provide for default approvals if

EPA did not act in a timely fashion).

Finally, a number of commenters

expressed support for retaining the

current approach; particular

commenters questioned the legal basis

for the new approach or felt that it

infringed on States’ rights; or expressed

concerns that the new approach would

create a confusing system of dual

standards and/or result in gaps when a

State repealed an old standard.

The final rule retains the general

approach of the proposed rule. EPA

agrees that this approach (that is,

standards are not effective for CWA

purposes until approved by EPA)

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24643

reflects the plain language of CWA

section 303(c)(3). While the commenters

have raised various practical issues

concerning the implementation of the

proposed approach, EPA believes that

these problems can generally be

addressed and do not justify a different

interpretation of the language of section

303(c)(3). EPA does not believe that the

final rule infringes on State or Tribal

rights. States and authorized Tribes will

continue to have the flexibility to adopt

new and revised standards whenever

deemed appropriate or necessary.

Today’s final rule does not affect the

basis for EPA review and approval/

disapproval. The substantive

requirements of the CWA and EPA’s

implementing regulations remain

unchanged. Today’s final rule only

affects the timing of the effectiveness,

for CWA purposes, of State and Tribal

revisions to standards.

Many commenters noted that EPA has

not always been able to meet its CWA

deadlines when reviewing and taking

action on (i.e., approving and/or

disapproving) WQS submissions and

expressed concern that such delays

would cause problems under the new

rule. EPA acknowledges this concern

and is working with its EPA Regional

offices and States and authorized Tribes

to streamline the EPA review and

approval/disapproval process. For

example, EPA has identified

Endangered Species Act (ESA)

consultations as one source of delay in

EPA approval actions. EPA is working

with both the Fish and Wildlife Service

(FWS) and the National Marine

Fisheries Service (NMFS) to streamline

the consultations. One key outcome of

these discussions will be the

finalization of the Memorandum of

Agreement (MOA) that EPA, NMFS, and

FWS solicited public comment on in

January of 1999 (see 64 FR 2741). EPA,

NMFS, and the FWS believe the final

MOA will provide a framework for

streamlining consultations in the

Regional and Field offices. EPA is also

discussing with States and authorized

Tribes how they can assist EPA in

assuring that the needs of threatened

and endangered species are addressed

in the development of State and Tribal

standards. Although consultation under

the ESA is EPA’s obligation, in

discussions with EPA, States have

acknowledged they have a role in

assuring that State standards adequately

protect aquatic life and the

environment, including threatened and

endangered species.

EPA is also working with States and

authorized Tribes to determine if it

needs to further clarify the WQS

program requirements in 40 CFR Part

131 (see 63 FR 36742). At a minimum,

EPA will jointly develop guidance with

States and authorized Tribes to improve

the current State and Tribal adoption

and EPA review and approval/

disapproval process. EPA believes that,

once completed, this guidance will

inform EPA Regional offices and States

and authorized Tribes on how to

identify and resolve concerns early in

the process, so that when new or revised

State and Tribal WQS are submitted to

EPA, there are no unexpected issues and

EPA can act in a timely fashion. In

addition, EPA will continue to provide

technical assistance and training for the

water quality standards program. Such

training and workshops will reflect the

joint strategy developed by EPA, States

and authorized Tribes in the

aforementioned guidance.

Several commenters expressed

concern that when States adopt new or

revised standards, the old ones expire as

a matter of State law. They wanted to

know how the old standards can be

used for CWA purposes when the new

or revised standards are the only

standards in effect for State purposes.

The old standards remain the applicable

CWA standards and will be retained in

the CWA WQS docket until EPA

approves the State or Tribal revisions, or

until EPA promulgates a more stringent

standard (see also section 131.21(e) of

today’s final rule). There are several

things States and authorized Tribes can

do to avoid or minimize using such old

standards pending EPA action on their

replacement. First and foremost, States

and authorized Tribes should submit

new and revised standards to EPA for

review and approval/disapproval as

soon as duly adopted into State or

Tribal law. Such a submission, meeting

the requirements of 40 CFR 131.6, will

start EPA’s 60/90 day clock for review

and approval/disapproval respectively

under the CWA. Secondly, States and

Tribes should coordinate with EPA’s

Regional Offices early in the State and

Tribal standards development process.

This will help avoid any confusion as to

what is ‘‘approvable.’’ EPA believes that

early and frequent communication will

help ensure that States and authorized

Tribes submit standards revisions that

are scientifically defensible and

consistent with the CWA, thus avoiding

a disapproval once officially submitted

to EPA. For more information on

coordinating State and Tribal actions

with EPA’s CWA review see section E.

Starting (and completing) EPA’s review

process as quickly as possible will

minimize the number of regulatory

actions a State or authorized Tribe is

likely to take prior to a new or revised

standard being approved by EPA. In

addition, States and authorized Tribes

may consider changing their procedures

so that a revision to a State or Tribe’s

standard is not effective under State or

Tribal law until after EPA approves or

after a period of time—such as 90

days—that provides an opportunity for

submittal and completion of EPA review

while the old standard remains on the

State or Tribal books. In addition, some

States and authorized Tribes may decide

to delay any regulatory actions (e.g.,

draft NPDES permits) until EPA

approval of revised standards.

In the (hopefully rare) event that a

State or authorized Tribe does need to

take a regulatory action before EPA

review of a revision is complete, there

are several options available. Some

States or authorized Tribes may propose

regulatory actions based on newly

adopted standards not yet approved by

EPA. For example, a State might

develop a draft permit based on new or

revised, less stringent standards. If the

revised standards are not approved by

EPA by the end of the permit review

period, then EPA could object to the

proposed permit, or the State could

decide to withdraw and re-propose the

permit based on the previous standards.

Alternatively, the State could develop,

and take public comment on, limits

calculated from both the old and new

standards with the final limits

contingent on EPA’s standards approval

decision. This approach may avoid the

need to withdraw and reissue the permit

if EPA disapproves the changes to the

water quality standards. EPA believes

that, as a practical matter, these timing

issues will only apply to new and

revised standards that are less stringent

than the previous standard. If the State

or authorized Tribe’s new and revised

standard is equal to, or more stringent

than the previous standard, both

standards would be satisfied by

implementing the more stringent

standard pusuant to State or Tribal law.

B. Integration With CWA Section 510

1. Proposed Rule

Section 131.21(f) of the proposed rule

specified that State or Tribal water

quality standards which are not less

stringent than the ‘‘applicable water

quality standards’’ (that is, not less

stringent than approved (or

grandfathered) standards may be

adopted and enforced within the

boundaries of the adopting State or

authorized Tribe. The preamble also

specified that, under CWA sections

301(b)(1)(C) and 510, NPDES permits

within the State or Tribe in question

were required to assure compliance

24644 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

with such a ‘‘510 standard’’ even prior

to EPA approval.

2. Major Comments and Responses

The comments were almost uniformly

critical of the proposed § 131.21(f) and

the interpretation of section 510 which

it reflected, although the nature of the

objections varied.

Comment: Several commenters argued

that even ‘‘not less stringent’’ standards

required EPA approval before they

could be used in any way under the

CWA. EPA interprets these comments to

argue that section 510 did not preempt

EPA’s section 303(c) approval

requirement in such cases but simply

made it clear that an approved standard

could be more stringent than a

minimum requirement established by

the CWA. Some of these commenters

also argued that the district court had

already rejected the approach set out in

the proposal. Others who argued that all

standards needed approval before being

used assumed that EPA could

disapprove a ‘‘more stringent’’ standard

as unjustified; and these commenters

wanted EPA approval as a pre-requisite

for any standard going into effect to

ensure that overly stringent standards

did not become effective. Commenters

in both camps were concerned that

making stringency determinations could

be difficult, time-consuming, or open to

abuse.

Response: The preamble to the

proposed rule implicitly assumed that

section 510 effectively waived the

requirement that State and Tribal water

quality standards be approved before

they were used as CWA standards as

long as they were ‘‘not less stringent.’’

Section 510 is a savings provision.

However, as some commenters pointed

out, section 510 starts with the words,

‘‘Except as expressly provided in this

Act.’’ Since section 303(c)(3) expressly

specifies that new or revised standards

do not become the effective standards

until approved by EPA, it is reasonable

to read section 510 as meaning that EPA

cannot disapprove a standard simply for

being overly stringent, rather than that

more stringent standards are effective

whether or not approved by EPA. If

section 510 is read this way, the

reference in section 301(b)(1)(C) to

standards ‘‘established under State law

under authority preserved under section

510’’ is to approved standards which are

more stringent than required, not—as in

the proposal—to unapproved ‘‘not less

stringent’’ standards. EPA agrees that

this is a reasonable construction of the

relevant provisions of the Act, and one

that better serves the purposes of the

Act.

Under this reading, one avoids the

problems associated with determining

whether a new or revised standard is

‘‘not less stringent’’ (under the proposal,

unapproved ‘‘not less stringent’’

standards had to be reflected in a

permit). If standards are not required to

be used for CWA purposes until

approved, there is no need to make

comparative judgments of stringency. At

the time of approval, the test is whether

the new or revised standards meet the

requirements of the CWA and EPA’s

implementing regulations, not whether

they are more or less stringent than

predecessor standards. Once such

standards are approved, they are the

applicable water quality standards for

CWA purposes regardless of relative

stringency.

Comment: Some commenters argued

that ‘‘more stringent’’ standards should

never need EPA review and approval.

Response: EPA does not believe that

it is reasonable to interpret section 510

to dispense altogether with EPA review

of such standards. Section 303(c) clearly

requires States and authorized Tribes to

submit all new or revised standards to

EPA for review and approval or

disapproval. Since section 510 begins

‘‘Except as expressly provided in this

Act,’’ the authority preserved under

section 510 is limited by, and does not

override, the requirements for EPA

review set out in section 303(c).

Comment: Many commenters argued

that the proposal would lead to

confusion and be difficult to implement

since it would not always be obvious

whether a new or revised standard was

more stringent. Some of these

commenters suggested that this

confusion could be eliminated by

having EPA review and approve or

disapprove all new or revised standards

regardless of stringency.

Response: EPA agrees that it is not

always easy to determine whether a new

or revised standard is more stringent

than its predecessor, and that under the

proposal there could have been a need

to decide the relative stringency of a

new or revised, but not yet approved,

WQS. Because the proposal regarded

unapproved ‘‘not less stringent’’

standards as standards adopted under

authority preserved by section 510

standards, such standards would have

been required to be implemented in

NPDES permits under section

301(b)(1)(C) prior to approval.

Accordingly, States, authorized Tribes,

and the regulated public would have

been forced to determine the relative

stringency of as-yet-unapproved

standards in pending NPDES permit

proceedings to know whether permits

had to assure compliance with such

standards. As discussed previously in

response to the first comment, the final

rule addresses this issue.

Comment: Under the proposal,

stringency comparisons were to be made

between the new or revised standard

and the previous ‘‘applicable water

quality standard’’ (i.e., approved or

‘‘grandfathered’’ standard). The final

rule should also allow new or revised

standards to be used prior to approval

if they are at least as stringent as EPA’s

corresponding section 304(a) ambient

water quality criteria, or whenever there

are no corresponding section 304(a)

criteria, even if the new or revised

standards are less protective than the

previous applicable standard in the

CWA docket.

Response: As discussed above, the

final rule requires that all new or

revised standards be approved by EPA,

regardless of stringency, before they are

required to be used under the CWA.

Therefore, the issue of how to make

stringency comparisons is moot.

3. Final rule

The final rule deletes proposed

131.21(f). As discussed in response to

previous comments, the proposal was

based on an overly broad reading of

CWA section 510 and would have led to

substantial confusion.

However, EPA does not want to leave

the impression that States and

authorized Tribes will have no means to

achieve the objectives of more stringent

criteria while awaiting EPA approval. In

the case of a proposed State or Tribal

NPDES permit, as long as the permit

assures compliance with approved

water quality standards, EPA would not

object to it as not meeting the

requirements of the Act (e.g., section

301(b)(1)(C)) merely because the State or

authorized Tribe included effluent

limitations which also meet an as-yet

unapproved but more stringent State or

Tribal standard. (Similarly, EPA would

not disapprove a TMDL on the grounds

that it was more stringent than needed

to meet the applicable water quality

standard.) In the case of a federally

issued NPDES permit, EPA’s obligation

would be to include permit conditions

which assured compliance with

approved standards and with any

conditions in a State or Tribal section

401 certification. As part of a section

401 certification, if a State or authorized

Tribe includes not only water qualitybased effluent limits (WQBELs) required

under section 301(b)(1)(C) but also

conditions needed to meet ‘‘other

appropriate requirement[s] under State

law’’ under section 401(d), EPA would

also include those supplemental

conditions in the permit. Finally, as

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24645

EPA improves the timeliness of its water

quality standards actions (i.e., approval

and/or disapproval), more stringent

standards will become the applicable

standards sooner after adoption.

C. EPA Transition Strategy

1. Proposed Rule

Under the proposal, State and Tribal

standards in effect (under EPA’s 1983

rule) before the effective date of this

new final rule would remain in effect

until superseded by a standard

approved or promulgated by EPA.

Under the proposal, this transitional

provision (referred to as

‘‘grandfathering’’ in the proposal)

applied to all such pre-existing

standards, whether or not they had been

submitted to EPA, and, if submitted,

whether or not they had been

disapproved or were merely awaiting

EPA approval/disapproval. This

reflected the fact that under the 1983

rule such distinctions did not affect the

effectiveness of State and Tribal

standards.

2. Major Comments and Responses

Comment: Such a transition provision

is necessary if EPA proceeds with the

general approach, given EPA’s backlog

and the difficulty in ‘‘resurrecting’’ the

previous approved standards.

Response: EPA agrees. After

reviewing all the comments, EPA

believes that its original conclusion—

that, given the previous implementation

of section 303(c), identifying and

resurrecting the previous approved

standards would often be difficult and

in some cases impossible—is still

correct. Furthermore, if no such

previous standard could be identified,

there could be a gap in standards to

apply. None of the commenters

seriously disputed those conclusions.

Given the current backlog in

unapproved and disapproved standards

and the state of previous record keeping

(e.g., no CWA WQS docketing system),

the only practicable way to put the new

rule into effect at this time without

causing serious disruption is to provide

a transition provision. Moreover, some

commenters mentioned their reliance on

the old rule. Furthermore, the effort that

would be expended in identifying

previously approved water quality

standards would likely detract from

EPA’s ability to promptly review new

and revised standards submissions and

to promulgate Federal water quality

standards where needed.

Comment: The transition provision is

inconsistent with CWA section 303(c)(3)

as interpreted by the court.

Response: EPA now accepts the

court’s interpretation of section

303(c)(3), and also does not take the

position that section 303(c)(3) itself

establishes a transition provision.

However, logically, that does not

foreclose the use of a limited transition

provision when implementing a new or

revised regulation. Today’s rule is not

written on a blank slate. EPA believes

that in revising its regulation to reflect

the court’s interpretation of section

303(c)(3), EPA has some discretion in

constructing a transition from its

longstanding previous approach.

Significantly, many of the commenters

who objected to the transition provision

as proposed, citing its inconsistency

with section 303(c)(3), nonetheless

recognized the need for some transition

and were accepting of, as one put it, ‘‘a

limited accommodation in light of past

practices,’’ e.g., a grandfather or

transition provision with a defined end

date. However, by making such

alternative suggestions, these

commenters are implicitly

acknowledging that having a transition

provision is not per se illegal. For the

reasons discussed in the preambles to

the proposed and final rules, EPA

believes that such a transition provision

is needed here and that the transition

provision in the final rule is a

reasonable exercise of such discretion.

The water quality standards being

grandfathered or transitioned are a small

fraction of all State and Tribal standards

currently in effect (i.e., most existing

standards have been approved). Further,

the absolute numbers will decrease over

time as EPA completes its review and

takes action on (i.e., approves/

disapproves) backlogged submissions

or, in the case of backlogged

disapprovals, obtains satisfactory

revisions from the State or promulgates

superseding Federal standards. Most

States and Territories have had their

base program in place and approved by

EPA for many years now. EPA is current

in its review and approval of standards

revisions for 19 States, 14 Tribes, 4

Territories, and the District of Columbia.

EPA’s backlog of unapproved standards

in the remaining States consist

primarily of recent refinements made by

States to keep up with the latest science

(e.g., site-specific criteria, changes to

designated uses for specific

waterbodies) and to tailor standards to

specific watersheds. Accordingly, EPA

believes that in practice the transition

provision will be fairly narrow in scope

relative to approved State and Tribal

standards, and that it will expire over

time as EPA completes its review of the

outstanding standards.

Comment: The grandfather provision

should be more limited, e.g., should not

apply to disapproved standards or to

standards which have never been

submitted to EPA, should apply only to

standards which were submitted more

than 3 years ago, or should expire 6

months after the effective date of the

rule.

Response: EPA considered ways to

narrow the transition provision. EPA

agrees with the suggestion that the

grandfather provision be limited to

standards which have been submitted to

EPA as of the effective date of the final

rule, and has modified the rule

accordingly. As revised, the transition

provision will eliminate any incentive

for States and authorized Tribes not to

submit pre-existing standards to EPA for

review. 40 CFR 131.20(c) currently

requires States and authorized Tribes to

submit standards containing new or

revised provisions within 30 days of

adoption. If States or authorized Tribes

do not comply with this requirement,

EPA’s review of those standards may be

delayed. EPA believes it is

inappropriate for States and authorized

Tribes to have those standards covered

by the transition policy because of their

failure to submit the standards to EPA.

States or authorized Tribes who have

made timely submissions will not be

affected by this change from the

proposal.

EPA also considered whether to

exclude disapproved standards from the

transition provision. However, the

practical difficulties in resurrecting the

previous approved standard are just as

likely to arise in the case of a

disapproved standard as in the case of

a standard for which EPA review is

incomplete. In addition, because of

evolving science, the previous approved

standard—even if identical—may not

necessarily be significantly more

protective than the recently disapproved

standard. Moreover, it is EPA’s

judgment that in the long run its

resources would be better spent

resolving disapprovals (either by

helping the State remedy the problem or

by promulgating a Federal standard)

than by a time-consuming and perhaps

fruitless search for the previous

approved standard. It is EPA’s

expectation that the number of

disapproved standards covered by the

grandfather provision will diminish and

ultimately disappear as States make

acceptable revisions to the disapproved

standards or EPA promulgates

superseding Federal standards. While

EPA acknowledges that this approach

leaves inadequate standards in place

temporarily, EPA believes that, on

balance and considering all the factors

24646 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

discussed above, this approach is the

one best calculated to obtain the

ultimate goal—timely approval or

replacement of all new and revised

water quality standards.

EPA also considered whether to

provide a sunset for the transition

provision. Commenters suggested times

ranging from 60 days to 2 years. One

commenter said EPA has not

demonstrated the need for an unlimited

grandfather provision for submitted but

not-yet-reviewed standards, arguing that

there are only 60 or so submissions

awaiting EPA action, and for about half

of those EPA has completed its review

and is waiting for ESA consultation to

conclude, and that EPA has not shown

that it cannot muster the resources to

complete the job in a relatively short

time, such as 60 days. EPA agrees that

the standards which will be covered by

the transition provision are limited and

believes that fact helps make the

provision reasonable. However, it does

not follow that a 60-day limit should be

placed in the provision. EPA hopes to

have a substantial part of the backlog of

pending submissions dealt with by the

effective date of this rule. For this

reason, EPA expects the practical effect

of the grandfather provision to be

limited. However, it is unrealistic to

expect the backlog to be eliminated

entirely within the 60 days suggested by

the comment. The remaining items are

more complicated, e.g., situations where

more information is needed from the

State or authorized Tribe to evaluate the

adequacy of the standard or where the

standard in question raises novel and

unique National issues that EPA has not

spoken to before (i.e., precedent setting).

Moreover, the 60 submissions referred

to by the commenter are simply those

on which EPA action is overdue; EPA

staff are also engaged in reviewing more

recent submissions, as well as working

on resolution of previously disapproved

items, where rulemaking procedures

take longer than 60 days. Under the

circumstances, it is impractical to

specify a date certain by which all the

backlogs will be completely resolved.

Comment: If the final rule contains a

transition provision, it should not apply

to pending water quality standards that

create exceptions, variances, or

exemptions from other standards. In this

situation, there is no problem

identifying what would be in place in

lieu of the pending standard.

Response: While in theory this

suggestion has some appeal, in practice

implementing it would not be so simple.

Water quality standards changes are not

always as clear-cut or obvious as the

comment suggests. Variances and other

exceptions from standards are not

always labeled as such. In addition,

some standards submissions which

create variances and exceptions from

standards also modify the underlying

standard (e.g., add a variance process as

quid pro quo for making a standard

more stringent). If the applicability of

the transition provision depends on

subjective judgments—as opposed to an

objective comparison of dates—then

resources which should be spent

reviewing standards would be diverted

into resolving the applicability of the

transition provision and suggested

exception to the transition provision

would be counterproductive. It is EPA’s

judgment that a relatively simple

transition provision will in the long run

result in the most expeditious and

efficient elimination of the backlog.

3. Final Rule

The final rule retains a transition

provision for standards adopted prior to

the effective date of today’s rule, but

modifies it by requiring that standards

must have also been submitted to EPA,

that is, submitted to EPA pursuant to

and consistent with the submission

requirements of 40 CFR Part 131.6, by

May 30, 2000 in order to qualify. A State

or Tribal standard must be (1) Duly

adopted, (2) in effect under State or

Tribal law, and (3) submitted to EPA by

May 30, 2000 in order to be in effect for

CWA purposes prior to EPA approval.

All three eligibility criteria must be met

in order to be covered by the transition

provision contained in today’s rule at

131.21(c).

D. Delay Related Comments

1. Default Approval/Disapproval

A number of commenters suggested

that EPA modify the final rule to specify

that State and Tribal water quality

standards submissions be deemed

approved if EPA does not act within the

60 or 90 days required by the CWA.

There were variations on the suggested

default time period, and some

commenters suggested a ‘‘conditionally

approved’’ or ‘‘interim approval’’ label,

but the general approach advocated in

several of the comments was a ‘‘default

approval’’ if EPA fails to take timely

action. In such instances, it was

suggested that the State submittal could

serve as the record of decision for EPA’s

‘‘approval.’’ Commenters were

concerned about having to comply with

outdated standards while EPA was in a

prolonged review. Several commenters

suggested that the ‘‘conditionally

approved’’ status would allow new and

revised State and Tribal standards to be

used for CWA purposes unless and until

subsequently disapproved by EPA.

Alternatively, some commenters

suggested that EPA could use its

discretionary authority later on to

remedy standards that it would have

disapproved if it had had the resources

to review and approve them on time.

Conversely, a few commenters

suggested that if EPA fails to act within

90 days, the WQS should be

‘‘constructively disapproved.’’

EPA acknowledges the commenters’

concerns regarding the timeliness of

EPA’s approval action. However, the

concept of a default approval of State

and Tribal WQS submissions is not

consistent with section 303 of the CWA.

Section 303(c)(3) requires EPA to make

an affirmative finding that standards

revisions submitted to EPA are

consistent with the CWA. EPA has

responsibility to determine that State

and Tribal standards revisions are

protective of human health and the

environment. EPA must explain its

approval actions; such actions are

judicially reviewable. Any type of

default approval approach would result

in approval actions that EPA could not

justify or explain. Similarly, EPA rejects

any type of default disapproval

approach. Disapprovals trigger other

CWA requirements for the State or

authorized Tribe to rectify the

disapproval and for EPA to act if the

State or authorized Tribe takes no action

to revise the disapproved standards.

Triggering these actions by a ‘‘default’’

disapproval would cause much more

confusion than any type of potential

delay on EPA’s part. EPA believes that

section 303(c) of the CWA requires it to

make an affirmative finding on whether

or not a State or Tribal standard is

consistent with the CWA.

The commenters advocating default

approaches did so out of concern about

EPA’s ability to make timely WQS

approvals. As explained in the preamble

to the proposed rule (see 64 FR 37078),

EPA has initiated a number of activities

to improve the timeliness of its review

and approval actions. EPA will be

working closely with States and

authorized Tribes over the next year to

develop guidance for improving

coordination between EPA and States

and Tribes. Such coordination will also

involve the National Marine Fisheries

Service and the Fish and Wildlife

Service (collectively, the Services). As

explained in III.D.2., the Services have

a key role in assisting EPA in timely

WQS approval actions. In addition, as

suggested by some commenters, EPA

can always partition State or Tribal

submissions and approve the

unquestionable portions while

continuing to address any contested or

difficult issues. EPA also agrees with

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24647

comments that encouraged EPA to work

with states during their promulgation

process and to speak with one voice.

One commenter noted that feedback on

what is ‘‘approvable’’ varies depending

on which EPA office is contacted. EPA

is evaluating its internal coordination

process as part of its overall efforts to

streamline EPA review and approval of

Standards submissions. EPA will work

to ensure that its feedback is both timely

and coordinated.

2. Integration With the Endangered

Species Act

As discussed in the preamble to the

proposed rule, EPA’s approval of new

and revised State and Tribal water

quality standards is a Federal action

subject to the consultation requirements

of section 7 of the Endangered Species

Act (ESA) (see 64 FR 37078 for further

discussion). Commenters were

particularly concerned with EPA’s

ability to make timely WQS approval/

disapproval decisions in light of its ESA

obligations. Several commenters

suggested that in instances where the

delay is attributable to the ESA

consultation, EPA approve the WQS

submission ‘‘subject to’’ successful

completion of ESA consultation.

Another commenter encouraged EPA to

streamline the ESA consultation

process.

EPA agrees with commenters that, in

many instances, ESA consultation

delays EPA’s CWA approval of water

quality standards revisions. EPA and the

Services (NMFS & FWS) are engaged in

discussions to finalize the draft

Memorandum of Agreement between

the Agencies to establish a clear set of

guidelines for conducting ESA

consultations. EPA also agrees with the

comments suggesting that EPA consider

utilizing ‘‘subject to ESA’’ approvals

where ESA concerns cannot be resolved

in a timely manner. EPA is committed

to fulfilling its obligations under the

ESA, and, as articulated in the draft

MOA, will work with the Services early

in the State and Tribal standards

adoption process to ensure that the

needs of threatened and endangered

species are addressed when new or

revised standards are being

contemplated. This early coordination

should help streamline the review and

approval/disapproval process once the

standards revisions are officially

submitted to EPA for review and

approval/disapproval under the CWA.

E. Other Issues

1. Integration With TMDL/NPDES

Program

EPA advocates that States and

authorized Tribes refine their water

quality standards to more precisely

reflect site-specific conditions and local

species (see 63 FR 36741). Sometimes

such refinements take place

concurrently with the development of a

Total Maximum Daily Load (TMDL) for

a specific water body or when issuing a

National Pollution Discharge

Elimination System (NPDES) permit for

a discharge to a specific water body. In

these instances the regulatory authority

may obtain information that can be used

to more precisely define the appropriate

standard. For example, a State may be

establishing a TMDL for a water body

with a fish advisory and after reviewing

ambient water quality data realize that

a site-specific criterion is necessary to

address accelerated bio-magnification

occurring at the site. In this example,

the regulatory authority could revise the

standard concurrently with

establishment of the TMDL. By law,

TMDLs must be reviewed and approved

by EPA. The CWA specifies 30 days for

EPA to review and approve TMDLs and

60 days for EPA to review and approve

standards revisions. When EPA receives

a WQS revision to review and approve/

disapprove in conjunction with its

review and approval of a TMDL, EPA

expects to complete both reviews within

30 days which will satisfy the CWA

requirements for both actions. In these

situations, it will be particularly

important for the State or authorized

Tribe to coordinate with EPA early in

the development process to ensure

approval of the revised water quality

standard because the TMDL must be

established for the ‘‘applicable’’ water

quality standard, which is the approved

water quality standard. Similarly, in the

context of drafting an NPDES permit, a

regulatory authority may obtain

information that shows a particular

aquatic life species protected by the

current criteria is absent, and as a result,

adopt site-specific criteria that better

reflect the indigenous aquatic life. In

such instances, the regulatory authority

could adopt the site-specific criteria

concurrently with public notice of the

draft NPDES permit. In such a case, EPA

should review the site-specific criteria

during the same time frame in which it

reviews the draft permit. If EPA

disapproves the criteria, it could also

object to the permit. During the 90 day

period allowed by CWA § 402(d), the

State or authorized Tribe could then

modify the permit to reflect the

previously approved WQS, or fix the

criteria to address the disapproval and

modify the permit to reflect the newly

revised criteria. If a State or authorized

Tribe submits a draft permit based on

site-specific criteria, but does not

submit the criteria itself, EPA may

object to the permit. Again, early

coordination with EPA will expedite

review and approval when the final

standard is officially submitted to EPA.

Today’s rule applies to the Great Lake

States as well as to the rest of the nation.

In 1995, EPA promulgated the Great

Lakes Water Quality Guidance at 40

CFR Part 132. In that rulemaking, EPA,

among other things, indicated that

States and authorized Tribes may adopt

variances concurrently with

development of an NPDES permit and

have the permit reflect the variance.

Under today’s rule, such variances, like

other standards revisions, must be

approved by EPA before they are relied

on in final NPDES permits or other

CWA purposes, in the Great Lakes basin

as well as anywhere else.

2. Coordination Between Federal and

State and Tribal Processes

EPA acknowledges the concerns

expressed by some States and

authorized Tribes regarding EPA’s

ability to make approval/disapproval

decisions in the CWA time frames.

However, in addition to EPA’s efforts to

expedite its review, States and

authorized Tribes can also facilitate

more timely action by EPA. For

example, States and authorized Tribes

are encouraged to submit advance

copies of new or revised water quality

standards as soon as they are considered

final, even though the State or Tribe

may still need time to complete certain

administrative requirements (e.g.,

Attorney General certification). These

advance copies of revised standards

should be sent directly to the Regional

Water Quality Standards Coordinators

(see table in section III.E.4). Submission

of advance copies will not trigger the

CWA timeframes for EPA action;

however, it will allow EPA to initiate its

substantive review of the new or revised

standard before the complete package is

officially submitted. States and

authorized Tribes should also consider

adopting new or revised standards with

delayed effective dates, or with an

effective date keyed off of EPA approval

or the CWA 60 day timeframe for EPA

approval. All these measures will allow

closer synchronization between the

transition from one standard to another

under State or Tribal law and under the

CWA.

As a general matter, States and

authorized Tribes should also examine

their administrative and rulemaking

24648 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

procedures to identify opportunities by

which their adoption of criteria, as well

as EPA’s approval, can be streamlined.

One way to do this is through State or

Tribal adoption of a ‘‘performancebased’’ approach. A performance-based

approach relies on adoption of a process

(i.e., a criterion derivation methodology)

rather than a specific outcome (i.e.,

concentration limit for a pollutant)

consistent with 40 CFR 131.11 & 131.13.

When such a ‘‘performance-based’’

approach is sufficiently detailed and has

suitable safeguards to ensure

predictable, repeatable outcomes, EPA

approval of such an approach can also

serve as approval of the outcomes as

well. If a particular State or Tribe’s

approach is not sufficiently detailed or

lacks appropriate safeguards, then EPA

review of a specific outcome is still

necessary. However, even a more

general performance-based approach

would still help guide EPA review of

specific outcomes.

The ‘‘performance-based’’ approach is

particularly well suited to the derivation

of site-specific numeric criteria and for

interpreting narrative criteria into

quantifiable measures. Proper

construction and implementation of

such an approach can result in

consistent application of State and

Tribal narrative water quality criteria

and defensible site-specific adjustments

to numeric ambient water quality

criteria. Changes to a designated use

(including temporary changes, e.g.,

variances) do not lend themselves to a

‘‘performance-based’’ approach.

Designated use changes and variances

differ from criteria changes in that they

modify the intended level of protection.

In contrast, site specific translations of

narrative water quality criteria and sitespecific adjustments to numeric ambient

water quality criteria take additional

information into account while

protecting the designated use. As such

the intended level of protection is no

way modified. In addition, making use

changes and issuing variances must

include an evaluation of ‘‘attainability’’

of a designated use, taking into account

factors such as natural conditions or

economic and social impacts. See 40

CFR 131.10(g).

A ‘‘performance-based’’ approach

relies on the State or authorized Tribe

specifying implementation procedures

(methodologies, minimum data

requirements, and decision thresh

holds) in its water quality standards

regulation. Adopting implementation

procedures into State and Tribal

regulations establishes a structure or

decision-making framework that is

binding, clear, predictable, and

transparent. During the adoption of the

detailed procedures, all stakeholders

and EPA have an opportunity to make

sure that important technical issues or

concerns are adequately addressed in

the procedures. The State or Tribal

implementation procedures must also

consider any special needs of federally

listed threatened or endangered species

or their critical habitat. Under section 7

of the ESA, EPA would have to consult

with the Services on the detailed

implementation procedures as part of its

approval process if EPA’s approval may

affect a listed species. State and

authorized Tribal water quality

standards programs which include

appropriate performance-based

approaches for water quality criteria

could benefit the authorized Tribe or

State by better positioning them to tailor

standards to specific watersheds and

ecosystems by streamlining

administrative processes associated

with refining criteria necessary to

protect designated uses. This approach

is particularly useful for criteria which

are heavily influenced by site-specific

factors such as nutrient criteria or

sediment guidelines. Such procedures

must include a public participation step

to provide all stake-holders and the

public an opportunity to review the data

and calculations supporting the sitespecific application of the

implementation procedures. The State

or Tribe would need to maintain a

publically available, comprehensive list

of all site-by-site decisions made using

the procedures; however, such decisions

would not, as a Federal matter, have to

be codified in State or Tribal regulation.

Although the State or authorized Tribe

would not need to obtain separate EPA

approval for criteria derived through an

approved performance-based approach,

such criteria would nonetheless need to

be provided to EPA for inclusion in the

CWA WQS Docket. When EPA reviews

the results of a State or authorized

Tribes’ triennial review, EPA expects to

evaluate a representative subset of the

site-specific decisions to ensure that the

State or authorized Tribe is adhering to

the EPA approved procedure.

Since the procedures would be

adopted into State or Tribal regulation,

the State or authorized Tribe would be

bound by the decision-making

framework contained therein. Any water

quality criteria which were not derived

in accordance with the approved

implementation procedures would need

separate approval from EPA to be the

applicable CWA standard. If a State or

authorized Tribe failed to follow those

procedures and did not obtain separate

EPA approval of the criteria, EPA would

have a basis for disapproving a TMDL

or objecting to an NPDES permit for not

deriving from or complying with

applicable standards (see 40 CFR

122.44(d)). Both TMDL development

and NPDES permit issuance have

mandatory public participation, which

provides further safeguards over

implementation of a performance-based

approach.

EPA used this approach to ensure

consistency in future ambient water

quality criteria development among the

eight Great Lakes States in the Great

Lakes Initiative (see 40 CFR Part 132).

EPA, the eight Great Lake States, and

stakeholders (e.g., regulated community,

general public, environmental groups)

developed detailed criteria

methodologies that States and

authorized Tribes in the Great Lakes

basin are required to adopt and utilize

for criteria derivation. These

methodologies ensure scientific

integrity and transparency in decisionmaking among the Great Lakes States as

new or revised criteria are derived. EPA

also authorized this approach in the

National Toxics Rule (see 57 FR 60848).

States in the NTR are allowed to modify

the Federal criteria site-specifically

using EPA’s Water Effects Ratio (WER)

methodology. EPA’s WER methodology

is sufficiently detailed so that its sitespecific application is formulaic and

predictable.

In sum, the key to a ‘‘performancebased’’ WQS program is adoption of

implementation procedures of sufficient

detail, and with suitable safeguards, so

that additional oversight by EPA would

be redundant. EPA will be developing

more detailed guidance on

‘‘performance-based’’ water quality

standards programs in the near future.

3. Standards Subject to Today’s Rule

The preamble to the proposed rule

stated that State and Tribal

implementation policies and procedures

are subject to EPA review and approval/

disapproval and should be included in

the CWA WQS docket. Many

commenters claimed this exceeded

EPA’s statutory authority. Commenters

asserted that this was a change and not

appropriate because it would capture

guidance that was never intended to be

regulatory under State law. Some

commenters did acknowledge that

implementation procedures help

determine the effectiveness of the

standards.

EPA’s reference to including policies

and procedures in the CWA docket was

intended only to reflect the existing

requirements at 40 CFR 131.11 and

131.13, which have been in EPA’s

regulations since 1983. EPA’s

regulations at 40 CFR 131.11(a)(2)

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24649

provide that where a State adopts

narrative criteria for toxic pollutants to

protect designated areas, the State must

provide information identifying the

method by which the State intends to

regulate point source discharges based

on such narrative. Section 131.13

provides that, if States or authorized

Tribes include in their standards

policies generally affecting the

application and implementation of

standards (such as policies on mixing

zones, low flows, and variances), those

policies are subject to EPA review.

EPA’s intent is not to assert that all State

and Tribal guidance is regulatory, but

rather to lock in policies and procedures

that were approved as part of a

standards submission. EPA will

coordinate with State and authorized

Tribes individually to determine which

implementation policies and procedures

should be included in the CWA WQS

docket. EPA’s approval practice will

determine what is or is not ‘‘locked in’’

as a WQS, and the CWA WQS docket

will reflect that.

Some commenters were concerned

that including mixing zone procedures

in the docket would mean that sitespecific application of the mixing zone

procedure would be considered a form

of site-specific standard subject to EPA

review and approval. This is not EPA’s

intent. Mixing zone procedures must be

included in the standards because

otherwise a permit with a mixing zone

would not assure compliance with the

standards. However, once mixing zones

are authorized through such an

approved procedure, the calculation of

permit limits consistent with such

procedures does not change the water

quality standard and does not need

approval under CWA section 303(c).

Individual mixing zones are reviewable

under the NPDES process to ensure,

among other things, that all applicable

standards, including any procedures,

have been followed.

It should be noted that in the case of

variances both a State or Tribe’s

variance policy and its adoption of

specific variances are subject to EPA

review and will be included in the CWA

WQS docket. A variance is a short term,

facility-specific modification of the

underlying standard and must be

supported by a facility-specific analysis

demonstrating that one of the six

reasons at 40 CFR Part 131.10(g) apply.

Hence, each variance is a change to

standards (see 48 FR 51400).

EPA will be developing more detailed

guidance with States and authorized

Tribes on the types of modifications that

require specific approval by EPA and

the level of detail necessary to

incorporate into State and Tribal

standards. However, the bottom line is

that today’s rule does not change which

State and Tribal policies and procedures

need to be submitted for review and

approval under 40 CFR 131.11 and

131.13.

4. CWA WQS Docket

a. Proposed Rule

Under the proposal, EPA proposed

discontinuing its annual Federal

Register publication of approval actions

by deleting the annual reporting

requirement at 40 CFR 131.21(d). EPA

explained that the formation of a CWA

WQS docket would eliminate the need

for the annual Federal Register notice.

(See 64 FR 37077 for further

discussion.)

b. Major Comments and Responses

In general, most commenters

supported the establishment of a CWA

docket. Most supported the eventual

transfer to the Internet. Comments were

mixed with respect to EPA’s proposed

deletion of its annual Federal Register

notice, with some comments supporting

that and others advocating that EPA

maintain FR notices.

Comment: Keeping a paper docket is

the most effective way to make the

information available in the short term;

however, commenter supports effort to

move towards putting the information

on the Internet. There is no reason to

continue EPA’s annual Federal Register

notice of approved State and Tribal

water quality standards.

Response: EPA agrees with the

comment, and will have a paper CWA

docket available as of the effective date

of this rule. EPA recognizes that paper

CWA WQS dockets in the Region

require some effort to access (e.g., phone

calls, mailings), though such effort is

not any more burdensome than what

would be required to obtain a copy from

the State or authorized Tribe. Actually,

it would be more efficient because the

CWA WQS docket also contains any

applicable Federal standards (e.g.,

Federal criteria contained in the

National Toxics Rule, 40 CFR Part

131.36) whereas the State or authorized

Tribe may or may not supply applicable

Federal standards. EPA agrees with the

comment that the annual Federal

Register notice of approved State and

Tribal water quality standards is

unnecessary in light of the CWA WQS

docket. The CWA WQS docket is far

more informative than a listing of EPA

approval actions. In addition, the CWA

WQS docket will be updated on a

continual basis as opposed to annually

EPA also agrees with the commenter

that publication on the Internet would

increase access to the CWA WQS

docket. EPA has begun work on an

electronic version of the CWA WQS

docket and is designing a website for

easy public access. EPA is designing the

electronic CWA WQS docket to be user

friendly. For example, users will be able

to perform basic text searches to locate

specific provisions. Over time, as EPA

receives feedback from users of the

electronic CWA WQS docket, EPA will

revise the system to support increased

search capabilities and a higher degree

of organization and automation. EPA

expects to publish the first version of

the electronic docket on the Internet in

the Spring of 2001. EPA will announce

the availability of the electronic docket

in the Federal Register at that time. The

paper docket will be available in the

meanwhile.

Comment: EPA’s CWA WQS docket

should warn people there may be other

applicable standards (CWA section 510

or groundwater) which need to be

addressed and direct them to the State

or authorized Tribe.

Response: EPA agrees. The CWA

WQS docket is intended to capture

applicable water quality standards

adopted pursuant to CWA section

303(c). EPA recognizes that there may

be other requirements applicable to a

waterbody under State or Tribal law.

EPA’s CWA WQS docket will identify

the scope of the docket and include

instructions for contacting the

appropriate State or Tribal official for

information regarding the applicability

of additional State or Tribal

requirements.

Comment: EPA should publish the

initial CWA WQS docket in the Federal

Register to facilitate public comment

and scrutiny.

Response: EPA disagrees. EPA

assembled a draft CWA WQS docket

and solicited public comments on its

content as part of the proposal for

today’s final rule (see 64 FR 37077). In

addition, EPA consulted with States and

authorized Tribes individually to

confirm the contents of EPA’s draft

CWA WQS docket. As part of finalizing

the draft CWA WQS docket, EPA is

working with States and authorized

Tribes to include any State or Tribal

revisions that have occurred since the

proposal. EPA believes that the current

CWA WQS docket contains all

applicable standards that have been

adopted, are in effect, and have been

submitted to EPA for review and

approval/disapproval. Maintaining the

docket will be an ongoing process for

EPA because States and authorized

Tribes will continue to revise their

standards as part of the triennial review

process, and in order to keep up with

24650 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

scientific advances. The public is

encouraged to provide comments or

questions on the contents of the docket

at any time. The utility of the docket

depends on its completeness and

accuracy. Additional comments or

questions regarding the contents of the

CWA WQS docket should be directed to

the appropriate Regional contact listed

in section III.E.4.c. below.

Comment: EPA should wait until the

electronic CWA WQS docket is up and

running before discontinuing the annual

Federal Register notice of approvals.

Response: EPA disagrees. EPA

believes its Federal Register notice of

approvals is redundant with the paper

CWA WQS docket. The CWA WQS is

more informative and comprehensive

than the Federal Register notice of

approvals. However, there will be one

additional Federal Register notice

reporting all of the approval actions that

occurred up to May 30, 2000. EPA

expects to publish this last report later

this summer.

c. Final Rule

Today’s final rule deletes EPA’s

annual reporting requirement of

approval actions. As explained above,

EPA believes that the formation of a

CWA WQS docket eliminates the need

for the annual Federal Register notice.

Anyone interested in viewing the docket

for a particular State or authorized Tribe

should contact one of the EPA Regional

offices listed below to make

arrangements.

EPA is in the process of converting

this hardcopy docket into an electronic

format so that it can be published on the

Internet. EPA is designing the electronic

CWA WQS docket to be user friendly.

For example, users will be able to

perform basic text searches to locate

specific provisions. Over time, as EPA

receives feedback from users of the

electronic CWA WQS docket, EPA will

revise the system to support increased

search capabilities and a higher degree

of organization and automation. EPA

expects to publish the first version of

the electronic docket on the Internet in

the Spring of 2001. EPA will announce

the availability of the electronic docket

in the Federal Register at that time. In

the meantime, hardcopy CWA WQS

dockets for local State and Tribal

standards are available in the following

EPA Regional offices during normal

business hours.

State EPA regional office EPA contact

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.EPA Region 1, 1 Congress Street, Suite 1100,

CWQ, Boston, MA 02114–2023.

Bill Beckwith, 617–918–1544.

New Jersey, New York, Puerto Rico, Virgin Islands EPA Region 2, 290 Broadway, New York, NY

10007.

Wayne Jackson, 212–637–3807.

Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia.EPA Region 3, 1650 Arch Street, Philadelphia,

PA 19103–2029.

Denise Hakowski, 215–814–5726.

Alabama, Florida, Georgia, Kentucky, Mississippi,

North Carolina, South Carolina, Tennessee.

EPA Region 4, Water Division—15th Floor, Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, GA 30303.Fritz Wagener, 404–562–9267.

Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin.EPA Region 5, Water Division, 77 West Jackson

Boulevard, Chicago, IL 60604–3507.

David Pfeifer, 312–353–9024.

Arkansas, Louisiana, New Mexico, Oklahoma,

Texas.

EPA Region 6, Water Division, 1445 Ross Avenue, First Interstate Bank Tower, Dallas, TX

75202.

Russell Nelson, 214–665–6646.

Iowa, Kansas, Missouri, Nebraska .......................... EPA Region 7, 726 Minnesota Avenue, Kansas

City, KS 66101.

Ann Jacobs, 913–551–7930.

Colorado, Montana, North Dakota, South Dakota,

Utah, Wyoming.

EPA Region 8, 999 18th Street, Suite 500, Denver, CO 80202–2466.Bill Wuerthele, 303–312–6943.

Arizona, California, Hawaii, Nevada, American

Samoa, Guam.

EPA Region 9, Water Division, 75 Hawthorne

Street, San Francisco, CA 94105.

Phil Woods, 415–744–1997.

Alaska, Idaho, Oregon, Washington ........................ EPA Region 10, Water Division, 1200 Sixth Avenue, Seattle, WA 98101.Lisa Macchio, 206–553–1834.

IV. Regulatory Flexibility Act as

Amended by the Small Business

Regulatory Enforcement Fairness Act

The 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 today’s rule on small entities, small

entity is defined as: (1) A small business

according to RFA default definitions for

small business (based on SBA size

standards); (2) a small governmental

jurisdication 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 today’s final 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.

Under the CWA water quality

standards program, States (and Tribes)

must adopt water quality standards for

their waters that must be submitted to

EPA for approval. These State or Tribal

standards (or EPA-promulgated

standards) are implemented through

various water quality control programs,

including the NPDES program which

limits discharges to navigable waters in

compliance with an EPA permit or

permit issued under an approved State

or Tribal NPDES program. The CWA

requires that all NPDES permits include

any limits on discharges that are

necessary to meet State or Tribal water

quality standards. A State or Tribe has

discretion in deciding how to achieve

compliance with its water quality

standards and in developing discharge

limits as needed to meet the standards.

For example, in circumstances where

there is more than one discharger to a

water body that is subject to a water

quality standard, a State or Tribe has

discretion in deciding which

dischargers will be subject to permit

discharge limits necessary to meet the

revised standards.

As explained earlier, this rule merely

defers the effectiveness of State or Tribal

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24651

water quality standards pending EPA

approval. Under existing NPDES

regulations, where a State or Tribe has,

as a matter of State or Tribal law,

modified an existing water quality

standard, a State or Tribal Authority

may not modify existing NPDES permit

limits to take account of the revised

standard until EPA has approved the

standard. As a result, until EPA

approves the revised standard and a

State or Tribe has decided how it will

implement the revised standard among

the dischargers on that water body, each

discharger must continue to comply

with its permit limits that were

designed to meet the more stringent

standard. Moreover, just as under the

previous rule, there is no certainty that,

even after EPA approval of the revised

standard, the permitting agency will

necessarily amend a particular

discharger’s permit to modify its

limitation. Instead, a State or Tribe may

choose to allocate the loading associated

with the less stringent standard to a new

or different discharger. Given these

circumstances, the impact of today’s

rule on individual dischargers will

depend on State or Tribal actions that

EPA neither controls nor can predict.

Courts have consistently held that the

RFA imposes no obligation on an

agency to prepare a small entity analysis

of effects on entities it does not regulate.

Motor & Equip. Mrfrs. Ass’n v. Nichols,

142 F.3d 449, 467 & n.18 (D.C. Cir.

1998)(quoting United States Distribution

Companies v. FERC, 88 F.3d 1105, 1170

(D.C. Cir. 1996); see also American

Trucking Association, Inc. v. EPA, 175

F.3d 1027 (D.C. Cir. 1999). This final

rule will have a direct effect only on

States and authorized Tribes which are

not small entities under the RFA. The

rule establishes requirements that are

applicable to water quality standards

submitted by States and authorized

Tribes to EPA for approval. The rule

defers the effective date for CWA

purposes of any new or less-stringent,

revised water quality standard until

EPA has approved the standard.

Individual dischargers, including small

entities, are not directly subject to the

requirements of the rule. Moreover,

because of State and Tribal discretion in

adopting and implementing their water

quality standards, EPA cannot assess the

extent to which the promulgation of this

rule may subsequently affect any

dischargers, including small entities.

Consequently, certification under

section 605(b) is appropriate. State of

Michigan, et al. v. U.S. Environmental

Protection Agency, No. 98–1497 (D.C.

Cir. Mar. 3, 2000), slip op. at 41–42.

V. 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 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.

Today’s 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. The final rule does

not affect the process by which State or

Tribal water quality standards are

adopted under State or Tribal law, but

simply specifies when a State or Tribal

adoption will be recognized as the

applicable water quality standard for

general CWA purposes. The rule

imposes no enforceable duty on any

State, local or Tribal governments or the

private sector. Thus, today’s rule is not

subject to the requirements of sections

202 and 205 of the UMRA.

EPA has determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. EPA’s final rule will

only address a single administrative

aspect of the water quality standards

approval process (i.e., the timing of the

‘‘effectiveness’’ of State or Tribal

standards under the CWA). There will

be no revisions to existing submission

requirements and no revisions to EPA’s

standards for review. Thus, this final

rule is not subject to the requirements

of section 203 of UMRA.

VI. Regulatory Planning and Review,

Executive Order 12866

Under Executive Order 12866, (58 FR

51735 (October 4, 1993)) the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to 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 rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

VII. Federalism, Executive Order 13132

Executive Order 13132, entitled

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

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

24652 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

Under section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism 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 State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This final rule 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 merely

specifies when new or revised State or

Tribal-adopted standards will be

recognized as the applicable WQS for

CWA purposes, as mandated by section

303(c)(3) of the CWA. It does not

address the process by which States and

Tribes adopt standards, nor does it alter

the grounds for approving or

disapproving such new or revised

standards. States and Tribes continue to

have the primary responsibility for

deciding when and in what way to

revise their standards. If a State or Tribe

fails to promulgate a needed standard or

to revise a standard which has been

disapproved by EPA, EPA will, as under

the previous rule, exercise its authority

to promulgate a Federal standard. This

rule will not impose substantial direct

compliance costs on State or local

government, nor will it preempt state

law. Thus, the requirements of section

6 of the Executive Order do not apply

to this rule.

Although section 6 of Executive Order

13132 does not apply to this rule, EPA

did consult with representatives of State

and local governments early in the

process of developing the proposed

regulation to permit them to have

meaningful and timely input into its

development. Since the court’s ruling in

1997, EPA has met with State

government representatives on several

occasions in various forums and

discussed implications for State

programs. From those discussions, EPA

learned that States are primarily

concerned with EPA streamlining its

review and approval process to avoid

delays after this rule goes final. EPA

believes that today’s rule is necessary to

conform Part 131 to the court’s opinion

and to section 303(c)(3), but agrees that

streamlining the review and approval

process will facilitate implementation of

the rule. EPA has already taken steps to

reduce the backlog pending at the time

of proposal. In addition, EPA is

considering modifying its regulations to

clarify Federal WQS requirements in

greater detail (see 63 FR 36742), and at

a minimum will be jointly developing

with State representatives guidance to

improve the current State and Tribal

adoption and EPA review and approval

process. EPA believes that, once

completed, this guidance will inform

EPA Regional offices and States on how

to get concerns identified and resolved

early in the process so that, when

revised State WQS are submitted to

EPA, there are no unexpected issues and

EPA can act in a timely fashion.

VIII. Consultation and Coordination

With Indian Tribal Governments,

Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s final rule does not

significantly or uniquely affect the

communities of Indian tribal

governments, nor does it impose

substantial direct compliance costs on

them. Today’s final rule only addresses

a single administrative aspect of the

WQS approval process (i.e., the timing

of the ‘‘effectiveness’’ of State and Tribal

WQS under the CWA). There will be no

revisions to existing submission

requirements and no revisions to EPA’s

standards for review. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

IX. Paperwork Reduction Act

This action requires no new

information collection activities. Thus,

this rule is not subject to the Paperwork

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

X. Protection of Children From

Environmental Health Risks and Safety

Risks, Executive Order 13045

Executive Order 13045: ‘‘Protection of

Children from Environmental health

Risks and Safety Risks’’ (62FR19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. This final

rule is not subject to Executive Order

13045 because it is not economically

significant as defined under Executive

Order 12866. Further, it does not

concern an environmental health or

safety risks that EPA has reason to

believe may have a disproportionate

effect on children. This rule merely

defers the effectiveness of State or Tribal

water quality standards pending EPA

approval.

XI. National Technology Transfer and

Advancement Act

As noted in the proposed rule, section

12(d) of the National Technology

Transfer and Advancement Act of 1995

(‘‘NTTAA’’), Public Law 104–113,

section 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 final rule does not involve

technical standards. Therefore, EPA did

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24653

not consider the use of any voluntary

consensus standards.

XII. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as amended 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. 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 May 30, 2000.

List of Subjects in 40 CFR Part 131

Environmental protection, Indianslands, Intergovernmental relations,

Water pollution control, Water quality

standards.

Dated: March 30, 2000.

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 C—[Amended]

2. Existing 131.21 is amended by

revising paragraphs (c) and (d) and by

adding paragraphs (e), and (f) to read as

follows:

§ 131.21 EPA review and approval of water

quality standards.

* * * * *

(c) How do I determine which water

quality standards are applicable for

purposes of the Act? You may

determine which water quality

standards are applicable water quality

standards for purposes of the Act from

the following table:

If— Then— Unless or until— In which case—

(1) A State or authorized Tribe has

adopted a water quality standard

that is effective under State or

Tribal law and has been submitted to EPA before May 30,

2000 . . .

. . . the State or Tribe’s water quality standard is the applicable

water quality standard for purposes of the Act...

. . . EPA has promulgated a more

stringent water quality standard

for the State or Tribe that is in

effect...

. . . the EPA-promulgated water

quality standard is the applicable water quality standard for

purposes of the Act until EPA

withdraws the Federal water

quality standard.

(2) A State or authorized Tribe

adopts a water quality standard

that goes into effect under State

or Tribal law on or after May 30,

2000 . . .

. . . once EPA approves that water

quality standard, it becomes

the applicable water quality

standard for purposes of the

Act . . .

. . . EPA has promulgated a more

stringent water quality standard

for the State or Tribe that is in

effect...

. . . the EPA promulgated water

quality standard is the applicable water quality standard for

purposes of the Act until EPA

withdraws the Federal water

quality standard.

(d) When do I use the applicable

water quality standards identified in

paragraph (c) above?

Applicable water quality standards for

purposes of the Act are the minimum

standards which must be used when the

CWA and regulations implementing the

CWA refer to water quality standards,

for example, in identifying impaired

waters and calculating TMDLs under

section 303(d), developing NPDES

permit limitations under section

301(b)(1)(C), evaluating proposed

discharges of dredged or fill material

under section 404, and in issuing

certifications under section 401 of the

Act.

(e) For how long does an applicable

water quality standard for purposes of

the Act remain the applicable water

quality standard for purposes of the

Act?

A State or authorized Tribe’s

applicable water quality standard for

purposes of the Act remains the

applicable standard until EPA approves

a change, deletion, or addition to that

water quality standard, or until EPA

promulgates a more stringent water

quality standard.

(f) How can I find out what the

applicable standards are for purposes of

the Act?

In each Regional office, EPA

maintains a docket system for the States

and authorized Tribes in that Region,

available to the public, identifying the

applicable water quality standards for

purposes of the Act.

[FR Doc. 00–8536 Filed 4–26–00; 8:45 am]

BILLING CODE 6560–50–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1 and 20

[CC Docket No. 99–301; FCC 00–114]

Local Competition and Broadband

Reporting; Correction

AGENCY: Federal Communications

Commission.

ACTION: Final rule; correction.

SUMMARY: The Federal Communications

Commission published in the Federal

Register of April 12, 2000 (65 FR 19675)

final rules in 47 CFR 1, Subpart U,

concerning data collection. As such, the

document, as published, inadvertently

assigned portions of the final rules to

subpart U that already exists. The

purpose of this correction is to reassign

the rules to a new subpart V.

DATES: Effective April 27, 2000.

FOR FURTHER INFORMATION CONTACT:

Gregory Guice, Industry Analysis

Division, Common Carrier Bureau at

(202) 418–0095.

SUPPLEMENTARY INFORMATION: The

Federal Communications Commission

published a report and order and final

rules in the Federal Register of April 12,

2000 (65 FR 19675). As published, the

final rules, § 1.6000 through § 1.6002

inadvertently assigned the final rules to

an existing subpart. This correction

redesignates the subpart U as subpart V.

We further make conforming edits to

§ 20.15.

In rule FR Doc. 00–9187 published on

April 12, 2000 (65 FR 19675), make the

following corrections:

1. On page 19684, in the third

column, amendatory instruction 2 of

Part 1—Practice and Procedures,