Water Quality Standards for Surface Waters in Arizona

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[WH-FRL-5408-3]

Water Quality Standards for Surface Waters in Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comments.

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SUMMARY: EPA is proposing water quality standards that would be

applicable to waters of the United States in the State of Arizona. The

proposed standards address those six aspects of Arizona's water quality

standards that EPA, Region 9 disapproved in 1993 and 1994. EPA is

taking this action at this time pursuant to a court order to propose

such standards by January 31, 1996. The proposed standards would

establish standards for waters that are exempt from State-adopted

standards due to a State rule related to mining, designate fish

consumption as a use for certain waters, and make certain provisions in

the State's standards related to ``practical quantitation limits''

inapplicable for Clean Water Act purposes. In addition, this notice

proposes requirements related to implementation of certain narrative

criteria in the State's standards, and solicits comment on the policies

that EPA, Region 9, intends to use to implement these criteria as they

relate to nutrients, chronic toxicity, and the effects of mercury on

wildlife.

DATES: EPA will hold a public hearing on its proposed actions on

February 29, 1996, in Phoenix, AZ. EPA will consider written comments

on the proposed actions received by February 28, 1996, or March 8,

1996.

nd solicits comment on the policies

that EPA, Region 9, intends to use to implement these criteria as they

relate to nutrients, chronic toxicity, and the effects of mercury on

wildlife.

DATES: EPA will hold a public hearing on its proposed actions on

February 29, 1996, in Phoenix, AZ. EPA will consider written comments

on the proposed actions received by February 28, 1996, or March 8,

1996.

ADDRESSES: Comments should be addressed to Catherine Kuhlman, Chief,

Permits and Compliance Branch, W-5, Water Management Division, EPA,

Region 9, 75 Hawthorne St., San Francisco, CA 94105. The public hearing

will be held February 29, 1996, from 2 p.m. to 4 p.m. at the Arizona

Department of Environmental Quality (ADEQ) Public Meeting Room, South

Mall, ADEQ, 3033 North Central Ave., Phoenix, AZ 85012. This action's

administrative record is available for review and copying at 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. In the event of a government shutdown, also call (415)

744-1978 for information. 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. 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 the 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

quality standard shall include a designated use or uses to be

made of the water and criteria necessary to protect the 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) (33 U.S.C. 1313(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'' in Arizona's

standards. In April

dments 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'' in Arizona's

standards. In April

1994, EPA, Region 9, also disapproved Arizona's lack of water quality

criteria protective of wildlife for mercury.

Arizona is addressing the disapproved elements during the course of

its current triennial review of its standards. The Arizona Department

of Environmental Quality (ADEQ) has held public meetings and received

public comment and, on December 29, 1995, published proposed revisions

to its standards. See, 1 Ariz. Admin. Reg. 2811. ADEQ has indicated

that it intends as part of its current rulemaking to revise the

provision exempting mining impoundments. ADEQ has also indicated that

it intends to revise its standards to add the fish consumption use to

waters which Arizona has already designated as having the aquatic and

wildlife (cold water fishery) or aquatic and wildlife (warm water

fishery) uses. ADEQ has also indicated that it intends to delete its

list of practical quantitation limits (PQLs) from its water quality

standards regulations. Under ADEQ's anticipated timetable, revised

water quality standards pursuant to the current triennial review will

become effective no later than October 1996.

In addition, ADEQ completed a ``use attainability analysis'' (UAA)

related to the fish consumption use for effluent dominated waters, and

a UAA related to fish consumption and full body contact uses for

ephemeral waters in the State. EPA, Region 9, approved those UAAs in

November 1995.

ADEQ is participating, with EPA, Region 9, and the U.S

w will

become effective no later than October 1996.

In addition, ADEQ completed a ``use attainability analysis'' (UAA)

related to the fish consumption use for effluent dominated waters, and

a UAA related to fish consumption and full body contact uses for

ephemeral waters in the State. EPA, Region 9, approved those UAAs in

November 1995.

ADEQ is participating, 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. Moreover, ADEQ intends to complete implementation

procedures for the State's narrative toxic and nutrient criteria. ADEQ

is developing its guidance document pertaining to the narrative

nutrient standard. ADEQ has also committed to develop implementation

procedures for its narrative toxic criterion. ADEQ expects to submit

the final guidance document pertaining to its narrative criterion to

EPA no later than December 1996.

Although Arizona has made progress in revising its standards, it

has not yet completed its process for revising the portions of the

State's standards to address EPA, Region 9's disapprovals in September

1993 and April 1994.

On November 1, 1995, the United States District Court for the

District of Arizona ordered EPA, within 90 days, to prepare and publish

proposed regulations setting forth revised or new water quality

standards for those standards disapproved in September 1993 and April

1994. Defenders of Wildlife v. Browner, Docket No. Civ 93-234 TUC ACM.

Consistent with the Court's order, this Federal Register notice

proposes standards related to the mining exclusion, fish consumption

designated use, PQLs, and implementation policies and procedures as

they relate to the disapproval. This notice also describes policies

that EPA, Region 9, intends to use in order to implement State

narrative criteria as they relate to toxicity, nutrients, and mercury

tent with the Court's order, this Federal Register notice

proposes standards related to the mining exclusion, fish consumption

designated use, PQLs, and implementation policies and procedures as

they relate to the disapproval. This notice also describes policies

that EPA, Region 9, intends to use in order to implement State

narrative criteria as they relate to toxicity, nutrients, and mercury.

The Court's order also directs EPA to promulgate final water quality

standards 90 days after proposal unless Arizona has adopted revised or

new water quality standards which EPA determines are in accordance with

the CWA.

Finally, it should be noted that EPA's longstanding practice in the

water quality standards program is to remove any final federal rule

after the State adopts appropriate rules which meet the CWA

requirements and are approved by EPA. Thus, EPA strongly encourages the

State to adopt appropriate standards so that EPA can remove any final

rule adopted subsequent to this proposal.

B. Proposed Standards

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 provides that

Arizona's standards do not apply to:

``Man-made surface impoundments and associated ditches and

conveyances used in the extraction, beneficiation and processing of

metallic ores, including pregnant leach solution ponds, raffinate

ponds, tailing impoundments, decant ponds, concentrate or tailing

thickeners, blowdown water ponds, ponds and sumps in mine pits

associated with dewatering activity, ponds holding water that has

come into contact with process or product and that is being held for

recycling, spill or upset catchment ponds or ponds used for on-site

remediation provided that any discharge from any such surface

impoundment to a navigable water is permitted under the National

Pollutant Discharge Elimination System program.''

s in mine pits

associated with dewatering activity, ponds holding water that has

come into contact with process or product and that is being held for

recycling, spill or upset catchment ponds or ponds used for on-site

remediation provided that any discharge from any such surface

impoundment to a navigable water is permitted under the National

Pollutant Discharge Elimination System program.''

In its December 1995 notice, ADEQ proposed to delete R18-11-103 in

its entirety, and proposed to revise R18-11-102 to provide that

Arizona's standards do not apply to:

``Man-made surface impoundments and associated ditches and

conveyances used in the extraction, beneficiation and processing of

metallic ores, including pits, pregnant leach solution ponds,

raffinate ponds, tailing impoundments, decant ponds, concentrate or

tailing thickeners, blowdown water ponds, ponds and sumps in mine

pits associated with dewatering activity, ponds holding water that

has come in contact with process or product and that is being held

for recycling, spill or upset catchment ponds, or ponds used for on-

site remediation that are located on either lands that were not and

are not surface waters or that are located on fast lands.''

Under the rules proposed by ADEQ in December 1995, the term ``fast

lands'' means

``land that was once a surface water but no longer remains a

surface water because it has been and remains legally converted to

land by the discharge of dredged or fill material that: (1) Was

authorized by a section 404 permit; (2) exempt from section 404

permit requirements; or (3) occurred before there was a section 404

permit requirement for the discharge of the dredged or fill

material.''

`land that was once a surface water but no longer remains a

surface water because it has been and remains legally converted to

land by the discharge of dredged or fill material that: (1) Was

authorized by a section 404 permit; (2) exempt from section 404

permit requirements; or (3) occurred before there was a section 404

permit requirement for the discharge of the dredged or fill

material.''

See, proposed R18-11-101.24.

Under section 303 of the CWA, States must adopt standards for

waters of the United States within the State. States 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.

While many of the mining impoundments which Arizona apparently

intended to exclude from standards by R18-11-103.2 may not be waters of

the United States, the rule's blanket exemption does not distinguish

among water bodies based upon their status as waters of the United

States, and therefore has the potential to exclude from standards a

water body that is a water of the United States. For example, mining-

related impoundments made by damming a natural stream or river would

appear to be exempt from Arizona's standards under R18-11-103.2 if any

discharge from the impoundment is permitted under section 402 of the

CWA or if the stream or river is fully dammed so that any release to a

water of the United States is prevented.

In order to ensure that the standards governing waters of the

United States in Arizona are consistent with the CWA, EPA is proposing

to adopt standards for any waters of the United States not governed by

State standards due to R18-11-103.2

ment is permitted under section 402 of the

CWA or if the stream or river is fully dammed so that any release to a

water of the United States is prevented.

In order to ensure that the standards governing waters of the

United States in Arizona are consistent with the CWA, EPA is proposing

to adopt standards for any waters of the United States not governed by

State standards due to R18-11-103.2. Under the rule proposed by EPA, if

a water of the United States governed by R18-11-103.2 is an impoundment

of a water of the United States, it would have the standards of the

water body impounded. If a water of the United States governed by R18-

11-

103.2 is not such an impoundment, under the proposed rule it will have

the standards of the waterbody to which it is a tributary. Under the

proposed rule, only those water bodies which are waters of the United

States will be governed by such standards. Water bodies described in

R18-11-103.2 which are not waters of the United States are, of course,

not subject to water quality standards under the CWA, including the

standards that would be adopted in this rulemaking.

EPA is seeking comment on the Federal rule proposed in this notice.

In particular, EPA is seeking comment identifying any cases in which a

commenter believes that a water of the United States would have an

inappropriate water quality standard if the proposed Federal rule is

adopted. EPA is also seeking comment on the exclusion which Arizona has

proposed in its December 29, 1995, notice.

2. ``Fish Consumption'' Use

on the Federal rule proposed in this notice.

In particular, EPA is seeking comment identifying any cases in which a

commenter believes that a water of the United States would have an

inappropriate water quality standard if the proposed Federal rule is

adopted. EPA is also seeking comment on the exclusion which Arizona has

proposed in its December 29, 1995, notice.

2. ``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 has completed UAAs showing that it need not designate the FC

use for those effluent dominated or ephemeral waters which it has 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, proposed R-18-11-104 and Appendix B of Title 18, Chapter 11,

Article 1, of Arizona Administrative Rules and Regulations. However,

ADEQ has not completed that revision to its regulations.

Section 101(a)(2) (33 U.S.C

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, proposed R-18-11-104 and Appendix B of Title 18, Chapter 11,

Article 1, of Arizona Administrative Rules and Regulations. However,

ADEQ has not completed that revision to its regulations.

Section 101(a)(2) (33 U.S.C. 1251(a)(2)) of the CWA establishes

water quality goals for the nation, including a goal of water quality

which provides for the protection and propagation of fish and wildlife

and provides for recreation in and on the water by 1983. EPA's rules

regarding the establishment of water quality standards confirm that

such standards should, whenever attainable, provide water quality which

satisfies the section 101(a)(2) goal. See, e.g., 40 CFR 131.2,

131.3(i), 131.6, and 131.20(a). In addition, whenever a State has

designated uses that do not include the uses specified in section

101(a)(2), the State must conduct a UAA. 40 CFR 131.10(j). Section

101(a)(2) states that water quality should provide for the protection

of fish, and EPA has implemented this provision in the past by seeking

to ensure that such fish are suitable for human consumption. See, e.g.,

40 CFR 131.36 (containing toxics criteria for those states not

complying with section 303(c)(2)(B) of the CWA). Accordingly, EPA is

proposing to designate the fish consumption use for those waters in

Arizona having an ``aquatic and wildlife'' use, in those cases where

the requirements for completing a UAA have not been met.

The proposed Federal rule would add the FC use to 100 stream

segments or other water bodies. The affected stream segments and water

bodies are listed in proposed section 131.31(c). Each of the affected

waters has already been designated by Arizona as having the ``aquatic

and wildlife (cold water fishery)'' or ``aquatic and wildlife (warm

water fishery)'' use

not be compromised by constraints related to analytical methods. EPA,

Region 9, further stated that Arizona may choose to include the PQLs in

a policy or guidance document separate from the standards regulations.

Inclusion of specific numeric PQLs in water quality standards is

inappropriate because the criteria must be set at levels protective of

the designated uses. See section 303(c)(2)(A). While constraints in the

ability of analytical methods to detect pollutants below certain levels

may be an appropriate factor in assessing compliance of a particular

discharger with water quality-based effluent limitations, the inclusion

of pollutant-specific numeric PQLs in the water quality standards

themselves has the potential to compromise the criteria adopted by the

State in its standards.

In December 1995, ADEQ proposed deleting the PQLs now prescribed in

Appendix C from its regulations and adopting the PQLs in a guidance

document. See, proposed R18-11-120. ADEQ has not completed its proposed

rulemaking, nor has it completed its procedures for adopting the PQLs

in the form of guidance.

EPA is proposing to adopt a provision in this federal rule that

would modify the purpose of the PQLs prescribed in Arizona's water

quality standards regulations, but this provision would not otherwise

modify Arizona's water quality standards regulations as they relate to

derivation of water quality criteria. Under the proposed Federal rule,

the practical quantitation limits in Appendix C would not be water

quality standards for the purposes of the CWA. EPA is seeking comment

on the proposal.

C. Implementation Policies

quality standards regulations, but this provision would not otherwise

modify Arizona's water quality standards regulations as they relate to

derivation of water quality criteria. Under the proposed Federal rule,

the practical quantitation limits in Appendix C would not be water

quality standards for the purposes of the CWA. EPA is seeking comment

on the proposal.

C. Implementation Policies

Certain of the disapproved elements of Arizona's standards relate

to procedures for implementing the state's narrative water quality

criteria contained in R18-11-108. EPA has proposed two water quality

standard provisions that would require the identification of

appropriate procedures and methods for interpreting and implementing

the state's narrative criteria with respect to toxicity and nutrients,

and the implementation of a monitoring program related to mercury, in

order to implement the requirements of R18-11-108. See proposed

sections 131.31 (e) and (f). As EPA explained in its disapproval

actions, 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's position is that there are advantages to

detailing such implementation procedures in the form of guidance rather

than regulation, since guidance leaves the implementing agency

flexibility in addressing the multitude of conditions and circumstances

that can arise in implementation of the criteria. Guidance can also be

revised more readily in response to advances in our understanding of

these issues. Therefore, in addition to proposing the language

contained in sections 131.31 (e) and (f), EPA is soliciting public

comment on guidance documents EPA intends to use in carrying out this

provision. The particulars of these proposals are discussed below.

EPA is proposing the language in sections 131.31(e) and (f) in

compliance with section 303(c)(4) of the CWA and the District Court's

order in Defenders of Wildlife

to proposing the language

contained in sections 131.31 (e) and (f), EPA is soliciting public

comment on guidance documents EPA intends to use in carrying out this

provision. The particulars of these proposals are discussed below.

EPA is proposing the language in sections 131.31(e) and (f) in

compliance with section 303(c)(4) of the CWA and the District Court's

order in Defenders of Wildlife. However, as stated in EPA's

disapprovals, EPA does not believe that it is necessary that the State

itself adopt regulatory provisions addressing these implementation

issues. Therefore, should the State adopt acceptable policies and

procedures prior to promulgation of a final rule by EPA, the Agency

would not include the regulatory provisions in the final rule.

1. Implementation Policy for Narrative Nutrient Criteria

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. EPA

noted at the time of the disapproval that Arizona had not shown that

its narrative criteria provided protection substantially equivalent to

that provided by numeric criteria related to nutrients that EPA had

adopted for various waters in Arizona. See, 40 CFR 131.31

R18-11-108.A.6. At the time of the disapproval, Arizona had

not adopted an implementation process for its narrative criteria. EPA

noted at the time of the disapproval that Arizona had not shown that

its narrative criteria provided protection substantially equivalent to

that provided by numeric criteria related to nutrients that EPA had

adopted for various waters in Arizona. See, 40 CFR 131.31.

EPA is proposing section 131.31(e) to address this deficiency in

the State's standards and is soliciting comment regarding use of a

policy to guide the Region's implementation of Arizona's narrative

nutrient criteria set forth in ``EPA, Region 9, Policy for the

Implementation of Arizona's Narrative Nutrient Criteria.'' Region 9's

policy as set forth in that document is a general statement of policy,

intended to guide the Region's implementation of its activities related

to the narrative nutrient criteria, particularly the development of

permit conditions in Section 402 NPDES permits to ensure the narrative

criteria are met.

The document which EPA, Region 9, intends to use as its

implementation policy for the narrative nutrient criteria is available

for review and copying at Water Management Division, EPA, Region 9, 75

Hawthorne St., San Francisco, CA 94105. Copies of the document may be

obtained by contacting Gary Wolinsky at the address noted above. EPA,

Region 9, is seeking comment on the policy.

2. Implementation Policy for Narrative Toxicity Criterion

use as its

implementation policy for the narrative nutrient criteria is available

for review and copying at Water Management Division, EPA, Region 9, 75

Hawthorne St., San Francisco, CA 94105. Copies of the document may be

obtained by contacting Gary Wolinsky at the address noted above. EPA,

Region 9, is seeking comment on the policy.

2. Implementation Policy for Narrative Toxicity Criterion

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. EPA, Region 9, believed that, without

procedures or a policy governing toxicity, the narrative criterion may

not fully protect Arizona's designated uses.

EPA is proposing section 131.31(e) to address this deficiency in

the State's standards and is soliciting comment regarding EPA's intent

to utilize a biomonitoring implementation policy for Arizona's

narrative criterion as it relates to chronic toxicity. The policy is

set forth in ``EPA, Region 9, Policy on Using Biomonitoring to

Implement Arizona's Narrative Toxicity Criterion''. Region 9's policy

as set forth in that document is not a rule, but a general statement of

policy to guide the Region's implementation of its activities related

to the narrative toxicity criterion, particularly the Section 402 NPDES

permit program and development of permit conditions to ensure the

narrative criterion is met.

The document which EPA, Region 9, intends to use as its

biomonitoring implementation policy for Arizona's narrative criterion

as it relates to chronic toxicity is available for review and copying

at Environmental Protection Agency, Region 9, Water Management

Division, 75 Hawthorne St., San Francisco, CA 94105

gram and development of permit conditions to ensure the

narrative criterion is met.

The document which EPA, Region 9, intends to use as its

biomonitoring implementation policy for Arizona's narrative criterion

as it relates to chronic toxicity is available for review and copying

at Environmental Protection Agency, Region 9, Water Management

Division, 75 Hawthorne St., San Francisco, CA 94105. Copies of the

document may be obtained by contacting Gary Wolinsky at the address

noted above. EPA, Region 9, is seeking comment on the policy.

3. 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 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 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 have led to the development of an alternative program to

address the problem of mercury's impacts on endangered species

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 have led to the development of an alternative program to

address the problem of mercury's impacts on endangered species. At

present, there is inadequate information regarding mercury's impacts on

wildlife in Arizona for EPA to develop a scientifically sound wildlife

criterion for this pollutant. For this reason, EPA, the State and FWS

worked to develop an alternative program for addressing potential

problems associated with the impacts of mercury on wildlife. EPA

intends the program will help ensure that existing protection for

wildlife contained in the State's narrative criterion for toxicity will

be properly implemented.

EPA is therefore proposing section 131.31(f) to address this

deficiency in the State's standards, and is soliciting comment upon

EPA's intent to implement a monitoring and source identification

program to ensure that the requirements of this provision are met. The

program is described in ``EPA, Region 9, Monitoring and Source

Identification Program for Mercury to Assess Attainment of Arizona's

Narrative Toxic Criterion.'' One of the program's objectives is to

assess the magnitude and extent of mercury bioaccumulation in the prey

base of the

t a monitoring and source identification

program to ensure that the requirements of this provision are met. The

program is described in ``EPA, Region 9, Monitoring and Source

Identification Program for Mercury to Assess Attainment of Arizona's

Narrative Toxic Criterion.'' One of the program's objectives is to

assess the magnitude and extent of mercury bioaccumulation in the prey

base of the

bald eagle in Arizona. Under the program, EPA, ADEQ, the Arizona Game

and Fish Department, and FWS will conduct a tissue monitoring program

to evaluate the threat posed by mercury to bald eagles nesting along

watercourses in Arizona. A concurrent monitoring program of the

International Boundary Water Commission in the lower Colorado River

basin will assess the bioaccumulation of mercury in the prey base of

the brown pelican and the Yuma clapper rail. The program is not

designed to immediately develop a specific mercury water quality

criterion for the protection of wildlife. It instead is designed to

identify water bodies where the bioaccumulation of mercury may affect

endangered species, to guide the development of more extensive sampling

programs to identify and quantify the contribution of mercury sources

in watersheds where mercury is found to be bioaccumulating in aquatic

prey species, and to guide the development of controls for such sources

including, where appropriate, the adoption of site-specific water

quality criteria.

EPA believes that Arizona's narrative criterion for toxicity

contained in section R18-11-108.A, as supplemented by proposed section

131.31(f) and the program described above, are the most reasonable

approach at this time for protecting the designated uses, including use

of Arizona water by listed threatened and endangered wildlife species.

EPA is currently engaged in consultation with the FWS regarding this

approach. The Service has indicated its overall approval of this

approach to dealing with the problem of mercury as it relates to the

protection of wildlife

, are the most reasonable

approach at this time for protecting the designated uses, including use

of Arizona water by listed threatened and endangered wildlife species.

EPA is currently engaged in consultation with the FWS regarding this

approach. The Service has indicated its overall approval of this

approach to dealing with the problem of mercury as it relates to the

protection of wildlife. On January 17, 1996, the Service in a letter to

EPA, Region 9, revised its determination which initially identified

adoption of a mercury criteria as a reasonable and prudent alternative

for removing jeopardy to endangered species.

EPA will consider comment upon the program, for the purpose of

determining whether modifications to the program are warranted. The

program description is available for review and copying at Water

Management Division, EPA, Region 9, 75 Hawthorne St., San Francisco, CA

94105. Copies of the documents may be obtained by contacting Gary

Wolinsky at the address noted above.

C. 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 proposal would establish standards for waters

which are presently unprotected by State-adopted standards due to the

State's mining exclusion, would add the fish consumption use to various

waters which presently do not have the protection afforded by that

designation, and would remove the potential restriction on the

protectiveness of the standards presented by the PQLs in the standards

regulations. Today's action also provides protection for endangered and

threatened species by seeking comment designed to improve the policies

which EPA, Region 9, intends to use to guide its implementation of the

State's nutrient- and toxicity-related criteria

designation, and would remove the potential restriction on the

protectiveness of the standards presented by the PQLs in the standards

regulations. Today's action also provides protection for endangered and

threatened species by seeking comment designed to improve the policies

which EPA, Region 9, intends to use to guide its implementation of the

State's nutrient- and toxicity-related criteria.

EPA has initiated section 7 consultation under the Endangered

Species Act with the FWS regarding this rulemaking, and requested

concurrence from the FWS that this action is unlikely to adversely

affect threatened or endangered species. On January 17, 1996, the FWS

in a letter to EPA, Region 9 agreed that various elements of EPA's

proposal will improve the water quality standards program in Arizona

and are not likely to adversely affect listed species nor result in the

destruction or adverse modification of critical habitat.

D. 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

my, 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 President's priorities, or the principles set forth in

the Executive Order.

Because the annualized cost of this proposed 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.

E. 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. In addition, EPA held a meeting on

December 14, 1995, in Phoenix, AZ, with members of the potentially

affected public including municipalities, industries and environmental

groups, to discuss the proposed action. EPA has scheduled a public

hearing on the proposed action for February 29, 1996.

F. Regulatory Flexibility Act

gh conference calls, meetings and

review of draft and final documents. In addition, EPA held a meeting on

December 14, 1995, in Phoenix, AZ, with members of the potentially

affected public including municipalities, industries and environmental

groups, to discuss the proposed action. EPA has scheduled a public

hearing on the proposed action for February 29, 1996.

F. 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 proposed rulemaking,

small entities are small dischargers, whether industrial or municipal.

The Agency concludes that this proposed rule would not have a

significant impact on a substantial number of small entities. This

proposed rule is limited to waters within Arizona and would not

substantially impact the terms and conditions that dischargers would

need to meet to comply with water quality standards. The requirements

affect monitoring requirements that most likely will be included in

future renewals of National Pollutant Discharge Elimination System

(NPDES) permits and in new NPDES permits. There may be treatment

process changes required in individual cases where the pollutant

specific monitoring requirements identify non-compliance. EPA expects

these process changes to be rare.

G. 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

anges to be rare.

G. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted.

Under section 204 of the UMRA, EPA generally must develop a process

to permit elected officials of State, local and tribal governments (or

their designated employees with authority to act on their behalf) to

provide meaningful and timely input in the development of regulatory

proposals containing significant Federal intergovernmental mandates.

These consultation requirements build on those of Executive Order 12875

(``Enhancing the Intergovernmental Partnership'').

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

gnificant Federal intergovernmental mandates.

These consultation requirements build on those of Executive Order 12875

(``Enhancing the Intergovernmental Partnership'').

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 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.

EPA has 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.

EPA has determined that this rule contains no regulatory

requirements that might significantly or uniquely affect small

governments.

F. Paperwork Reduction Act

This proposed action requires no information collection activities

subject to the Paperwork Reduction Act, and therefore no information

collection requirement (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. It should be noted that the

monitoring program required in proposed Section 131.31(f) is not

intended to impose additional reporting or recordkeeping burden on the

State.

List of Subjects in 40 CFR Part 131

Environmental protection, Water pollution control, Water quality

standards, Toxic pollutants.

get (OMB) for review in compliance with the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq. It should be noted that the

monitoring program required in proposed Section 131.31(f) is not

intended to impose additional reporting or recordkeeping burden on the

State.

List of Subjects in 40 CFR Part 131

Environmental protection, Water pollution control, Water quality

standards, Toxic pollutants.

Dated: January 23, 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 proposed to be 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), (c), (d),

(e), and (f) to read as follows:

Sec. 131.31 Arizona.

* * * * *

(b) A water of the United States to which State adopted standards

are not applicable by operation of R18-11-103.2 is subject to the water

quality standards of the water of the United States from which it is

impounded or, if not impounded from a water of the United States, the

water quality standards of the water of the United States to which it

is a tributary.

(c) 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:

COLORADO MAIN STEM RIVER BASIN: Hualapai Wash, Jacob Lake, Lonetree

Canyon Creek, Peeple's Canyon Creek, Red Canyon Creek, Sawmill Wash,

Warm Springs Creek

LITTLE COLORADO RIVER BASIN: Boot Lake, Camillo Tank, Chilson Tank, Cow

Lake, Crisis Lake (Snake Tank #2), Daves Tank, Deep Tank, Horse Lake,

Long Lake--upper, Mud Lake, Pine Tank, Potato Lake, Puerco River,

Quarter Circle Bar Tank, Rogers Reservoir, Sponseller Lake, Vail Lake,

Zuni River

MIDDLE GILA RIVER BASIN: Aqua Fria River (Camelback Road to Avondale

WWTP), Antelope Creek, Beehive Tank, Black Canyon Creek, Centennial

Wash Ponds, Galena Gulch, Gila River (Feli

ke, Crisis Lake (Snake Tank #2), Daves Tank, Deep Tank, Horse Lake,

Long Lake--upper, Mud Lake, Pine Tank, Potato Lake, Puerco River,

Quarter Circle Bar Tank, Rogers Reservoir, Sponseller Lake, Vail Lake,

Zuni River

MIDDLE GILA RIVER BASIN: Aqua Fria River (Camelback Road to Avondale

WWTP), Antelope Creek, Beehive Tank, Black Canyon Creek, Centennial

Wash Ponds, Galena Gulch, Gila River (Felix Road to the Salt River),

Gila River (Painted Rock Dam to the Colorado River), Hassayampa Lake,

Hit Tank, Lynx Creek, Painted Rock Lake, Perry Mesa Tank, Queen Creek

(Headwaters to the Superior WWTP), Queen Creek (Below Potts Canyon),

Turkey Creek

RED LAKE BASIN: Red Lake

RIO MAGDALENA BASIN: Holden Canyon Creek, Sycamore Canyon Creek

RIO YAQUI BASIN: Abbot Canyon, Blackwater Draw, Buck Canyon, Dixie

Canyon

Dry Canyon, Gadwell Canyon, Glance Creek, Gold Gulch, Johnson Canyon,

Mexican Canyon, Mule Gulch (Headwaters to Bisbee WWTP), Soto Canyon

SALT RIVER BASIN: Coon Creek, Gold Creek, Salt River (I-10 bridge to

the 23rd Avenue WWTP)

SAN PEDRO RIVER BASIN: Buehman Canyon Creek, Copper Creek, Garden

Canyon Creek, San Pedro River (Redington to the Gila River), Turkey

Creek

SANTA CRUZ RIVER BASIN: Agua Caliente Wash, Arivaca Creek, Bog Hole

Tank, Cienega Creek (Headwaters to I-10), Cienega Creek (Below Del Lago

dam), Davidson Canyon (I-10 to Cienega Creek), Empire Gulch (Below

Empire Ranch Spring), Gardner Canyon Creek, Harshaw Wash, Huachuca

Tank, Nogales Wash, Santa Cruz River (International Boundary to Nogales

WWTP), Soldier Lake, Sonoita Creek (Above the town of Patagonia),

Tanque Verde Creek, Tinaja Wash, Williams Ranch Tanks

UPPER GILA RIVER BASIN: Apache Creek, Bitter Creek, Chase Creek, Evans

Pond, Markham Creek, Pigeon Creek, San Simon River

VERDE RIVER BASIN: Aspen Creek, Barrata Tank, Bitter Creek (Headwaters

to the Jerome WWTP), Bitter Creek (Below 2.5 km downstream of the

Jerome WWTP), Fossil Springs, Foxboro Lake, Granite Creek, Horse Park

Tank, Meath Dam Tank, Willow Valley Lake

WILLCOX PLAY

s Ranch Tanks

UPPER GILA RIVER BASIN: Apache Creek, Bitter Creek, Chase Creek, Evans

Pond, Markham Creek, Pigeon Creek, San Simon River

VERDE RIVER BASIN: Aspen Creek, Barrata Tank, Bitter Creek (Headwaters

to the Jerome WWTP), Bitter Creek (Below 2.5 km downstream of the

Jerome WWTP), Fossil Springs, Foxboro Lake, Granite Creek, Horse Park

Tank, Meath Dam Tank, Willow Valley Lake

WILLCOX PLAYA: High Creek, Willcox Playa

(d) Appendix C (entitled ``Practical Quantitation Limits (PQLs)) of

Title 18, Chapter 11, Article 1, of Arizona Administrative Rules and

Regulations

shall not be applicable as a water quality standard for the purposes of

the CWA.

(e) To implement the requirements of R18-11-108.A.5 and R-18-11-

108.A.6 with respect to toxicity and nutrients, EPA shall identify

appropriate procedures and methods for interpreting and implementing

these requirements.

(f) 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. 96-1550 Filed 1-26-96; 8:45 am]

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