[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]
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