20686 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 131

[FRL–5467–9]

Water Quality Standards for Surface

Waters in Arizona

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This rule establishes water

quality standards applicable to waters of

the United States in the State of

Arizona. EPA is promulgating this rule

pursuant to a court order in Defenders

of Wildlife v. Browner (Docket No. Civ.

93–234 TUC ACM). The rule designates

fish consumption as a use for certain

waters, and requires implementation of

a monitoring program regarding

mercury’s effects on wildlife. On

January 29, 1996, EPA published a

proposed rule that included other

provisions which are not being

promulgated as part of today’s rule

because, after EPA’s proposal, the

Arizona Department of Environmental

Quality adopted revised regulations and

policies in those areas which EPA

Region 9 has determined are in

accordance with the Clean Water Act.

EFFECTIVE DATE: June 6, 1996.

ADDRESSES: This action’s administrative

record is available for review and

copying at the Water Management

Division, EPA, Region 9, 75 Hawthorne

St., San Francisco, CA 94105. For access

to the docket materials, call (415) 744–

1978 for an appointment. A reasonable

fee will be charged for copies.

FOR FURTHER INFORMATION CONTACT: Gary

Wolinsky, Permits and Compliance

Branch, W–5, Water Management

Division, EPA, Region 9, 75 Hawthorne

St., San Francisco, CA 94105, telephone:

415 744–1978.

SUPPLEMENTARY INFORMATION:

A. Regulated Entities

Entities potentially regulated by this

action are those discharging pollutants

to waters of the United States in

Arizona. Regulated categories and

entities include:

Category Examples of regulated entities

Industry ...................... Industries discharging mercury to surface waters in Arizona, or discharging pollutants to particular surface waters in Arizona listed in sec. 131.31(b) of the rule.

Municipalities ............. Publicly-owned treatment works discharging mercury to surface waters in Arizona, or discharging pollutants to particular

surface waters listed in sec. 131.31(b) of the rule.

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. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility is regulated by this action, you

should examine the list of waterbodies

in section 131.31(b) of this rule, and

examine 40 CFR 131.2 which describes

the purpose of water quality standards

such as those established in this rule. If

you have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

B. Background

Under section 303 (33 U.S.C. 1313) of

the Clean Water Act (CWA), states are

required to develop water quality

standards for waters of the United States

within the state. Section 303(c) provides

that a water quality standard shall

include a designated use or uses to be

made of the water and criteria necessary

to protect those uses. States are required

to review their water quality standards

at least once every three years and, if

appropriate, revise or adopt new

standards. 33 U.S.C. 1313(c). States are

required to submit the results of their

triennial review of their water quality

standards to EPA. EPA is to approve or

disapprove any new or revised

standards. Id.

States may include in their standards

policies generally affecting the

standards’ application and

implementation. See 40 CFR 131.13.

These policies are subject to EPA review

and approval. 40 CFR 131.6(f), 40 CFR

131.13.

Section 303(c)(4) of the CWA

authorizes EPA to promulgate water

quality standards that supersede

disapproved State water quality

standards, or in any case where the

Administrator determines that a new or

revised water quality standard is needed

to meet the CWA’s requirements.

In September 1993, EPA, Region 9,

disapproved portions of Arizona’s

standards pursuant to section 303(c) of

the CWA and 40 CFR 131.21. The

portions of Arizona’s standards

disapproved in September 1993 relate

to: the exclusion of mining-related

impoundments from water quality

standards; the absence of ‘‘fish

consumption’’ as a designated use for

certain water bodies; the absence of

implementation procedures for the

State’s narrative nutrient standard; the

absence of biomonitoring

implementation procedures for the

State’s narrative toxicity criterion; and

the inclusion of practical quantitation

limits (PQLs) in Arizona’s standards. In

April 1994, EPA, Region 9, also

disapproved Arizona’s lack of water

quality criteria protective of wildlife for

mercury.

On November 1, 1995, the United

States District Court for the District of

Arizona ordered EPA to prepare and

publish proposed regulations setting

forth revised or new water quality

standards for those standards

disapproved in September 1993 and

April 1994 within 90 days. Defenders of

Wildlife v. Browner, Docket No. Civ 93–

234 TUC ACM.

On December 29, 1995, the Arizona

Department of Environmental Quality

(ADEQ) published proposed revisions to

its standards. 1 Ariz. Admin. Reg. 2811.

Consistent with the Court’s order, on

January 29, 1996, EPA published a

Federal Register notice proposing

standards related to the mining

exclusion, fish consumption designated

use, PQLs, and implementation policies

and procedures. 61 FR 2766. The notice

also identified, and sought comment on,

policies that EPA, Region 9, intended to

use to implement State narrative criteria

as they relate to toxicity, nutrients, and

mercury.

The Court order in Defenders of

Wildlife directs EPA to promulgate final

water quality standards 90 days after

EPA proposes such standards unless

Arizona has adopted revised or new

water quality standards which EPA

determines are in accordance with the

CWA. In January 1996, ADEQ adopted

implementation procedures for the

State’s narrative nutrient criteria. In

April 1996, ADEQ adopted

implementation procedures for the

State’s narrative toxic criteria. On April

26, 1996, EPA, Region 9, approved

Arizona’s implementation procedures

for the State’s narrative nutrient and

toxic criteria. Because EPA has
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20687

determined that Arizona has addressed

EPA’s 1993 disapproval action regarding

the absence of appropriate

implementation procedures for toxicity

and nutrients through the adoption of

procedures that are in accordance with

the Act, EPA is not promulgating

provisions in the final rule related to

these implementation procedures.

ADEQ adopted revisions to its

standards on March 22, 1996, and, after

obtaining the approval of the State’s

Regulatory Review Council, filed

revisions to its standards with Arizona’s

Secretary of State on April 24, 1996.

ADEQ’s rulemaking repealed the mining

related provision (R18–11–103.2)

disapproved by EPA, Region 9, in

September 1993, and established a

revised exemption related to mining

impoundments at R18–11–102. In

addition, ADEQ’s rulemaking added the

fish consumption use to most of the

waters which would have been

designated with the fish consumption

use under EPA’s proposal. The State’s

rulemaking also deleted the appendix

which prescribed PQLs from the State’s

water quality standards regulations. On

April 26, 1996, EPA, Region 9 approved

these revised regulations thereby

removing the need to promulgate a

Federal regulation addressing these

issues.

ADEQ has also participated, with

EPA, Region 9, and the U.S. Fish and

Wildlife Service, in the development of

an interim approach to protect

predatory wildlife from mercury until

appropriate numeric criteria can be

developed. In conjunction with

Arizona’s priority pollutant program,

ADEQ, in cooperation with the Arizona

Game and Fish Department, the U.S.

Fish and Wildlife Service, and EPA will

conduct a tissue monitoring program to

assess the magnitude and extent of

mercury bioaccumulation in the prey

base of the bald eagle and other fisheating birds in Arizona. The monitoring

program identifies further actions

related to sampling, source

identification and remedy selection

which the agencies will undertake if

mercury levels in fish are found above

a specified action level. Because pursuit

of this monitoring program is an

important component in addressing the

problem of mercury contamination in

Arizona waters, EPA has included the

proposed regulatory provision related to

mercury in the final rule. In addition,

EPA is promulgating the fish

consumption use designation for

waterbodies identified in EPA’s

proposal for which the State did not

adopt the fish consumption use

designation. As explained more fully

below, should EPA decide to approve

‘‘use attainability analyses’’ recently

submitted by Arizona, EPA will proceed

expeditiously to withdraw the revised

use designations contained in today’s

rule.

C. Summary of Final Rule and

Response to Major Comments

A description of EPA’s final action,

and a summary of major comments

regarding the proposal and EPA’s

response, are set forth below. Additional

comments and responses to comments

are in the administrative record.

1. ‘‘Fish Consumption’’ Use

Arizona has designated several uses

for its waters, including uses defined as

‘‘fish consumption’’, ‘‘aquatic and

wildlife (cold water fishery)’’, ‘‘aquatic

and wildlife (effluent dominated

water)’’, ‘‘aquatic and wildlife

(ephemeral)’’, and ‘‘aquatic and wildlife

(warm water fishery)’’. See, R–18–11–

101, and Appendix B of Title 18,

Chapter 11, Article 1, of Arizona

Administrative Rules and Regulations.

In September 1993, EPA disapproved

the lack of the ‘‘fish consumption’’ (FC)

use for water bodies which Arizona

designated as having an ‘‘aquatic and

wildlife’’ use. For the standards to be

approvable, EPA stated that the State

must either revise its standards to

include the FC use, or submit ‘‘use

attainability analyses’’ (UAAs), for the

subject waters. A UAA is a scientific

assessment showing whether it is

feasible to attain a particular use. See,

40 CFR 131.3(g) and 131.10(j).

ADEQ subsequently completed UAAs

showing that it need not designate the

FC use for those effluent dominated or

ephemeral waters which it had not

already designated as having the FC use.

EPA approved those UAAs in November

1995.

In December 1995, ADEQ proposed to

revise its standards to add the FC use to

waters within the State which have the

‘‘aquatic and wildlife (cold water

fishery)’’ or ‘‘aquatic and wildlife (warm

water fishery)’’ use. See, 1 Ariz. Admin.

Reg. 2811 (Dec. 29, 1995), proposed R–

18–11–104 and Appendix B of Title 18,

Chapter 11, Article 1, of Arizona

Administrative Rules and Regulations.

In January 1996, EPA proposed to

designate the fish consumption use for

those waters which Arizona had

designated as having an ‘‘aquatic and

wildlife’’ use, in those cases where the

requirements for completing a UAA had

not been met. The affected stream

segments and water bodies were listed

in proposed section 131.31(c). Each of

the affected waters were, at the time of

EPA’s proposal, designated by Arizona

as having the ‘‘aquatic and wildlife

(cold water fishery)’’ or ‘‘aquatic and

wildlife (warm water fishery)’’ use.

With the exception of fifteen

waterbodies, Arizona’s April 1996 final

rulemaking established the FC use for

all the waterbodies subject to EPA’s

proposal.

EPA is not promulgating a Federal

rule designating the FC use for those

waters which now have that designated

use under Arizona’s rules. In addition,

EPA is not promulgating a Federal rule

designating the FC use for Quarter

Circle Bar Tank. EPA has determined

that that waterbody is located within the

boundaries of the Navajo Reservation

and this rulemaking only applies to

waters within the jurisdiction of the

State of Arizona. The spelling of two

waterbodies has been corrected in the

final rule.

On April 3 and April 10, 1996, ADEQ

submitted UAAs in support of its

determination not to designate the FC

use for eleven of the fourteen State

waterbodies listed in EPA’s proposal

which did not receive the FC use

designation under Arizona’s April 1996

rulemaking. EPA is currently reviewing

the analyses provided by the State. In

accordance with Region 9 practice in

this area, the Region has also sent out

the new analyses for public review and

comment to persons and organizations

with interests related to water quality

standards determinations in Arizona.

EPA has asked for comments by May 15,

1996. ADEQ intends to submit a UAA

in support of its determination not to

designate the FC use for the three

remaining waterbodies (Davidson

Canyon and Tinaja Wash in the Santa

Cruz River Basin, and Chase Creek in

the Upper Gila River Basin) listed in

EPA’s proposed rule. EPA, Region 9,

will send out that UAA for public

review and comment.

Because EPA is under court order to

promulgate this regulation by the end of

April, and the State submitted UAAs

with insufficient time for the Agency to

adequately review the documentation

and solicit public comment prior to its

court-ordered deadline, EPA is

promulgating the fish consumption use

designation for waterbodies identified

in EPA’s proposal which do not now

have the FC designated use. Should EPA

approve, after completing its review of

the UAAs and public comments, the

State’s determination that attaining the

FC use is not feasible with respect to a

waterbody listed in today’s rule, EPA

will proceed expeditiously to withdraw

the revised use designation contained in

section 131.31(c) with respect to that

waterbody. If EPA approves the State’s

UAA prior to the effective date of this

rule with respect to a waterbody listed
20688 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

in section 131.31(c), EPA intends to stay

the effectiveness of the Federal use

designation with respect to that

waterbody pending withdrawal of that

part of the rule by EPA.

EPA received a number of comments

opposing provisions of the proposed

rule relating to fish consumption. One

commenter submitted extensive

comments objecting to EPA’s proposal

to promulgate the FC designated use,

particularly with respect to the segment

of the Salt River from the I–10 bridge to

the 23rd Avenue WWTP discharge. The

commenter contended that EPA should

not have disapproved the lack of the FC

use on waters designated by Arizona as

having the aquatic and wildlife (warm

water fishery) use. The commenter

stated that EPA’s disapproval did not

explain how the Arizona standards were

inconsistent with section 101(a)(2) of

the Act, that EPA’s reliance upon 40

CFR 131.10(j)(1) in its disapproval was

inappropriate, and that a UAA was not

required in order to avoid designating

the FC use for the subject waters. The

commenter stated that EPA rules and

guidance documents do not require a FC

designated use if other water quality

standards are sufficient to protect the

health of persons who may consume

harvested aquatic life, and that the Act

does not require a specific FC use for

any waters at all. This commenter

further stated that EPA has generated no

evidence to support its hypothesis that

the aquatic and wildlife (warm water

fishery) designated use is not sufficient

for the minimal harvesting of edible

aquatic life that could potentially occur

on the Salt River segment between the

I–10 Bridge and the 23rd Avenue

wastewater treatment plant. The

commenter stated that Arizona’s use

designations and criteria, taken as a

whole, are entirely ‘‘consistent’’ with

the goals of the CWA, and that

consistency is all that is required in

light of 40 CFR 131.5 and 131.6. The

commenter stated that the CWA and

Arizona law require protection of only

those uses that are actually occurring or

are reasonably foreseeable, and that EPA

erroneously assumed in this case that

the Act requires the FC use found in the

Arizona water quality standards to

apply to all river segments regardless of

local environmental conditions, the

degree and types of harvesting by

humans, and the types of aquatic life in

the riverbed.

EPA continues to believe that EPA

Region 9’s disapproval of the absence of

fish consumption use designations for

certain waterbodies was consistent with

the requirements of the CWA. EPA

regulations regarding use designations

provide that a State ‘‘must conduct a use

attainability analysis as described in 40

CFR 131.3(g) whenever the State

designates or has designated uses that

do not include the uses specified in

section 101(a)(2) of the Act.’’ 40 CFR

131.10(j)(1). Section 101(a)(2) of the

CWA provides that water quality ‘‘shall

provide for the protection of fish,

shellfish, wildlife and recreation in and

on the water’’, and, in EPA’s view, the

‘‘protection’’ of fish, shellfish, and

recreation necessarily includes ensuring

that fish are not so contaminated that

they are unhealthful for human

consumption. Nonetheless, the State

had failed to include designated uses

that would protect such aquatic life for

purposes of human consumption, or to

perform a UAA demonstrating that this

use was not attainable. EPA, Region 9,

therefore appropriately concluded that

the State’s standards were not

‘‘consistent with’’ the goals of the CWA.

Finally, while this commenter asserts

that a FC designated use is not

necessary if other standards are

sufficient to protect the health of

persons, the State has not contended

that it has adopted criteria applicable to

these waters that would protect human

health. The State’s existing water

quality criteria were derived to protect

aquatic life itself, not humans who

consume it. Unlike aquatic life criteria,

human health criteria take into account

many factors that must be considered to

ensure that pollutant residues in fish,

when consumed by humans, do not

result in adverse health effects. See

generally 40 CFR Part 132, Appendices

A and C, 60 FR 15393–15411 (March 23,

1995) (containing methodologies for

deriving aquatic life and human health

criteria for the Great Lakes Basin). EPA

therefore believes that there is not a

reasonable basis to conclude that the

State’s aquatic life criteria will provide

protection for persons consuming fish

from these specified waterbodies.

This commenter apparently also

would seek to place the burden on EPA

Regions to demonstrate that existing

uses and criteria are not adequate to

protect human health, taking into

account local environmental conditions

and consumption patterns, prior to

disapproving state standards that fail to

include the uses reflected in section

101(a)(2) of the Act. This position

ignores the fact that, under EPA

regulations, a UAA is the appropriate

mechanism by which States can

determine whether local environmental

conditions and other factors justify the

absence of a use otherwise meriting

protection under the Act. Turning this

process on its head and requiring EPA,

which has far less familiarity with local

circumstances and conditions than does

the State agency, to make these

determinations would be impracticable

and would significantly undermine the

health protection goals of the Act.

Finally, the issue in Arizona was not

whether the State had reasonably

concluded that existing standards for

these waterbodies would protect human

health. Rather, it was the State’s failure

to adopt standards protecting human

health that precipitated the Region’s

disapproval action.

One commenter stated that, even if an

additional use designation were

necessary and supported by an

administrative record, EPA has failed to

promulgate scientifically supportable,

reasonable and necessary numeric

criteria to protect the use. The

commenter stated that the CWA requires

numeric criteria only for those toxic

pollutants for which criteria have been

published under section 304(a) of the

CWA, the discharge or presence of

which in the affected waters could

reasonably be expected to interfere with

those designated uses adopted by the

State, as necessary to support such

designated uses, and that EPA has not

conducted the analysis required by this

section to determine what numeric

criteria would be appropriate to support

the new FC use on the affected surface

waters. The commenter stated that there

is no administrative record to support

EPA’s FC use and associated numeric

criteria for all surface waters, and that

EPA should have considered whether

any of the surface waters potentially

subject to the new FC use would be

entitled to a modification of the use on

the basis of the factors in 40 CFR

131.10(g). The commenter also stated

that the social and economic impact of

the FC designations would be severe in

Phoenix, noting that some of the

Phoenix storm water outfalls discharge

into the Salt River segment that would

be reclassified under the proposed rule.

The commenter stated that the proposed

rule could have a substantial impact on

storm water discharges and

substantially increase costs to the public

without any demonstrated improvement

in public health. The commenter further

stated that the upgrading of the Salt

River and other segments with the FC

use could also have a ripple effect that

would result in more costly standards

for upstream ephemeral segments,

noting that Arizona water quality

standards appear to require that

designated uses for upstream segments

shall not cause a violation of water

quality standards in downstream

segments, and that economic impact of

the proposed FC use could spread
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20689

upstream to ephemeral waters that

clearly do not warrant the FC use.

The comments regarding the

appropriateness of criteria that will now

apply to these waterbodies appear to

indicate that commenters have

misunderstood EPA’s action. The State

has itself adopted criteria that it believes

are appropriate for providing protection

of persons consuming fish from many

State waters. EPA is not secondguessing this determination by the State.

EPA also disagrees that it was under a

duty to evaluate the attainability of the

fish consumption use taking into

account the factors in 40 CFR 131.10(g).

Again, under EPA regulations, States

have the opportunity and responsibility

for conducting UAAs to demonstrate

that uses consistent with the goals of the

CWA are not attainable. The State had

failed to do so here. EPA therefore was

within its authority to determine that

the use designations needed to be

revised to be consistent with the goals

in CWA section 101(a)(2). The State

remains free to determine, based on

local environmental conditions or the

costs that it determines could be

associated with the revised use

designations, to downgrade use

designations in accordance with 40 CFR

131.10(g). No commenters provided

information during the public comment

period indicating that, in fact, the

revised use designations were not

attainable according to the criteria

contained in section 131.10(g).

Another commenter also questioned

whether the segment of the Salt River

from the I–10 bridge to the 23rd Avenue

WWTP discharge should be designated

as having the fish consumption use. The

commenter stated that, if EPA’s

rationale for promulgating the fish

consumption use is simply because the

stream segment had been designated by

Arizona as having the ‘‘aquatic and

wildlife (warm water fishery)’’ use, then

the process and rationale for designating

the segment is suspect and should be

reviewed.

Another commenter stated that the

fish consumption designated use should

not be presumptively applied to all

water bodies, and should be applied

only when it is shown that fishing is a

legal, continuous, and widespread use

of a particular water body. The

commenter objected to allowing the

addition of designated uses to a stream

segment without the requirement to

make any particular showing while the

removal of a use may take place only

after a comprehensive use attainability

analysis which is often beyond the

financial or technical capability of the

individuals most directly affected by the

inappropriately designated use.

Another commenter sought

clarification that EPA’s designation of

the fish consumption use would be

limited to water bodies which are

waters of the United States.

As explained previously, EPA

believes that it was appropriate and

consistent with the requirements and

goals of the CWA to promulgate fish

consumption use designations where

the State has designated the waters as

supporting aquatic life. EPA disagrees

that the CWA places a burden on EPA

or States to demonstrate legal,

widespread and continuous use of a

waterbody before adopting a FC use

designation. No such restriction is

evident in the language or legislative

history of the CWA. To support a

particular use designation, it is

sufficient that such a use be attainable

in the waterbody. Regarding the use

designation for the Salt River from the

I–10 bridge to the 23rd Avenue WWTP

discharge, that segment is not addressed

by today’s rule since the State adopted

the FC use for this waterbody. See, R–

18–11–101, and Appendix B of Title 18,

Chapter 11, Article 1, of Arizona

Administrative Rules and Regulations,

as filed on April 24, 1996.

The one commenter is correct that the

revised use designations only apply to

waters that meet the definition of waters

of the United States.

2. Water Quality Criteria Protective of

Wildlife for Mercury

Arizona has established numeric

criteria for mercury for ‘‘aquatic and

wildlife’’, ‘‘fish consumption’’,

‘‘domestic water source’’ and other uses

designated for its waters. See, Appendix

A of Title 18, Chapter 11, Article 1, of

Arizona Administrative Rules and

Regulations. As part of its consultation

with EPA regarding Arizona’s water

quality standards pursuant to section 7

of the Endangered Species Act, the U.S

Fish and Wildlife Service (FWS)

determined that Arizona’s mercury

criteria for protection of aquatic and

wildlife uses were developed without

consideration of bioaccumulative effects

for predatory wildlife, and the FWS

identified the adoption of mercury

criteria protective of wildlife as a means

to remove jeopardy to endangered and

threatened species in the context of the

Endangered Species Act.

Based upon FWS’s determinations,

EPA, Region 9, in April 1994

disapproved Arizona’s lack of water

quality criteria protective of wildlife for

mercury.

While the FWS identified the

adoption of a mercury criterion

protective of wildlife as a reasonable

and prudent alternative to avoid

jeopardizing endangered and threatened

wildlife species, further discussions

between EPA, ADEQ, Arizona Game and

Fish Department, and the FWS led to

the development of an alternative

program to address the problem of

mercury’s impacts on endangered and

threatened species. The Service

indicated its overall approval of this

approach to dealing with the problem of

mercury as it relates to the protection of

wildlife and, on January 17, 1996,

revised its determination which initially

identified adoption of a mercury

criterion as a reasonable and prudent

alternative for removing jeopardy to

endangered species. Accordingly, in

January 1996, EPA proposed section

131.31(f) to address the deficiency in

the State’s standards related to

mercury’s effect on wildlife, and

solicited comment upon EPA’s intent to

implement a monitoring and source

identification program to assist EPA in

implementing Arizona’s narrative

toxicity criteria.

ADEQ has continued to participate,

with EPA, Region 9, and the U.S. Fish

and Wildlife Service, in the

development of an interim program to

protect predatory wildlife from mercury

until appropriate numeric criteria can

be developed. The program developed

by the agencies is described in ‘‘Arizona

Priority Pollutant Sampling Program,

ADEQ/AGFD/USFWS/USEPA

Cooperative Program’’, March 29, 1996.

Under that program, ADEQ, in

cooperation with the Arizona Game and

Fish Department, the U.S. Fish and

Wildlife Service, and EPA will conduct

a tissue monitoring program to assess

the magnitude and extent of mercury

bioaccumulation in the prey base of the

bald eagle and other fish-eating birds in

Arizona. This monitoring program

identifies further actions related to

sampling, source identification, and

remedy selection which the agencies

will undertake if mercury levels in fish

are found above a specified action level.

EPA received comment upon its

proposal to adopt section 131.31(f) and

upon the monitoring and source

identification program identified in the

Federal Register notice. A commenter

stated that, even with the

implementation procedures proposed by

EPA, Arizona’s narrative toxicity criteria

would not protect against food chain

accumulation in birds and other fisheating species. The commenter

contended that there was no deadline

for completion of the monitoring and

stated that there is no need to wait for

further fish tissue monitoring because

recent tests in certain lakes have found

mercury levels exceeding the 0.1 mg/kg

level identified under the proposed
20690 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

monitoring program as the trigger for

further control efforts. The commenter

also noted that a mercury criterion to

protect against food chain accumulation

has been established for the Great Lakes,

and that a similar criterion could be

developed for Arizona. The commenter

stated that the Arizona criterion might

differ if there were evidence that

mercury uptake rates among Arizona

fishes are markedly different than

among Great Lakes fishes, but that EPA

has offered no evidence to suggest this

is so.

EPA’s long-term goal is the adoption

of a mercury criterion for wildlife.

However, despite the claims by the

commenter, the data currently are not

available to derive a mercury criterion

for wildlife in Arizona using the

methodology developed for the Great

Lakes. A detailed discussion of the data

needed to develop a criterion is

discussed below. In lieu of a numeric

criterion, EPA believes that the

approach of using Arizona’s narrative

criterion in R18–11–108 for toxicity in

combination with the implementation of

the tissue monitoring program will

satisfy the requirements of the CWA to

provide protection of designated uses,

including wildlife protection and

propagation.

With regard to the commenter’s

general point regarding the necessity of

having numeric criteria in order to meet

the requirements of the CWA, it should

be emphasized that the absence of a

numeric criterion for a specific

pollutant is not unusual. EPA has not

published criteria guidance for the

protection of aquatic life for all

pollutants. To account for this

unavoidable absence of numeric criteria

for all pollutants, States include

narrative criteria as part of their

standards. Narrative criteria are

intended to cover all pollutants and

endpoints for which the state has not

adopted numeric criteria. The role of

narrative criteria in the CWA’s

regulatory program is evident in EPA’s

permitting regulations which include

explicit provisions requiring permit

limits to ensure narrative criteria are not

exceeded. 40 CFR 122.44(d)(1)(vi).

In addition, the commenter was

concerned that there was no deadline

for completion of the tissue monitoring

program. However, sampling will

commence in the spring of 1996 and

continue through the year 2000. The

FWS biological opinion, and the FWS’s

revised determination regarding

reasonable and prudent alternatives, are

included in the administrative record

for this rulemaking.

The purpose of the tissue monitoring

program is to provide information that

can be used to assist in evaluating the

magnitude of mercury contamination of

wildlife in Arizona. The monitoring

program was developed in consultation

with the FWS, ADEQ, and Arizona

Game and Fish Department. EPA

believes the sampling program is a

reasonable first step for identifying

those areas in the State where problems

may exist and for designing control

strategies that will help remediate such

problems to benefit wildlife protection

in Arizona. The program will assist EPA

in determining whether contaminated

fish species are isolated cases due to

particular sources of pollution (in which

case development of permit limits for a

particular discharger based on the

State’s existing narrative criterion may

be the best means of remedying the

problem) or whether they are indicative

of a larger State-wide problem which

needs to be addressed (potentially based

on state-wide numeric criteria, when

development of such criteria are

technically feasible). If during the tissue

monitoring it is determined that the

mercury tissue levels are consistently

found above the action level of 0.1 mg/

kg in the prey base of bald eagle or

Yuma clapper rail, then steps will be

taken to identify the sources of the

contamination and identify possible

corrective measures.

EPA is concerned with the elevated

mercury levels at the waterbodies

identified by the commenter. While

neither of the two lakes specifically

cited by the commenter were identified

by FWS as priority water bodies for

sampling for mercury for threatened and

endangered species, EPA is seeking to

identify the sources contributing to the

mercury levels detected in the two lakes

and corrective measures for them.

The commenter is correct that a

methodology for deriving wildlife

criteria and a mercury criterion for

wildlife were recently established in the

Great Lakes Water Quality Initiative

(‘‘GLI’’). It is important to note that the

GLI wildlife methodology and criteria

were developed over several years with

input from two national conferences

and several consultations with EPA’s

Science Advisory Board along with over

5000 public comments on the proposed

GLI. In addition to the large effort

undertaken to develop the methodology

and criteria, EPA stated very clearly in

the Supplementary Information

Document to the GLI that:

EPA would like to reemphasize that the

provisions in the proposed and final

Guidance are expressly applicable only to the

waters of the Great Lakes System * * *

States or Tribes with waters outside the Great

Lakes Systems, in whole or in part, are

encouraged to implement any of the

Guidance methodologies or procedures that

are scientifically and technically appropriate

for their situations. Supplementary

Information Document, p. 82.

EPA believes the methodology used in

the GLI for deriving a mercury wildlife

criteria may be appropriate for use in

Arizona with some modifications based

on the specific conditions in Arizona.

This does not mean, however, that a

criterion can simply be developed using

the data from the Great Lakes. In

addition, the commenter implies that

the only question which needs to be

considered when applying the GLI

methodology is whether the mercury

uptake rates among Arizona fishes are

markedly different than among Great

Lakes fishes. In fact, the

bioaccumulation potential is only one

component that goes into the derivation

of wildlife criteria.

ADEQ reviewed the GLI methodology

for deriving wildlife criteria to evaluate

its applicability to Arizona and

submitted their comments to EPA on

May 12, 1995, which are part of the

administrative record. EPA agrees with

ADEQ that ecological conditions differ

in Arizona from the Great Lakes region.

Therefore direct application of the GLI

methodology without modification is

probably not appropriate. Development

of a wildlife criterion to protect wildlife

from mercury in Arizona will likely

require the completion of tasks

analogous to those undertaken by EPA

in the GLI. This effort is necessary

because several components within the

wildlife methodology are specific to the

type of aquatic ecosystem and

associated wildlife species. It would not

be scientifically defensible to directly

adopt the mercury wildlife criterion for

the Great Lakes in the regulation of

Arizona ecosystems without further

analyses to support such a decision.

Issues that will require further data

evaluation and analyses include: (1) The

establishment of representative wildlife

species for aquatic ecosystems in

Arizona, including a determination of

their water and food intake rates and the

prey that comprises their diets; (2) a

determination of appropriate mercury

toxicity thresholds for the representative

wildlife species identified for Arizona

ecosystems; and (3) the establishment of

mercury bioaccumulation factors

appropriate for Arizona ecosystems and

their associated food chains.

The technical analyses needed to

establish the representative species (and

their associated attributes) and

appropriate mercury bioaccumulation

factors will likely require the largest

effort because these items are most

closely associated with the site-specific

nature of wildlife criteria. In addition to
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20691

the data evaluation and analyses, peer

review would be appropriate for any

wildlife methodology and associated

criteria developed in Arizona given the

numerous technical and scientific issues

involved in developing such a

methodology.

In summary, while EPA believes the

development of a wildlife criterion for

mercury may be possible, with some

modifications, using the methodology

developed in the GLI, the data to

support the development of such a

criterion are not currently available.

Therefore, until this information is

collected, EPA believes the approach of

relying on the narrative criterion

combined with the tissue monitoring

program will provide protection of

wildlife in a manner consistent with the

requirements of the Endangered Species

Act and Clean Water Act.

EPA is continuing to evaluate the

comments upon the substance of the

monitoring program, for the purpose of

determining whether modifications to

the program are warranted.

Another commenter indicated that

EPA’s disapproval of Arizona’s lack of

water quality criteria protective of

wildlife for mercury should have been

limited to the need for a mercury

criterion applicable to only those

surface waters where affected

endangered species are likely to be

adversely impacted.

EPA’s disapproval action was based

upon the biological opinion issued by

the FWS, which found that the State’s

existing criteria for mercury failed to

consider the effects of bioaccumulation

of pollutants on wildlife. Because

bioaccumulative effects may extend

beyond threatened and endangered

species to other species of wildlife,

EPA’s disapproval appropriately

extended to Arizona’s waters generally.

D. Summary of Provisions in Proposal

Not Included in Final Rule

1. Mining Exclusion

In September 1993, EPA, Region 9,

disapproved the exclusion related to

mining contained in the State’s

standards at Arizona Administrative

Rules and Regulations, R18–11–103.2.

That exclusion provided that Arizona’s

standards did not apply to certain

impoundments and associated ditches

and conveyances used in the extraction,

beneficiation and processing of metallic

ores.

In EPA’s January 1996 Federal

Register notice of proposed rulemaking,

EPA sought comment on a proposed

Federal rule that would adopt standards

for any waters of the United States not

governed by State standards due to R18–

11–103.2, as that State rule then existed.

In the preamble to the proposed Federal

rule, EPA also solicited comment

regarding revisions to R18–11–102 that

the State had proposed in December

1995 regarding the applicability of its

standards to impoundments and

associated ditches and conveyances

used in the extraction, beneficiation and

processing of metallic ores.

In April 1996 Arizona repealed R18–

11–103 in its entirety and revised R18–

11–102 by, among other things, adding

provisions related to the applicability of

the State’s standards to mining-related

impoundments. R18–11–102 as

promulgated differs in certain respects

from the proposed revision upon which

EPA sought comment in its January

1996 Federal Register notice.

EPA has determined that Arizona’s

repeal of R18–11 103.2, and Arizona’s

adoption of revisions to R18–11–102

regarding the applicability of the State’s

standards to certain impoundments and

associated ditches and conveyances, are

consistent with the CWA, and that a

Federal rule with respect to such

impoundments and associated ditches

and conveyances is not therefore needed

to meet the CWA’s requirements. EPA

believes that the State’s revision to R18–

11–103.2 adequately addresses EPA’s

concerns because it excludes from

standards only those waters that are not

waters of the United States.

Accordingly, EPA is not promulgating

the provision which it proposed

regarding mining-related

impoundments, and comments

opposing the adoption of the proposed

Federal rule are moot.

Other commenters objected to miningrelated exclusions under consideration

in Arizona’s rulemaking or encouraged

adoption of a Federal rule in order to

clarify the applicability of water quality

standards to mining-related activities.

One commenter supported the

application of water quality standards to

surface water bodies that have been

converted into mining impoundments.

The commenter also indicated that

EPA’s rule should address the extent to

which water quality standards are

applicable in cases involving stream

diversions and the placement of mining

wastes in dammed creek beds or valleys.

The commenter indicated its support for

broadening the protections associated

with water quality standards to cover

impoundments built in the drainages of

diverted water bodies. Another

commenter suggested that uncertainty

would be created if Arizona adopted the

mining-related revisions then under

consideration. The commenter noted

that it would be difficult for persons to

determine whether the particular

conditions for exempting water bodies

under Arizona’s proposal had been met.

The commenter suggested that accuracy

and simplicity might be better served by

deleting the State’s mining

impoundment exemption. EPA

considered these comments prior to

determining that Arizona’s final

rulemaking with respect to mining

impoundments is consistent with the

CWA and that a Federal rule is

unneeded.

Under section 303 of the CWA, States

must adopt standards for all waters of

the United States within the State. See,

Kentucky v. Train, 9 ERC 1280, 1281

(E.D. Ky. 1976). States, however, need

not adopt standards for any water body

which is not a water of the United

States. EPA has defined waters of the

United States to include, among other

waters, rivers and streams the use,

degradation, or destruction of which

would affect or could affect interstate

commerce; impoundments of such

waters are also waters of the United

States. See, 40 CFR 122.2 and 40 CFR

230.3(s). Accordingly, EPA’s

disapproval was based on the premise

that Arizona must adopt standards

governing mining impoundments which

are waters of the United States. In the

view of EPA, Region 9, the State’s

revised mining language accords with

the CWA because only impoundments

that are not waters of the United States

will not be subject to standards. EPA

agrees that additional guidance

addressing the extent to which water

quality standards are applicable in cases

noted by the commenters is desirable.

2. Practical Quantitation Limits

At the time of EPA’s actions

disapproving portions of Arizona’s

water quality standards, Arizona had

prescribed practical quantitation limits

(PQLs) in the regulations establishing its

water quality standards. See, R18–11–

120, and Appendix C of Title 18,

Chapter 11, Article 1, of Arizona

Administrative Rules and Regulations

(1992). Under Arizona’s regulations,

‘‘practical quantitation limit means the

lowest level of quantitative

measurement that can be reliably

achieved during routine laboratory

operations.’’ R18–11–101.37. In

September 1993, EPA, Region 9,

disapproved Arizona’s inclusion of the

PQLs in its regulations. EPA, Region 9,

stated that, in order for the standards to

be approvable under CWA section

303(c), they must protect the designated

uses and must not be compromised by

constraints related to analytical

methods. EPA, Region 9, further stated

that Arizona may choose to include the
20692 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

PQLs in a policy or guidance document

separate from the standards regulations.

In December 1995, ADEQ proposed

deleting the PQLs prescribed in

Appendix C from its regulations and

adopting the PQLs in a guidance

document. See, 1 Ariz. Admin. Reg.

2811 (Dec. 29, 1995), proposed R18–11–

120.

In its January 1996 action, EPA

proposed to adopt a Federal rule that

would provide that Appendix C of

Arizona’s regulations would not be

water quality standards for the purposes

of the CWA.

In its April 1996 rulemaking, Arizona

deleted Appendix C from its

regulations. Accordingly, EPA is not

promulgating a rule addressing this

issue.

3. Implementation Policies

In September 1993, EPA disapproved

the lack of implementation procedures

for Arizona’s narrative nutrient criteria.

Arizona’s narrative nutrient criteria

provides that navigable waters shall be

free from pollutants in amounts or

combinations that cause the growth of

algae or aquatic plants that inhibit or

prohibit the habitation, growth or

propagation of other aquatic life or that

impair recreational uses. See, R18–11–

108.A.6. At the time of the disapproval,

Arizona had not adopted an

implementation process for its narrative

criteria.

Also in September 1993, EPA, Region

9, disapproved the lack of

implementation procedures for

Arizona’s narrative toxicity criterion.

Arizona’s narrative toxicity criterion

provides that navigable waters shall be

free from pollutants in amounts or

combinations that are toxic to humans,

animals, plants and other organisms.

See, R18–11–108.A.5. At the time of the

disapproval, Arizona had not adopted

implementation procedures for toxicity.

In its January 1996 proposal, EPA

proposed to adopt a Federal rule to

address these deficiencies in the State’s

standards. Proposed 40 CFR 131.31(e).

In its January 1996 proposal, EPA also

solicited comment regarding the

Region’s use of two policies to guide the

Region’s implementation of the subject

narrative criteria: ‘‘EPA, Region 9,

Policy for the Implementation of

Arizona’s Narrative Nutrient Criteria’’

and ‘‘EPA, Region 9, Policy on Using

Biomonitoring to Implement Arizona’s

Narrative Toxicity Criterion’’. As noted

in EPA’s January 1996 Federal Register

notice, EPA does not believe that it is

necessary that the State itself adopt

regulatory provisions addressing these

implementation issues. EPA explained

in the Federal Register notice that such

policies and procedures may be

contained either in water quality

standards regulations themselves, or

may be included in a standards

submission as policy or guidance

documents. EPA also stated in its

January 1996 preamble that, should the

State adopt acceptable policies and

procedures prior to promulgation of a

final rule by EPA, the Agency would not

include the subject regulatory

provisions in the final rule.

In January 1996, Arizona adopted a

policy for the implementation of the

State’s narrative criteria for nutrients.

ADEQ, Water Quality Assessment Unit,

‘‘Implementation Guidelines for the

Narrative Nutrient Standard’’. In April

1996, Arizona adopted a policy for the

implementation of the State’s narrative

criteria for toxicity. ADEQ, ‘‘Interim

Whole Effluent Toxicity Implementation

Guidelines for Arizona’’.

After reviewing the State-adopted

implementation policies and the

comments received in response to the

January 1996 Federal Register notice,

EPA, Region 9, approved the policies

adopted by the State. With respect to

EPA’s prior disapproval of Arizona’s

standards due to the lack of

implementation policies related to

narrative criteria for nutrients and

toxicity, EPA has determined that

Arizona’s water quality standards, as

supplemented by the State’s newly

adopted implementation plans, are

consistent with the CWA and that no

new Federal water quality standard is

necessary to meet the CWA’s

requirements. Accordingly, EPA is not

promulgating proposed 40 CFR

131.31(e).

EPA received comments regarding its

implementation policies in response to

the January 1996 Federal Register

notice. Because EPA has approved

Arizona’s implementation policies, and

therefore not promulgated a final rule

related to these policies, those

comments are no longer relevant to this

rulemaking action. However, those

comments regarding EPA’s policies that

are material to EPA’s decision to

approve Arizona’s policies have been

considered by the Agency in its

approval action and responses to those

comments have been prepared and are

part of the record supporting EPA’s

approval of Arizona’s narrative toxicity

and narrative nutrient standards

implementation policies. A number of

comments having to do with the

appropriateness of adopting Federal

implementation policies, or the

necessity of having State policies, are

moot since the State has now adopted

its own implementation policies. Other

comments received were specific to

EPA’s own toxicity policy for Arizona

(‘‘EPA, Region 9, Policy on Using

Biomonitoring to Implement Arizona’s

Narrative Toxicity Criterion’’). These

comments addressed the purpose and

function of toxicity requirements in

permits. Since Arizona’s toxicity policy

does not address how the narrative

toxicity standard will be implemented

in permits, these comments have not

been responded to in EPA’s action

approving the Arizona toxicity policy.

EPA will take these comments into

account as we further refine the

implementation of toxicity narrative

standards in National Pollutant

Discharge Elimination System permits

in Arizona.

E. Endangered Species Act

Pursuant to section 7 of the

Endangered Species Act (16 U.S.C. 1656

et seq.), Federal agencies must assure

that their actions are unlikely to

jeopardize the continued existence of

listed threatened or endangered species

or adversely affect designated critical

habitat of such species. Today’s action

adds the fish consumption use to

various waters which previously did not

have the protections afforded by that

designation, and establishes that a

monitoring program will be undertaken

to implement the State’s narrative water

quality criteria with respect to the

effects of mercury on wildlife.

EPA has completed section 7

consultation with the FWS regarding

this action.

F. 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 Office of Management and

Budget (OMB) review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, of

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 of the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20693

President’s priorities, or the principles

set forth in the Executive Order.

Because the annualized cost of this

final rule would be significantly less

than $100 million and would meet none

of the other criteria specified 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.

G. Executive Order 12875, Enhancing

the Intergovernmental Partnership

In compliance with Executive Order

12875 EPA has involved state, local, and

tribal governments in the development

of this rule. EPA, Region 9, consulted

with ADEQ through conference calls,

meetings and review of draft and final

documents. EPA held a meeting on

December 14, 1995, in Phoenix, AZ,

with members of the potentially

impacted public (e.g., municipalities,

industries and environmental groups) to

discuss the proposed action. EPA held

a public hearing on the proposed action

on February 29, 1996.

H. Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.) requires EPA to

assess whether its regulations create a

disproportionate effect on small entities.

Among its provisions, the Act directs

EPA to prepare and publish an initial

regulatory flexibility analysis (IRFA) for

any proposed rule which may have a

significant impact on a substantial

number of small entities. For purposes

of this rulemaking, small entities are

small dischargers, whether industrial or

municipal.

Pursuant to section 605(b) of the

Regulatory Flexibility Act (5 U.S.C.

605(b)), the Administrator certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities. This rule is

limited to the designation of the fish

consumption use for fourteen waters

within Arizona, and the requirement

that EPA or Arizona implement a

monitoring program to assess attainment

of a specified State-adopted water

quality standard. In light of the limited

geographic scope of the use designations

included in the final rule adopted by

EPA (i.e., fourteen waterbodies), the

Agency does not believe that there will

be significant impacts associated with

this aspect of the rule. The mercury

monitoring program, moreover, will be

carried out by EPA and ADEQ, and does

not itself impose any additional

obligations on small entities.

I. 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 costeffective 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.

As noted above, this rule is limited to

the designation of the fish consumption

use for fourteen waters within Arizona,

and the requirement that EPA or

Arizona implement a monitoring

program to assess attainment of a Stateadopted water quality standard. EPA

has determined that this rule contains

no regulatory requirements that might

significantly or uniquely affect small

governments. EPA has also determined

that this rule does not contain a Federal

mandate that may result in expenditures

of $100 million or more for State, local,

and tribal governments, in the aggregate,

or the private sector in any one year.

Thus, today’s rule is not subject to the

requirements of sections 202 and 205 of

the UMRA.

J. Paperwork Reduction Act

This action requires no information

collection activities subject to the

Paperwork Reduction Act, and therefore

no information collection request (ICR)

will be submitted to the Office of

Management and Budget (OMB) for

review in compliance with the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

List of Subjects in 40 CFR Part 131

Environmental protection, Water

pollution control, Water quality

standards, Toxic pollutants.

Dated: April 29, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, part 131 of title 40 of the

Code of Federal Regulations is amended

as follows:

PART 131—WATER QUALITY

STANDARDS

1. The authority citation for part 131

continues to read as follows:

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

Subpart D—[Amended]

2. Section 131.31 is amended by

adding paragraphs (b), and (c), to read

as follows:

§ 131.31 Arizona.

* * * * *

(b) The following waters have, in

addition to the uses designated by the

State, the designated use of fish

consumption as defined in R18–11–101

(which is available from the Arizona

Department of Environmental Quality,

Water Quality Division, 3033 North

Central Ave., Phoenix, AZ 85012):

COLORADO MAIN STEM RIVER

BASIN:

Hualapai Wash

MIDDLE GILA RIVER BASIN:

Agua Fria River (Camelback Road to

Avondale WWTP)

Galena Gulch

Gila River (Felix Road to the Salt

River)

Queen Creek (Headwaters to the

Superior WWTP)

Queen Creek (Below Potts Canyon)

SAN PEDRO RIVER BASIN:

Copper Creek

SANTA CRUZ RIVER BASIN:

Agua Caliente Wash

Nogales Wash

Sonoita Creek (Above the town of

Patagonia)

Tanque Verde Creek

Tinaja Wash

Davidson Canyon

UPPER GILA RIVER BASIN
20694 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Chase Creek

(c) To implement the requirements of

R18–11–108.A.5 with respect to effects

of mercury on wildlife, EPA (or the

State with the approval of EPA) shall

implement a monitoring program to

assess attainment of the water quality

standard.

[FR Doc. 96–11080 Filed 5–6–96; 8:45 am]

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