[Federal Register Volume 73, Number 161 (Tuesday, August 19, 2008)]
[Rules and Regulations]
[Pages 48300-48305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19201]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2008-0495; FRL-8706-7]


Withdrawal of the Federal Water Quality Standards Use 
Designations for Soda Creek and Portions of Canyon Creek, South Fork 
Coeur d'Alene River, and Blackfoot River in Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to withdraw the Federal 
water quality standards designating cold water biota uses for Soda 
Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and 
Blackfoot River in Idaho. In July 1997, EPA promulgated a Federal rule 
designating uses for water bodies in the State of Idaho, including the 
designation of cold water biota for Soda Creek, and portions of Canyon 
Creek, South Fork Coeur d'Alene River, and Blackfoot River, with the 
exception of any portion in Indian country. These Federal water quality 
standards designating cold water biota uses are no longer necessary 
since EPA approved Idaho's adopted uses that result in protection for 
cold water biota. EPA is also withdrawing the water quality standards 
variance provision applicable to these uses, because this provision is 
no longer necessary with the withdrawal of the Federal water quality 
standards designating these uses.

DATES: This rule is effective on November 17, 2008 without further 
notice, unless EPA receives adverse comment by September 18, 2008. If 
EPA receives adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2008-0495, by one of the following methods:
    <bullet> www.regulations.gov: Follow the online instructions for 
submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#a4cbd389c0cbc7cfc1d0e4c1d4c58ac3cbd2"><span class="__cf_email__" data-cfemail="523d257f363d31393726123722337c353d24">[email protected]</span></a>.
    <bullet> Mail to either: Water Docket, U.S. Environmental 
Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460 or Lisa Macchio, U.S. EPA, Region 10, Mailcode: 
OWW-131, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, 
Attention: Docket ID No. EPA-HQ-OW-2008-0495.
    <bullet> Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301

[[Page 48301]]

Constitution Avenue, NW., Washington, DC 20004 or Lisa Macchio, U.S. 
EPA, Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101, 
Attention Docket ID No. EPA-HQ-OW-2008-0495. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2008-
0495. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at two docket facilities. The OW 
Docket Center is open from 8:30 until 4:30 p.m., Monday through Friday, 
excluding legal holidays. The OW Docket Center telephone number is 
(202) 566-2426, and the Docket address is OW Docket, EPA West, Room 
3334, 1301 Constitution Avenue, NW., Washington, DC 20004. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744. Publicly available docket materials are 
also available in hard copy at U.S. EPA, Region 10, 1200 Sixth Avenue, 
Suite 900, Seattle, WA 98101. Docket materials can be accessed from 9 
a.m. until 3 p.m., Monday through Friday, excluding legal holidays. The 
telephone number is (206) 553-1834.

FOR FURTHER INFORMATION CONTACT: Wendy Drake, U.S. EPA Headquarters, 
Office of Water, Mailcode: 4305T, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460; telephone number: 202-564-2926; fax number: 202-
566-0409; e-mail address: <a href="/cdn-cgi/l/email-protection#2d495f4c4648035a484349546d485d4c034a425b"><span class="__cf_email__" data-cfemail="395d4b58525c174e5c575d40795c4958175e564f">[email protected]</span></a> or Lisa Macchio, U.S. 
EPA, Region 10, Mailcode: OWW-131, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101; telephone number: 206-553-1834; fax number: 
206-553-0165; e-mail address: <a href="/cdn-cgi/l/email-protection#cca1adafafa4a5a3e2a0a5bfad8ca9bcade2aba3ba"><span class="__cf_email__" data-cfemail="9af7fbf9f9f2f3f5b4f6f3e9fbdaffeafbb4fdf5ec">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In July 1997, EPA promulgated a Federal rule 
designating uses for water bodies in the State of Idaho, including the 
designation of cold water biota for Soda Creek, and portions of Canyon 
Creek, South Fork Coeur d'Alene River, and Blackfoot River, with the 
exception of any portion in Indian country (62 FR 41183, July 31, 
1997). In March 2000, Idaho adopted a revised use for a segment of 
Blackfoot River, which changed from ``Protected for Future Use'' to 
undesignated. In Idaho, undesignated waters are protected for all 
recreational use in and on the water and for the propagation of fish, 
shellfish, and wildlife (IDAPA 58.01.02.101.01). In March 2002, Idaho 
adopted a use designation of cold water biota for segments of Canyon 
Creek and South Fork Coeur d'Alene River. In March 2006, Idaho adopted 
a revised use for Soda Creek, which changed from ``NONE'' to 
undesignated. As described in the undesignated surface waters provision 
of Idaho's Water Quality Standards (IDAPA 58.01.02.101.01a), the Idaho 
Department of Environmental Quality (IDEQ) applies cold water aquatic 
life criteria to undesignated waters because it is presumed that most 
waters in the State will support cold water aquatic life. Thus, cold 
water aquatic life criteria now apply to Soda Creek and the segment of 
the Blackfoot River. EPA approved Idaho's revised water quality 
standards for segments of Canyon Creek and South Fork Coeur d'Alene 
River on June 24, 2005, and for Soda Creek on August 15, 2006. EPA 
approved Idaho's revised water quality standards for the segment of the 
Blackfoot River, except for any portion in Indian country, on August 
22, 2006. Thus, the Federal water quality standards designating Soda 
Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and 
Blackfoot River for cold water biota use (40 CFR 131.33(b)) is no 
longer necessary, and EPA is withdrawing it with this action. EPA is 
also withdrawing the water quality standards variance provision 
applicable to these uses (40 CFR 131.33(d)), because this provision is 
no longer necessary with the withdrawal of the Federal water quality 
standards designating these uses.

I. Why EPA Is Using a Direct Final Rule

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment because this action withdraws the Federal water quality 
standards designating cold water biota uses that are no longer 
necessary since EPA approved Idaho's adopted uses that result in 
protection for cold water biota. However, in the ``Proposed Rules'' 
section of today's Federal Register, we are publishing a separate 
document that will serve as the proposed rule to withdraw the Federal 
water quality standards for these uses if adverse comments are received 
on this direct final rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. For further information about commenting on this rule, 
see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

II. What Entities May Be Affected by This Action?

    Citizens concerned with water quality in Idaho may be interested in 
this rulemaking. Entities discharging pollutants to Soda Creek, Canyon 
Creek, South Fork Coeur d'Alene, and Blackfoot River in Idaho could be 
indirectly affected by this rulemaking because water quality standards 
are used in determining National Pollutant Discharge Elimination System 
(NPDES) permit limits. Because this action withdraws the Federal water 
quality standards designating cold water biota

[[Page 48302]]

uses that are no longer necessary since EPA approved Idaho's adopted 
uses that result in protection for cold water biota, the effect of this 
rulemaking may only occur when entities seek variances to water quality 
standards. Entities seeking variances from use designations on these 
waters will now apply to the state, and EPA will act on the state's 
decision to grant the variance.
    Categories and entities that may ultimately be affected include:

------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             entities
------------------------------------------------------------------------
Industry..............................  Industries discharging
                                         pollutants to Soda Creek,
                                         Canyon Creek, South Fork Coeur
                                         d'Alene River, and Blackfoot
                                         River in Idaho.
Municipalities........................  Publicly owned treatment works
                                         discharging pollutants to Soda
                                         Creek, Canyon Creek, South Fork
                                         Coeur d'Alene River, and
                                         Blackfoot River in Idaho.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding NPDES regulated entities likely to be 
affected by this action. This table lists the types of entities that 
EPA is now aware could potentially be affected by this action.

III. What To Consider in Preparing Comments for EPA

    A. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

IV. Background

    On July 31, 1997, pursuant to section 303(c) of the Clean Water Act 
(CWA), EPA promulgated water quality standards for Idaho, which 
designated several water body segments for cold water biota use. These 
segments included: A segment of the Blackfoot River, then identified as 
USB 360--Equalizing Dam to mouth (with the exception of any portion in 
Indian country); a segment of Canyon Creek (segment PB 121)--below 
mining impact; a segment of South Fork Coeur d'Alene River (segment PB 
140S)--Daisy Gulch to mouth; and Soda Creek (segment BB 310)--source to 
mouth.
    A. Blackfoot River: In March 2000, the Idaho Legislature adopted 
revised water quality standards, providing an undesignated use for the 
segment of the Blackfoot River that the Federal rule addressed (IDAPA 
58.01.02.150.09). In Idaho, undesignated waters are protected for all 
recreational use in and on the water and for the propagation of fish, 
shellfish, and wildlife (IDAPA 58.01.02.101.01). Given the flow 
limitations on the Blackfoot River segment, IDEQ removed the aquatic 
life use designation of ``Protected for Future Use'' from the Blackfoot 
River segment and left the use undesignated so that a more appropriate 
aquatic use designation may be described and added to Idaho water 
quality standards in the future. As described in the undesignated 
surface waters provision (IDAPA 58.01.02.101.01a), IDEQ applies cold 
water aquatic life criteria to undesignated waters because it is 
presumed that most waters in the State will support cold water aquatic 
life. As EPA stated in its approval letter of August 22, 2006, EPA 
considers Idaho's revision to provide a default cold water aquatic life 
use designation for the Blackfoot River segment, except for any portion 
in Indian country. EPA would consider any change in the level of 
protection afforded to the Blackfoot River segment to be a revision to 
Idaho's water quality standards, subject to EPA review pursuant to 40 
CFR part 131. The water quality standards revision also included a 
reformatting and renumbering of the Water Body/Basin Designation Tables 
and the segment of the Blackfoot River previously identified as USB 360 
(Equalizing Dam to mouth) was renumbered to U.S.-1 (Fort Hall Main 
Canal diversion to mouth), which is within the Blackfoot Subbasin of 
the Upper Snake Basin. Thus, cold water aquatic life criteria now apply 
to the U.S.-1 segment of the Blackfoot River, which was formerly 
identified as USB 360. EPA approved Idaho's revision, except for any 
portion in Indian country, on August 22, 2006. The 1997 promulgation 
establishing the Federal water quality standards designating uses for 
Blackfoot River did not apply to waters in Indian country; likewise, 
EPA's approval of the state's designated use for Blackfoot River 
excludes waters in Indian country.
    B. Canyon Creek and South Fork Coeur d'Alene River: On March 15, 
2002, the Idaho Legislature adopted revised water quality standards, 
including the cold water biota designated use for Canyon Creek, which 
was previously identified as PB 121 (below mining impact) and is now 
renumbered and renamed segment P-14 (from and including Gorge Gulch to 
mouth); and South Fork Coeur d'Alene River, which was previously 
identified as segment PB 140S and is now renumbered and includes two 
segments: segment P-1 (Canyon Creek to mouth) and segment P-11 (from 
and including Daisy Gulch to Canyon Creek) (IDAPA 58.01.02.110.09). 
Canyon Creek and the South Fork Coeur d'Alene River are within the 
South Fork Coeur d'Alene River Subbasin of the Panhandle Basin. Canyon 
Creek in its entirety, including segments P-14 (from and including 
Gorge Gulch to mouth) and P-15 (source to Gorge Gulch), is designated 
for cold water biota. The South Fork Coeur d'Alene River is also 
designated for cold water biota use in its entirety; the South

[[Page 48303]]

Fork Coeur d'Alene River upstream of Daisy Gulch (segment P-13 source 
to Daisy Gulch) was already designated as a cold water biota use. When 
the State first established its water quality standards, it included 
the phrase ``below mining impact'' to identify a number of stream 
segments in order to account for the lingering adverse environmental 
effects of numerous abandoned mines in the State. EPA recognized the 
concerns of the State and used the same terminology in its promulgation 
of Federal standards on July 31, 1997. EPA approved Idaho's revisions 
on June 24, 2005.
    C. Soda Creek: In March 2006, the Idaho Legislature adopted revised 
water quality standards, removing the use designation of ``NONE'' and 
providing an undesignated use for Soda Creek. In Idaho, undesignated 
waters are protected for all recreational use in and on the water and 
for the propagation of fish, shellfish, and wildlife (IDAPA 
58.01.02.101.01). Soda Creek had been identified as segment BB 310 
(source to mouth) and is now renumbered and includes three segments: 
segments B-23 (Soda Creek Reservoir Dam to Alexander Reservoir), B-24 
(Soda Creek Reservoir), and B-25 (source to Soda Creek Reservoir) in 
the South Fork Clearwater Subbasin of the Clearwater Basin (IDAPA 
58.01.02.160.02). IDEQ initially proposed that Soda Creek be designated 
for coldwater aquatic life use. However, due to a lack of data, 
particularly water temperature records, showing that cold water aquatic 
life criteria were met, Soda Creek was left undesignated. As described 
in the undesignated surface waters provision (IDAPA 58.01.02.101.01a), 
IDEQ applies cold water aquatic life criteria to undesignated waters 
because it is presumed that most waters in the State will support cold 
water aquatic life. Thus, cold water aquatic life criteria now apply to 
Soda Creek. EPA approved Idaho's revision on August 15, 2006. As EPA 
stated in this approval letter, EPA considers Idaho's revision to 
provide a default cold water aquatic life use designation for Soda 
Creek. EPA would consider any change in the level of protection 
afforded to Soda Creek to be a revision to Idaho's water quality 
standards, subject to EPA review pursuant to 40 CFR part 131.
    D. EPA-approved Use Designations and Criteria: For Blackfoot River 
(US-1) and Soda Creek (B-23, B-24, and B-25), the State now applies an 
undesignated use that is practically equivalent to the aquatic life use 
established by EPA in its July 31, 1997, rulemaking because cold water 
biota criteria apply. Specifically, Idaho's undesignated surface waters 
provision states (IDAPA 58.01.02.101):

    ``Surface waters not designated in Sections 110 through 160 
shall be designated according to Section 39-3604, Idaho Code, taking 
into consideration the use of the surface water and such physical, 
geological, chemical, and biological measures as may affect the 
surface water. Prior to designation, undesignated waters shall be 
protected for beneficial uses, which includes all recreational use 
in and on the water and the protection and propagation of fish, 
shellfish, and wildlife, wherever attainable.
    a. Because [IDEQ] presumes most waters in the state will support 
cold water aquatic life and primary or secondary contact recreation 
beneficial uses, [IDEQ] will apply cold water aquatic life and 
primary or secondary contact recreation criteria to undesignated 
waters unless Sections 101.01.b and 101.01c. are followed.
    b. During the review of any new or existing activity on an 
undesignated water, [IDEQ] may examine all relevant data or may 
require the gathering of relevant data on beneficial uses; pending 
determination in Section 101.01.c. existing activities will be 
allowed to continue.
    c. If, after review and public notice of relevant data, it is 
determined that beneficial uses in addition to or other than cold 
water aquatic life and primary or secondary contact recreation are 
appropriate, then [IDEQ] will:
    i. Complete the review and compliance determination of the 
activity in context with the new information on beneficial uses, and
    ii. Initiate rulemaking necessary to designate the undesignated 
water, including providing all necessary data and information to 
support the proposed designation.''

For Canyon Creek (P-14) and South Fork Coeur d'Alene River (P-1 and P-
11), the State now applies an aquatic life use designation that is the 
same as the one established by EPA in its July 31, 1997 rulemaking 
(``cold water biota''). Therefore, withdrawing the Federal water 
quality standards designating these uses will not result in a change in 
the level of protection afforded to Soda Creek, Canyon Creek, South 
Fork Coeur d'Alene River, or Blackfoot River.
    EPA's action to remove the federal water quality standards that 
designated uses for Soda Creek and portions of Canyon Creek, South Fork 
Coeur d'Alene River, and Blackfoot River does not change the water 
quality criteria that apply to these water bodies. Idaho's water 
quality criteria that provide protection for the cold water aquatic 
life use are found in several sections of Idaho's water quality 
standards. Specifically, the general surface water criteria applicable 
to all surface waters in Idaho are provided in IDAPA 58.01.02.200, and 
numeric criteria for toxic substances for waters designated for aquatic 
life use apply per IDAPA 58.01.02.210a. IDAPA 58.01.02.250 provides 
additional aquatic life criteria applicable to the segments from which 
the federal water quality standards are being withdrawn, including 
general criteria for pH and dissolved gas that apply to all aquatic 
life use designations (IDAPA 58.01.02.250.01), as well as cold water 
criteria for dissolved oxygen, temperature, ammonia (acute and 
chronic), and turbidity that apply to waters designated for cold water 
aquatic life (IDAPA 58.01.02.250.02).
    E. Water Quality Standards Variance: In promulgating Federal water 
quality standards designating uses for Idaho waters, EPA also included 
a water quality standards variance provision (40 CFR 131.33(d)) 
authorizing the EPA Region 10 Regional Administrator to grant variances 
from the Federal water quality standards that designated the cold water 
biota uses. Because today's rule removes the Federal water quality 
standards designating these uses, provision 40 CFR 131.33(d) is no 
longer necessary and is also withdrawn with this action. Idaho has 
adopted its own water quality standards variance provision (IDAPA 
58.01.02.260), which was approved by EPA on June 25, 1996.

V. Statutory and Executive Order Reviews

Executive Order 12866 (Regulatory Planning and Review)

    This action withdraws Federal requirements applicable to Idaho and 
imposes no regulatory requirements on any person or entity, does not 
interfere with the action or planned action of another agency, and does 
not have any budgetary impacts or raise novel legal or policy issues. 
The action imposes no additional cost on the regulated community 
because it will not change the level of environmental protection 
already achieved. The rule imposes only minimal additional effort on 
the State of Idaho as the regulator, because entities seeking variances 
from use designations will now apply to the state instead of to EPA. 
Thus, it has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 (58 FR 
51735, October 4, 1993) and is therefore not subject to review under 
the Executive Order.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), 
because it is administratively withdrawing Federal requirements that no 
longer need to apply to Idaho. Burden is defined at 5 CFR 1320.3(b).

[[Page 48304]]

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally requires an agency to prepare a regulatory flexibility 
analysis of a rule that is subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this action on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    This rule imposes no regulatory requirements or costs on any small 
entity. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4 establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal, and local 
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 rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, Tribal, or local 
governments or the private sector because it imposes no enforceable 
duty on any of these entities. Thus, today's rule is not subject to the 
requirements of UMRA sections 202 and 205. Similarly, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and is 
therefore not subject to UMRA section 203.

Executive Order 13132 (Federalism)

    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.''
    This 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 imposes no regulatory 
requirements on any State, Tribal, or local government. The rule 
imposes only minimal additional effort on the State of Idaho as the 
regulator, because entities seeking variances from use designations 
will now apply to the state instead of to EPA. Thus, Executive Order 
13132 does not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It imposes 
no regulatory requirements or costs on any Tribal government. It does 
not have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

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

    This rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant as defined in Executive Order 12866, and EPA has no reason 
to believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations

[[Page 48305]]

when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this direct final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations, because it does not 
affect the level of protection provided to human health or the 
environment.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. 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) and will be effective on November 17, 2008.

List of Subjects in 40 CFR Part 131

    Environmental protection, Intergovernmental relations, Reporting 
and recordkeeping requirements, Water pollution control, Water quality 
standards.

    Dated: August 13, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, 40 CFR part 131 is amended 
as follows:

PART 131--WATER QUALITY STANDARDS

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

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


Sec.  131.33  [Amended]

0
2. Section 131.33 is amended by removing and reserving paragraph (b) 
and by removing paragraph (d).

[FR Doc. E8-19201 Filed 8-18-08; 8:45 am]
BILLING CODE 6560-50-P


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