[Federal Register Volume 66, Number 144 (Thursday, July 26, 2001)]
[Proposed Rules]
[Pages 38967-38969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18650]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 140

[FRL-7018-3]


Marine Sanitation Devices (MSDs); Proposed Regulation to 
Establish a No Discharge Zone (NDZ) for State Waters within the 
Boundaries of the Florida Keys National Marine Sanctuary (FKNMS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to establish a NDZ for State waters within 
the boundaries of the FKNMS pursuant to section 312 (f)(4)(A) of the 
Clean Water Act. This action is being taken in response to an October 
27, 1999 resolution passed by the FKNMS Water Quality Protection 
Program Steering Committee and a December 8, 1999 resolution of the 
Board of County Commissioners of Monroe County, Florida to establish a 
NDZ area for State waters within the FKNMS, which led to a December 7, 
2000 letter from the Governor of Florida requesting this action. A map 
which delineates the area to be designated can be obtained or viewed by 
accessing the FKNMS's Web site at ``http://www.fknms.nos.noaa.gov/'', 
by calling the Sanctuary office at (305) 743-2437, or by writing to the 
Sanctuary Superintendent at P.O. Box 500368, Marathon, Florida, 33050. 
It should also be noted that the National Oceanic and Atmospheric 
Administration (NOAA) plans to pursue NDZ status for Federal waters 
within the FKNMS in the near future. Currently, there are about 30 pump 
out facilities located throughout the Florida Keys. To obtain a list of 
these facilities you may contact George Garrett, Director of Marine 
Resources for Monroe County, at (305) 289-2507, E-mail at 
[email protected], or by writing to Monroe County Service 
Center, 2798 Overseas Highway, Suite 420, Marathon, Florida, 33050-
2227.

DATES: Comments must be submitted to EPA on or before August 27, 2001.

ADDRESSES: Written comments or requests for information may be 
submitted to Wesley B. Crum, Chief, Coastal and NonPoint Source 
Programs, EPA Region 4, 61 Forsyth Street, Atlanta, Georgia, 30303-
8960.

SUPPLEMENTARY INFORMATION:

I. Background

    The Florida Keys are a national treasure of international acclaim 
that contain unique environments and possess high value to humans when 
properly conserved. Adjacent to the Florida Keys land mass are located 
spectacular, unique nationally significant marine environments, 
including seagrass meadows, mangrove islands, and extensive living 
coral reefs. These marine environments support rich biological 
communities possessing extensive conservation, recreational, 
commercial, ecological, historical, research, educational, and 
aesthetic values. These marine environments are the maritime equivalent 
of tropical rain forests in that they support high levels of biological 
diversity, are fragile and easily susceptible to damage from human 
activities. The economy of the Florida Keys is based in large part on 
tourism and fisheries that are directly tied to the ecological 
resources and quality of the waters surrounding the Florida Keys. In 
recognition of this, Congress created the FKNMS with the signing of 
H.R. 5905 (Public Law 101-605, the FKNMS and Protection Act) on 
November 16, 1990. The purpose of a marine sanctuary is to protect 
resources and their conservation, recreational, ecological, historical, 
research, educational, or aesthetic values through comprehensive long-
term management. The mission of the National Marine Sanctuary Program 
is to identify, designate, and comprehensively manage marine areas of 
national significance. National Marine Sanctuaries are established for 
the public's long-term benefit, use, and enjoyment. Congress also 
recognized the critical role of water quality in maintaining the 
ecological resources of the Florida Keys, and directed the U.S. EPA and 
the State of Florida to develop a Water Quality Protection Program 
(WQPP) for the Sanctuary. The WQPP was finalized in September 1996 and 
implementation of the numerous recommended actions within the WQPP is 
ongoing.

[[Page 38968]]

    The State of Florida recognized the importance of good water 
quality to ecosystem structure and function and declared the waters 
surrounding the Florida Keys as ``Outstanding Florida Waters'' or OFW 
in 1985. Florida Statute grants the Florida Department of Environmental 
Protection the power to establish rules that provide for the category 
of water bodies called OFW, which are worthy of special protection 
because of their natural attributes. No degradation of water quality is 
allowed in OFW. In addition, the Florida Keys have been designated as 
an ``Area of Critical State Concern''. The objective of this program is 
to provide another level of legislative review for development plans 
within areas where unique and fragile natural resources exist and local 
protection may be lacking. ``Areas of Critical State Concern'' are 
declared where there is a perceived need to protect public resources 
from risk by unregulated or inadequately regulated development. 
Further, the pristine and unique habitats of the Florida Keys have led 
to the establishment of special protection areas by the Federal 
government, including the Key West Wildlife Refuge and the Great White 
Heron Wildlife Refuge. These actions are further evidence of the 
importance of the Florida Keys and their unique natural resources.
    The purpose of the WQPP is to recommend priority corrective actions 
and compliance schedules addressing point and nonpoint sources of 
pollution to restore and maintain the chemical, physical, and 
biological integrity of the FKNMS. This includes restoration and 
maintenance of a balanced, indigenous population of corals, shellfish, 
fish and wildlife, and recreational activities in and on the water. 
NOAA's Final Management Plan/Environmental Impact Statement for the 
FKNMS became effective on July 1, 1997 and includes the WQPP. The 
Monroe County Board of County Commissioners and the State of Florida 
recognize and support this document.
    There is a large community in the Florida Keys that live on boats 
and many live-aboard vessels are permanently anchored in harbors and 
are not capable of movement. Transient vessels also anchor in harbors 
and other protected sites and are very numerous in winter months. The 
number of live-aboard vessels has increased dramatically in recent 
years. While the Clean Vessel Act prohibits the dumping of raw sewage, 
treated wastewater from vessels may be discharged into State waters. 
Wastewater treatment (disinfection) by Type I and II MSDs does not 
remove all nutrients from wastewater. Many live-aboard and transient 
vessels discharge wastewater into surface waters. It is estimated that 
nutrients from vessel wastewater account for about 2.8% of nitrogen and 
3.0% of phosphorus loadings into nearshore waters of the Florida Keys 
(U.S. EPA, 1993, Phase II Report). Nutrient loadings from vessels may 
be relatively minor contributions to total Keys-wide loadings. However, 
loadings from vessels are a significant source of nutrients to harbors 
and result in eutrophication of waters that typically exhibit poor 
circulation/flushing. Violations of fecal coliform standards are common 
in marinas and harbors throughout the Florida Keys (Florida Department 
of Environmental Regulation 1987, 1990).
    The WQPP Phase II Report (1993) and other studies have determined 
that discharges of wastewater from vessels are degrading water quality 
in nearshore and confined waters. The final WQPP document (1996) 
identified the need to eliminate sewage discharges from live-aboard 
vessels and other vessels as a high priority action item. The State of 
Florida, as requested by the City of Key West, recently determined that 
the protection and enhancement of the quality of waters surrounding the 
City of Key West require greater environmental protection. This action 
prohibits the discharge from all vessels of any sewage, whether treated 
or not, into such waters out to a distance of 600 feet from shore. The 
U.S. EPA, pursuant to section 312(f)(3) of the Clean Water Act (Public 
Law 92-500), recently (August 25, 1999) concurred with the State's 
determination that adequate pumpout facilities for safe and sanitary 
removal and treatment of sewage from all vessels are reasonably 
available for the waters surrounding the City of Key West.
    The Board of County Commissioners of Monroe County, Florida has for 
some time been concerned about water quality in the Florida Keys. 
Monroe County's Comprehensive Plan is very strongly predicated upon 
environmental protection and water quality issues and the associated 
Executive Order and Work Program adopted by the Florida Governor and 
Cabinet are geared toward assisting Monroe County with improving and 
protecting water quality. The Board of County Commissioners of Monroe 
County has adopted a resolution requesting that the Governor of the 
State of Florida petition the EPA to declare all waters of the State 
within the boundaries of the FKNMS to be a NDZ for sewage, whether 
treated or not, from all vessels. Monroe County believes that this 
action would be a major step in protecting water quality around the 
Keys and especially in those areas where there is a high concentration 
of vessels. The NDZ designation is fully supported by the WQPP Steering 
Committee and is consistent with the overall goals of the WQPP for the 
FKNMS. This designation is also consistent with Florida's Area of 
Critical State Concern Program and the Principles for Guiding 
Development for the Florida Keys. The Governor of the State of Florida 
supports Monroe County's request to designate all State waters located 
within the FKNMS as a NDZ and has submitted the County's request to EPA 
Region 4 for consideration.
    Section 312(f)(4)(a) states: ``If the EPA Administrator determines 
upon application by a State that the protection and enhancement of the 
quality of specified waters within such State requires such a 
prohibition, he shall, by regulation completely prohibit the discharge 
from a vessel of any sewage (whether treated or not) into such 
waters.'' This authority has now been delegated to EPA Regional 
Administrators. On December 7, 2000, the Governor of Florida, Jeb Bush, 
requested that EPA Region 4 establish the NDZ status for State waters 
within the FKNMS. The EPA Region 4 Administrator concurs with this 
request.

II. Administrative Requirements

A. 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. This Order defines 
``significantly regulatory action'' as 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, or 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 or entitlement, grants, 
user fees, or loan programs or 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.
    EPA, in consultation with local and State government officials, has

[[Page 38969]]

determined that this rule is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 and is therefore not subject 
to OMB review.

B. Executive Order 13132

    The State of Florida is requesting that EPA take action to 
designate State waters within the FKNMS as a NDZ. Therefore, this order 
does not apply.

C. Executive Order 13175

    This order pertains to compliance costs of this rule to tribes. 
There are no tribal lands within the boundaries of the FKNMS. 
Therefore, this order does not apply.

D. Executive Order 13045

    This order authorizes EPA the discretion to consider health or 
safety risks (especially for children) when making regulatory 
determinations. The net result of this action will be to improve 
environmental conditions within the FKNMS.

E. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 6501 
et seq. whenever an agency is developing regulations, it must prepare 
and make available for public comment the impact of the regulations on 
small entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions). A regulatory flexibility analysis is not 
required if the head of the agency certifies that the rule will not 
have significant economic impact on a substantial number of small 
entities. EPA policy dictates that an Initial Regulatory Flexibility 
Analysis (IRFA) be prepared if the proposed action will have any 
significant effect on any small entities. An abbreviated IRFA can be 
prepared depending on the severity of the economic impact and relevant 
statute's allowance of alternatives. After considering the economic 
impacts of this proposed regulation/rule on small entities, EPA 
certifies that this action will not have a significant economic impact 
on a substantial number of small entities.

F. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and recordkeeping burden on the regulated 
community, as we minimize the cost of Federal information collection 
and dissemination. In general, the Act requires that information 
requests and record keeping requirements affecting 10 or more non-
Federal respondents be approved by OMB. Since today's rule would not 
establish or modify any information and record keeping requirements, it 
is not subject to the requirements of the Paperwork Reduction Act.

G. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statute is required for EPA rules 
under section 205 of the Act, EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must consider that alternative, unless the Administrator explains 
otherwise in the final rule. Before EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the Act a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them opportunity for meaningful and timely input during the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them of compliance 
with the regulatory requirements.
    EPA, in consultation with local and State government officials, has 
determined that this rule does not include a Federal mandate that will 
result in estimated annualized costs of $100 million or more to either 
State, local, and tribal governments in the aggregate, or to the 
private sector. All vessels that are equipped with MSDs and that 
navigate throughout the FKNMS are already subject to the EPA MSD 
Standard at 40 CFR part 140 and the U.S. Coast Guard MSD Standard at 33 
CFR part 159. These standards prohibit the overboard discharge of 
untreated vessel sewage in State waters in the FKNMS and require that 
vessels with on-board toilets shall have U.S. Coast Guard certified 
MSDs which either retain sewage or treat sewage to the applicable 
standards. There are 3 types of MSDs certified by the U.S. Coast Guard. 
Only those vessels that have either one of the two types of certified 
flow-through devices will be affected by this proposed rule. Those 
vessels affected by this rule will either retain and pump out treated 
sewage or discharge outside of the designated NDZ. Any costs associated 
with those activities is minimal and it is therefore estimated that the 
annualized costs to State or tribal governments in the aggregate, or to 
the private sector, will not exceed $100 million.
    Therefore, this rule is not subject to the requirements of sections 
202 and 205 of the Act. Because the rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments, it is also not subject to the requirements of section 203 
of the Act. Small governments are subject to the same requirements as 
other entities whose duties result from this rule and they have the 
same ability as other entities to retain and pump out treated sewage or 
discharge outside of the designated zones.

Lists of Subjects in 40 CFR Part 140

    Environmental protection, Sewage disposal, Vessels.

    Dated: July 16, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Title 40, Chapter 1, Part 140 of the Code of Federal Regulations is 
amended as follows:

PART 140--[AMENDED]

    1. The authority citation for part 140 continues to read as 
follows:

    Authority: 33 U.S.C. 1322

    2. Section 140.4 is amended by adding paragraph (b)(1)(ii) to read 
as follows:


Sec. 140.4  Complete prohibition.

* * * * *
    (b) * * *
    (ii) Waters of the State of Florida within the boundaries of the 
Florida Keys National Marine Sanctuary as delineated on a map of the 
Sanctuary at ``http://www.fknms.nos.noaa.gov/''.
* * * * *

[FR Doc. 01-18650 Filed 7-25-01; 8:45 am]
BILLING CODE 6560-50-P