[Federal Register Volume 60, Number 244 (Wednesday, December 20, 1995)]
[Proposed Rules]
[Pages 65614-65616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30985]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-5399-8]


Proposed Removal of Federal Water Quality Standards for Surface 
Waters of the Sacramento River, San Joaquin River, and San Francisco 
Bay and Delta of the State of California

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: In December 1994, under the authority of the Clean Water Act 
(CWA), the Environmental Protection Agency (EPA) promulgated a rule 
establishing four sets of water quality criteria to protect the 
designated uses for the surface waters of the Sacramento River, San 
Joaquin River, and San Francisco Bay and Delta of the State of 
California (Bay/Delta). Subsequent to this promulgation, the State of 
California adopted water quality standards for the Bay/Delta and 
submitted them to EPA for approval. On September 26, 1995, the Regional 
Administrator for EPA Region IX approved the state water quality 
standards as protective of the designated uses for the relevant 
waterbodies. Currently, the State of California is in the process of 
implementing these state-adopted and EPA-approved water quality 
standards through a state water rights hearing 

[[Page 65615]]
process. Accordingly, EPA's promulgated water quality standards are no 
longer needed to meet the requirements of the Clean Water Act. 
Therefore, EPA proposes to remove the rule.

DATES: Comments on this proposal will be accepted until March 19, 1996.

ADDRESSES: Comments should be addressed to Palma Risler, Water 
Management Division, Environmental Protection Agency, 75 Hawthorne 
Street, San Francisco, California 94105.

FOR FURTHER INFORMATION CONTACT: Palma Risler, Water Management 
Division, Environmental Protection Agency, 75 Hawthorne Street, San 
Francisco, California 94105, 415-744-2017. The public record for this 
rulemaking is available through this contact at this same address.

SUPPLEMENTARY INFORMATION:

Background

    In December 1994, under the authority of section 303 of the CWA, 
EPA promulgated a rule establishing four sets of water quality criteria 
to protect the designated uses for the surface waters of the Sacramento 
River, San Joaquin River, and San Francisco Bay and Delta of the State 
of California (Bay/Delta)(60 FR 4664, January 24, 1995). These criteria 
consisted of estuarine habitat criteria (consisting of a salinity 
requirement measured at three different locations in Suisun Bay for a 
specified number of days during the critical spring months), fish 
migration criteria (consisting of an indexed value representing 
successful fish migration on the Sacramento River and the San Joaquin 
River), fish spawning criteria on the lower San Joaquin River 
(consisting of a salinity requirement measured at various points in 
April and May), and narrative criteria protecting the brackish tidal 
marshes in Suisun Marsh. A description of these criteria are provided 
in the preamble to the final rule and in the rulemaking record.
    Prior to federal promulgation of the water quality standards for 
the Bay/Delta, EPA, the Bureau of Reclamation and Fish and Wildlife 
Service of the U.S. Department of Interior, and the National Marine 
Fisheries Service of the U.S. Department of Commerce worked with the 
State of California to attempt to resolve the water quality issues in 
the Bay/Delta underlying EPA's rulemaking. This effort led to an 
agreement, informally called the ``Bay Delta Accords'' signed by the 
federal agencies, California state agencies, and interested 
stakeholders. These Bay Delta Accords, signed by all the parties in 
December 1994, articulate both substantive measures and processes to 
protect the Bay/Delta estuary, and laid out the framework for the 
adoption, review, and approval of the new State standards.
    On May 22, 1995, the California State Water Resources Control Board 
adopted water quality standards for the Bay/Delta in its water quality 
control plan (1995 WQCP). After these revised standards were approved 
by the California Office of Administrative Law in accordance with 
California law, the revised standards were submitted to EPA for its 
review under section 303(c) of the CWA on July 27, 1995. On September 
26, 1995, the EPA Regional Administrator for Region IX approved these 
standards as protective of the designated uses for the Bay/Delta. The 
reasons for this approval are set forth in the approval letter and are 
supplemented by additional information in the rulemaking record. Both 
the approval letter and this supporting information are included in the 
public record for this rulemaking.
    The CWA gives the states primary responsibility for adopting water 
quality standards. Throughout the rulemaking process to promulgate 
federal water quality standards for the Bay/Delta, EPA has maintained 
that it would withdraw the federal standards if the State adopts and 
submits standards to the Agency that meet the requirements of the Act. 
EPA also indicated this intent in the Bay Delta Accords.
    EPA recognizes that with the exception of the Suisun Bay narrative 
criteria,<SUP>1 the State's 1995 WQCP provisions are not precisely 
identical to the federal promulgation. Nevertheless, for the reasons 
set forth in EPA's approval, the Technical Support Memorandum dated 
September 21, 1995, underlying the approval, and this rulemaking 
record, EPA found that the provisions in the 1995 WQCP protect the 
designated uses of the estuary and otherwise meet the requirements of 
the CWA. The state is currently implementing these standards. 
Accordingly, the EPA rule is no longer needed to meet the requirements 
of the CWA, and EPA proposes to remove the rule at 40 CFR 131.37.

    \1\ The State's 1995 WQCP includes a description of ``beneficial 
uses'' of the Bay/Delta waters and a set of ``objectives'' that 
protect those beneficial uses. In its review of the 1995 WQCP, and 
in keeping with past practice, EPA is treating the State's 
beneficial uses and objectives as the ``designated uses'' and 
``criteria'' required under the federal Clean Water Act. To avoid 
confusion, this document will generally use the federal terms 
``designated uses'' and ``criteria.''
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    EPA understands that the 1995 WQCP is the subject of state court 
litigation raising both procedural and substantive challenges to the 
plan. Although EPA believes that the State Board should ultimately 
prevail in this litigation, there is always a possibility in such 
litigation for adverse court actions affecting the 1995 WQCP. Should 
EPA proceed to final withdrawal of the federal water quality standards 
as proposed in this notice, and the 1995 WQCP is subsequently rejected 
or remanded, there would be no water quality standards in effect in 
California carrying out the Bay Delta Accords. EPA intends to work with 
the State so that if this situation were to arise, the requirements of 
the Clean Water Act and the purposes of the Bay Delta Accords are 
achieved.

Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866 (56 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to all the requirements of the order (i.e, 
Regulatory Impact Analysis and review by the Office of Management and 
Budget). Under section 3(f), the order defines ``significant'' as those 
actions likely to lead to a rule: (1) Having an annual effect on the 
economy of $100 million or more, or adversely and materially affecting 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities (also known as ``economically 
significant''); (2) creating serious inconsistency or otherwise 
interfering with an action taken or planned by another agency; (3) 
materially altering the budgetary impacts of entitlements, grants, user 
fees, or loan programs; or (4) raising novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in this order. Pursuant to the terms of this 
order, EPA has determined that the withdrawal of this rule would not be 
``significant.''

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is 
certifying that a withdrawal of this rule would not have significant 
impact on a substantial number of small businesses.

C. Paperwork Reduction Act

    There are no information collection requirements associated with 
the withdrawal of this rule that are covered under the provisions of 
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. 

[[Page 65616]]


D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
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.
    Today's proposal contains no Federal mandates under the regulatory 
provisions of Title II of the UMRA for State, local, or tribal 
governments or the private sector. In fact, removing the federal water 
quality standards for the Bay/Delta will facilitate the State of 
California's implementation of the state adopted and EPA-approved water 
quality standards for the Bay/Delta.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control, Water quality standards, Water quality criteria.

    Dated: December 14, 1995.
Carol M. Browner,
Administrator.
    Part 131 of title 40 of the Code of Federal Regulations is proposed 
to be amended as follows:

PART 131--[AMENDED]

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

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


Sec. 131.37  [Removed and reserved]

    2. Section 131.37 is removed and reserved.
[FR Doc. 95-30985 Filed 12-19-95; 8:45 am]
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