Notice of a Final List of Water Quality Limited Waterbodies in the State of Minnesota

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4999-7]

Notice of a Final List of Water Quality Limited Waterbodies in

the State of Minnesota

AGENCY: Environmental Protection Agency.

ACTION: Notice of a final Clean Water Act section 303(d) list for the

State of Minnesota.

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SUMMARY: The purpose of this notice is to announce the United States

Environmental Protection Agency's (USEPA) final decision with respect

to the list required of the State of Minnesota, under section 303(d) of

the Clean Water Act (CWA). On December 8, 1993, the USEPA published (58

FR 64584) a proposed list of waterbodies, subsequent to its

disapproval, on August 9, 1993, of portions of the list prepared by the

State of Minnesota. A total of 72 waterbodies have been identified as

appropriate waterbodies for the development of total maximum daily

loads (TMDLs), pursuant to section 303(d), 40 CFR part 130, and USEPA

guidance, as resources permit. An additional number of waterbodies have

been identified, for which implementation of a TMDL will be dependent

on a variety of events or actions outside the control of the State of

Minnesota. Copies of the lists may be obtained at the address provided

in the addresses section.

ADDRESSES: Persons wishing to obtain a copy of the lists may do so by

contacting Mr. Robert F. Pepin, U.S. Environmental Protection Agency,

Region 5, Water Division, 77 West Jackson Boulevard, Chicago, Illinois

60604, telephone (312) 886-1505; or Mr. Greg Gross, Division of Water

Quality, Minnesota Pollution Control Agency, 520 Lafayette Road, St.

Paul, Minnesota 55155, telephone (612) 296-7213.

FOR FURTHER INFORMATION CONTACT: Mr. Robert F. Pepin or Mr. Greg Gross

at the above addresses or telephone numbers.

SUPPLEMENTARY INFORMATION: Section 303(d) of the CWA requires that the

States identify lists of waterbodies for which TMDL development is

appropriate. Further, section 303(d) requires that the lists developed

by the States be submitted to the USEPA for review and approval or

disapproval. To the extent that the USEPA disapproves a State

submittal, section 303(d) of the CWA requires that the USEPA develop

and publish the list. The USEPA must also assure that public

participation in the formulation of a list of waterbodies is consistent

with 40 CFR part 25, and may publicly notice a State submittal for that

purpose as well.

The State of Minnesota had prepared several lists for the USEPA

review, and had submitted and subsequently withdrawn several of these.

On July 6, 1993, the USEPA received from Minnesota, a proposed list,

which contained some, but not all of the waterbodies which the USEPA

believed should be included on the list applicable to the State of

Minnesota. As a result, the USEPA issued, on August 9, 1993, a partial

approval of the list submitted by the State, approving the list to the

extent that it did include waterbodies which were appropriately

included on the list, but disapproving the submission in that it did

not include all waterbodies which would be subject to the requirements

of section 303(d).

Subsequently, USEPA developed a list of additional waterbodies

which it believed were subject to the requirements of section 303(d),

and published a notice to that effect on December 8, 1993 (58 FR

64584). The USEPA received written comments from four commenters,

including the Minnesota Pollution Control Agency (MPCA). These comments

are available for public inspection at the address listed above.

(A) Responses to Comments

In making its final determination, the USEPA has carefully

considered all comments received, and has revised its lists

accordingly. In particular, changes have been made based upon the

following.

(1) The MPCA commented that 23 stream segments were not identified

on the proposed list, and should be included.

In alternate years, the State of Minnesota, pursuant to section

305(b) of the CWA, provides a report to Congress, on the health of

waters within the State. In its 1992 report, Minnesota had identified

the 23 stream segments in question, as impaired, however, the USEPA had

not included these segments on its proposed list, believing the data to

be old and somewhat unreliable. Upon further review, however, it is

apparent that these segments are contiguous with other waterbodies

included upon the USEPA's proposed list, and that these other

waterbodies are scheduled for TMDL development within the next few

years. As MPCA intends to develop these TMDLs for the whole waterbody,

the MPCA believes that the 23 segments the USEPA had originally

proposed to exclude should also be listed. The USEPA agrees.

(2) The MPCA commented that 65 segments that were identified by the

USEPA in the proposed list should not be included because the data used

to support listing does not reflect current conditions.

The information provided by the commenter indicates that of the 65

segments, remedial actions have been taken on 51 segments. In addition,

exceedences of water quality standards were infrequent for five of the

65 segments, and did not support a conclusion that the waterbodies were

impaired. Finally, the impairment determination for nine segments was

based on data that were typically five to 10 years of age, and was not

thought to be indicative of current conditions. The USEPA agrees that

these waterbodies should not be listed pursuant to section 303(d).

(3) The MPCA commented that nine waterbodies that were identified

in the proposed list should not be listed because the stated impairment

is due to ubiquitous metals, for which there is no evidence, based upon

biological sampling, that designated uses are impaired.

For each of these waterbodies, the MPCA provided documentation that

the impairments described were based upon one or more of the following:

Rare excursions of the water quality standards; ambient levels of the

various constituents higher than expected for the ecoregion, but no

water quality standards exceedences measured; or misinterpretation by

the USEPA of the data provided in the 305(b) report. The USEPA agrees

with the MPCA that cause does not exist for listing these waterbodies.

(4) The MPCA commented that approximately 245 segments of

waterbodies which were included on the proposed USEPA list, should be

excluded for a variety of reasons.

All of the identified segments are segments which were listed

because of the presence of a fish consumption advisory for mercury or

polychlorinated biphenyls (PCBs). The MPCA commented that the sole, or

primary source of mercury or PCBs to these waterbodies is airborne

deposition, and that where control of these sources is outside the

State, the State is unable to develop a TMDL. These segments,

therefore, are not appropriate candidates for TMDL development at this

time. The USEPA agrees that technology based standards imposed under

the Clean Air Act which affect sources external to the State of

Minnesota may obviate the future need for TMDL development in these

waterbodies. A separate list of these waterbody segments can be

obtained by contacting the USEPA at the address provided above.

It is important to note that not all waterbodies for which fish

consumption advisories exist fall into the category discussed above.

There are certain waterbodies with fish consumption advisories, and for

which TMDLs have been, or can be successfully developed at this time.

These are not included in the 245 waterbodies on which the MPCA

provided comments.

(5) Two other commenters believed that the proposed list is

inadequate because it fails to identify all water quality limited

segments within the State of Minnesota. Where the State has failed to

do so, one of the commenters stated there is a mandatory duty to

identify all water quality-limited segments, and include them on the

list of waterbodies for which TMDL development is appropriate.

The USEPA interprets section 303(d) to require the identification

of water quality-limited waterbodies for which TMDLs are appropriate.

Such identification is to be based on existing and readily available

data (40 CFR 130.7(b)(5)); consequently, there are no requirements

within the Statute for additional monitoring or analysis. Since 40 CFR

130.7(d)(1) requires the biennial submission of revised section 303(d)

lists to the USEPA for approval, this provision recognizes, that

information will become available in the future, which can be used to

revise and update the decisions made under section 303(d). This

provision supports the USEPA's position that current listings should be

based on currently available information. The submission every 2 years

of a section 303(d) list addresses this issue by allowing changes to

the lists to reflect additional identification of impaired waterbodies,

and allows for removal of waterbodies once standards are attained or

TMDLs developed.

Pursuant to section 305(b) of the CWA, States must prepare, on a

biennial basis, a report to Congress which assesses the status of State

waters. 40 CFR 130.7(b)(5) explicitly states that the section 305(b)

report should be considered when developing the section 303(d) list. In

preparation of the December 8, 1993, proposed list, Minnesota's 1992

305(b) report was extensively used. All waterbodies listed as impaired

in Appendix 1 of that report were considered for listing. For reasons

provided in the December 8, 1992, FR notice, specific comments received

in response to that notice, and elsewhere in this notice some

waterbodies that were listed as impaired in the Fiscal Year 1992

section 305(b) report were not included in today's list.

(6) One commenter stated that even if the only available data are

older than five years, if those data indicate water quality

impairments, then the subject waterbodies should be listed on the

section 303(d) list.

Throughout its regulations and guidance the USEPA has consistently

stated that all information should be used to develop a section 303(d)

list. In using available information, however, it is imperative to

consider its accuracy in order to assure that technically defensible

determinations can be developed. The USEPA believes that data that are

older than five years, or impairment assessments based on a subjective

analysis, carry a large degree of uncertainty as to whether the

impairment is still valid. As such information of this kind must be

considered in light of all available information and cannot represent a

prima facie basis for listing.

(7) One commenter stated that the USEPA must actively solicit all

interested parties for information on which to develop a section 303(d)

list.

Regulations governing the solicitation of public comment may be

found at 40 CFR part 25. The USEPA believes that the publication of the

proposed list in the December 8, 1993, FR notice fulfilled those

requirements, and served as adequate solicitation of comment of all

interested parties. In response to that publication the USEPA received

four comment letters, one by a State agency and three by public

interest groups. These comments have been thoroughly considered in the

development of the final list.

(8) One commenter stated that the proposed list does not meet the

requirements of section 303(d) because it does not contain specific,

calculated TMDLs for each waterbody listed.

Section 303(d)(1)(A) requires the development of a list of

waterbodies for which technology-based effluent limits are not

stringent enough to achieve water quality standards. Section

303(d)(1)(C) requires the development of TMDLs for the waters listed

pursuant to section 303(d)(1)(A). The USEPA has interpreted the Act to

require the development of the section 303(d) list prior to actually

establishing TMDLs. The USEPA believes that to delay listing until the

TMDLs are all completed would either lead to deceptively short lists of

waterbodies, or would delay the process indefinitely. Because TMDL

development can be a complex activity, involving many years of effort

particularly in cases where specific stream conditions must be

analyzed, or model development and calibration must be achieved, only a

few TMDLs can be developed at any particular time. Even so, it is also

recognized that remedial actions can take place before a TMDL is

developed, therefore the Agency believes that the listing process

should go forward as the initial step in order to encourage action even

though actual TMDL development may take place later. It is reasonable,

therefore, to conclude that development of individual TMDLs must follow

list development.

(9) One commenter stated that the proposed list does not contain

any schedule for TMDL development for the next two years, and that the

criteria by which the USEPA prioritized waters on the proposed list

should focus on the protection human health.

The December 8, 1993, Federal Register notice announced as being

available for public review and comment a proposed section 303(d) list

for Minnesota consisting of 447 water quality-limited segments. The

notice further provided that the priority for TMDL development reflects

that contained in the September 16, 1993, section 303(d) list submitted

by the Minnesota Pollution Control Agency. In that submittal, the TMDLs

identified for development through April 1994 were the Minnesota River

and the Redwood River. These waterbodies continue to be listed as high

priority for TMDL development. Because the prioritization of TMDLs as

well as the resources and personnel to develop them are largely under

the control of the State, the USEPA believes it is appropriate to defer

to this State prioritization. It should be noted that these priorities

are subject to annual review by the USEPA and the State in the annual

program planning process under 40 CFR part 130 and as a result of the

biennial updates of the 305(b) lists required under 40 CFR part 131 and

section 305(b) of the CWA.

(10) One commenter stated that the Mississippi River from the

Minneapolis/St. Paul metropolitan area downstream to the Iowa border

should be listed as high priority.

The USEPA agrees that this waterbody is an important resource. In

compliance with requirements of an National Pollutant Discharge

Elimination System permit issued to the Metropolitan Waste Control

Commission (MWCC), studies of phosphorus, the identified pollutant of

concern, are being conducted by both the MWCC and the Minnesota

Pollution Control Agency on the waterbody to define better the sources

of the impairments and to ascertain needed remedial actions. Current

information suggests that much of the loading of phosphorus is

originating in the Minnesota River basin, which is high priority for

TMDL development. It is anticipated that remedial actions in the

Minnesota River basin will have significant positive impact on

magnitude of impairments in the Mississippi River. It is anticipated

that upon the completion of the studies and implementation of

additional controls required through the NPDES permit and the results

of the TMDL being developed for the Minnesota River, downstream impacts

on the Mississippi River will be reduced such that this portion of the

River does not meet the requirements for listing under section 303(d).

Therefore, this waterbody continues to be listed as low priority on the

section 303(d) list.

(11) One commenter questioned why only two waterbodies were listed

on the section 303(d) list.

In the December 8, 1993, FR notice, USEPA proposed a list of 447

waterbody segments. This was in addition to the two waterbodies which

the State of Minnesota has identified as appropriate for TMDL

development. While the USEPA agrees with the State of Minnesota, that

those two waterbodies warrant listing pursuant to 303(d), the USEPA

also believes, that additional waterbodies should be listed, and for

that reason has proceeded with today's notice.

(12) One commenter recommended that the following waterbodies be

listed on the section 303(d) list as high priority for TMDL

development.

--All Minnesota Outstanding Resource Value Waters

--All Minnesota designated trout streams and trout lakes

--All Minnesota designated canoe trails

--All Federal or Minnesota designated wild, scenic, and recreational

rivers

--All waterbodies within any National Wildlife Refuge

--The entire length of the Mississippi River (presumed to include

sections both upstream and downstream of the Minneapolis/St. Paul

metropolitan area

--Lake Superior

As stated above, the resources and personnel necessary to develop

TMDLs are largely under the control of the State. In addition, the

State's proximity to its public allows it to evaluate priorities in

light of the public need more readily than USEPA. Consequently the

USEPA believes it is appropriate to defer to the State in the matter of

prioritization of waterbodies for TMDL development.

(B) Revisions to the Proposed Notice

As a result of the public comments received and continuing review

of the proposed notice by the USEPA, the following changes have been

made to the final identification of the section 303(d) water quality-

limited segments for the State of Minnesota:

(1) The final list of waterbodies for which TMDL development would

be appropriate has been revised to include the 23 additional steam

segments which the State has requested be included on the list, due to

proximity to, and influence upon, other waterbodies for which TMDLs are

being developed.

(2) Waterbodies for which fish consumption advisories exist, and

for which remedial measures lie outside the control of the State of

Minnesota have been separately identified.

(3) The final list of waterbodies for which TMDL development is

appropriate excludes 65 stream segments included in the proposed list,

for which the State has provided documentation that the information

leading to the USEPA's decision to include these segments on the

proposed list was not based on the most current information, and the

more current information reveals that TMDLs are no longer appropriate.

(4) The final list excludes nine stream segments identified in the

State's comments which were described as meeting the designated uses,

since the exceedences of numeric water quality criteria noted by the

USEPA as the basis for our proposal to include these segments on the

303(d) list were due to naturally occurring background concentrations.

(C) Final Notice

This notice is being issued pursuant to section 303(d)(2) of the

CWA. Under this section, the USEPA is required to publish an

identification of water quality-limited segments if a state submission

is disapproved. The disapproval of the Minnesota submission occurred on

August 9, 1993.

This notice identifies 72 water quality limited waterbodies for

which TMDL development is appropriate and further identifies three

waterbodies for which TMDL development is scheduled to be initiated

over the next two years. This notice further identifies 245 waterbodies

for which TMDL development is not feasible at this time. This

constitutes USEPA's final determination.

Dated: June 2, 1994.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 94-14536 Filed 6-15-94; 8:45 am]

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