[Federal Register: October 10, 2003 (Volume 68, Number 197)]
[Proposed Rules]
[Page 58757-58790]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc03-27]
[[Page 58757]]
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Part II
Environmental Protection Agency
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40 CFR Part 131
Water Quality Standards for Oregon; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-OW-7570-3]
Water Quality Standards for Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This document proposes use designations and temperature
criteria for the protection of salmonids in Oregon waters, except in
the Columbia River. This document also proposes an intergravel
dissolved oxygen (IGDO) criterion to protect salmonid spawning wherever
salmonid spawning is the designated use. In addition, this rule
proposes methods to implement Oregon's existing antidegradation policy.
DATES: EPA will accept public comments on this proposed rule until
November 10, 2003. EPA will consider comments postmarked after this
date only to the extent that time permits. EPA is sponsoring three
public hearings on today's proposed water quality standards for Oregon
on October 22 (5 p.m. to 9 p.m.), October 23 (2 p.m. to 6 p.m.), and
October 24, 2003 (10 a.m. to 1 p.m.).
ADDRESSES: Send your comments by mail to Valerie Badon, ORC-158, U.S.
EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. Comments
may also be submitted electronically, or through hand delivery/courier.
Follow the detailed instructions as provided in section I.C. of the
SUPPLEMENTARY INFORMATION section. The following public hearings will
be held:
October 22 hearing: State of Oregon Building, 800 NE. Oregon
Street, Portland, Oregon.
October 23 hearing: Eugene Public Library, 100 W. 10th Avenue,
Eugene, Oregon.
October 24 hearing: Bend Community Center, 1036 NE. 5th Street,
Bend, Oregon.
The administrative record for today's proposed rule is available
for public inspection at EPA Region 10's Oregon Operations Office, 811
SW. 6th Avenue, 3rd Floor, Portland, Oregon 97204, between 8 a.m. and 4
p.m. Please call Tom Townsend at 503-326-3250 for appointments to
review the record. A reasonable fee for copying will apply.
FOR FURTHER INFORMATION CONTACT: Mary Lou Soscia at U.S. EPA Region
10's Oregon Operations Office by phone at: 503-326-3250, or by e-mail at: soscia.marylou@epa.gov. You may also contact Cara Lalley at U.S.
EPA Headquarters by phone at 202-566-0057, or by e-mail at: lalley.cara@epa.gov.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
I. General Information
A. Potentially Affected Entities
B. How Can I Get Copies of This Document and Other Related
Information?
1. Docket
2. Electronic Access
C. How and to Whom Do I Submit Comments?
1. Electronically
2. By Mail
3. By Hand Delivery or Courier
D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. What Are the Statutory and Regulatory Requirements Relevant
to This Action?
B. What Actions Have Oregon and EPA Taken Leading to Today's
Action?
III. What Federal Water Quality Standards is EPA Proposing Today?
A. Background
B. Federal Use Designations for Specific Water Body Segments
1. Background
2. Salmonid Use Designations
3. Specific Locations and Times for the Salmonid Uses
C. Temperature Criteria for Salmonid Uses
1. Background
2. EPA's Basis for the Proposed Numeric Criteria
3. Numeric Temperature Water Quality Criteria for EPA's Salmonid
Use Designations
4. Alternative Criteria
D. IGDO Criterion for Salmonid Spawning
1. Background
2. EPA's Proposed IGDO Criterion
E. Antidegradation Implementation Methods
1. Background
2. Why is EPA Proposing Antidegradation Implementation Methods
for the State of Oregon?
3. What Antidegradation Implementation Methods is EPA Proposing
for the State of Oregon?
F. Effect of this Proposed Rule on the State's Water Quality
Programs
IV. Economic Analysis
A. Identifying Affected Facilities
B. Method for Estimating Potential Compliance Costs
C. Results
D. Total Statewide Costs Associated with NPDES Permitted
Facilities
E. Small Government and Business Analysis
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Background
B. Process for Federal Agencies Responsible for Federally Owned
or Operated Dams to Request EPA Modify Water Quality Standards
C. Variances
D. Heat Load and Thermal Plume Provisions
E. EPA's Basis for Allowing Flexibility Due to Unusually Warm
Weather Conditions
F. Total Maximum Daily Loads and Impaired Water Listings
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Potentially Affected Entities
Citizens concerned with water quality in Oregon may be interested
in this proposed rulemaking. Entities discharging pollutants to waters
of the United States in Oregon could be indirectly affected by this
rulemaking because water quality standards are used in determining
water quality-based effluent limitations included in National Pollutant
Discharge Elimination System (NPDES) permits. Categories and entities
that may indirectly be affected include:
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Examples of Potentially
Category Affected Entities
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Industry................................ Industries discharging
pollutants to surface waters
in Oregon.
Municipalities.......................... Publicly-owned treatment works
discharging pollutants to
surface waters in Oregon.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES entities likely to be affected by
this action. This table lists the types of entities that EPA is now
aware could potentially be affected by this action. Other types of
entities not listed in this table could also be affected. To determine
whether your facility may be affected by this action, you should
carefully examine today's rule. If you have questions regarding the
applicability of this action to a particular entity, consult one of the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
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B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action at EPA Region 10's Oregon Operations Office, 811 SW. 6th Avenue,
3rd Floor, Portland, Oregon 97204, under Docket ID No. OW-2003-0068.
The official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is the collection of materials
that is available for public viewing under ID No. OW-2003-0068, or
Proposed Federal Water Quality Standards for Oregon. The Docket
Facility is open from 8 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. Please call Tom Townsend at 503-326-3250 for
appointments to review the record. A reasonable fee will be charged for
copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in the EPA electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in I.B.1. EPA intends to work towards
providing electronic access to all of the publicly available docket
materials through EPA electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's Electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available through the docket facility
identified in I.B.1.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket,
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' While EPA is
not required to consider these late comments, we will make every
attempt to consider them.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD-ROM you submit, and in any cover letter accompanying
the disk or CD-ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet home page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID OW-2003-
0068. The system is an ``anonymous access'' system, which means EPA
will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to OW-Docket@epa.gov, attention Docket ID No. OW-2003-0068. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM
that you mail to the address identified in I.C.2. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
2. By Mail. Send your comments to: Valerie Badon, ORC-158, U.S. EPA
Region 10, 1200 Sixth Avenue, Seattle, Washington 98101, Attention
Docket ID No. OW-2003-0068.
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3. By Hand Delivery or Courier: Deliver your comments to the
address identified in I.C.2, Attention Docket ID No. OW-2003-0068. Such
deliveries are only accepted between 8 a.m. and 4 p.m.
D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
II. Background
A. What Are the Statutory and Regulatory Requirements Relevant to This
Action?
The purpose of the Clean Water Act (CWA) is to restore and maintain
the chemical, physical and biological integrity of the Nation's waters.
Section 101(a)(2) of the CWA establishes as an interim goal ``water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and * * * recreation in and on the water,''
wherever attainable. This national goal is commonly referred to as the
``fishable/swimmable'' goal of the CWA. (Hereafter, the fishable/
swimmable goals are referred to as CWA section 101(a) goal uses.)
Section 303(c)(2)(A) requires State and Tribal water quality standards
to ``protect the public health and welfare, enhance the quality of
water, and serve the purposes of this Act.'' Further, States and
authorized Tribes are required to take into consideration the waters'
use and value for public water supplies, propagation of fish and
wildlife, recreational purposes, and agricultural, industrial, and
other purposes, and also take into consideration their use and value
for navigation. 33 U.S.C. 1313(c)(2)(A). EPA's regulations at 40 CFR
131.10 describe the process States and authorized Tribes must follow
and the analyses States must conduct prior to designating any uses that
do not contain the CWA section 101(a) goal uses.
Section 303(c) of the CWA, 33 U.S.C. 1313(c), requires States and
authorized Tribes to adopt water quality standards for waters of the
United States within their applicable jurisdictions. Section 303(c) and
EPA's implementing regulations at 40 CFR part 131 require State and
Tribal water quality standards to include the designated use or uses to
be made of the water, the criteria necessary to protect those uses, and
an antidegradation policy. States and authorized Tribes may also
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. States and authorized Tribes are
also 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)(1). States and authorized Tribes are required to
submit new or revised water quality standards to EPA for review and
approval or disapproval. 33 U.S.C. 1313(c)(2)(A). If EPA approves a new
or revised water quality standard submitted by a State or Tribe, it
takes effect for CWA purposes. 40 CFR 131.21. If EPA disapproves a new
or revised water quality standard submitted by a State or Tribe, EPA
must promulgate its own water quality standard for the State or Tribe,
when necessary to replace the disapproved water quality standards.
Finally, section 303(c)(4)(B) of the CWA authorizes the
Administrator to determine, even in the absence of a State or Tribal
submission, that a new or revised standard is needed to meet the CWA's
requirements. The authority to make a determination under CWA section
303(c)(4)(B) resides exclusively with the Administrator; it has not
been delegated.
Section 7 of the Endangered Species Act (ESA) requires Federal
agencies, in consultation with the U.S. Fish and Wildlife Service (FWS)
and the National Oceanic and Atmospheric Administration's National
Marine Fisheries Service (NOAA Fisheries) (collectively, ``the
Services''), to ensure that their actions are not likely to jeopardize
the continued existence of any listed species or result in the
destruction or adverse modification of habitat of such species which
have been designated as critical. Consultation is designed to assist
Federal agencies in complying with the requirements of section 7 by
supplying a process within which FWS and NOAA Fisheries provide such
agencies with advice and guidance on whether an action complies with
the substantive requirements of the ESA. Approval of State or Tribal
water quality standards and Federal promulgation of water quality
standards are considered Federal actions, and hence EPA is required to
comply with the requirements of ESA section 7 prior to taking final
action on this proposed rule.
As a result of EPA's responsibilities and duties under section 7 of
the ESA, EPA has initiated informal consultation with FWS and NOAA
Fisheries on this rulemaking. As part of this process, EPA is preparing
a biological assessment document that it will transmit to FWS and NOAA
Fisheries and include in the record if this rule is finalized.
B. What Actions Have Oregon and EPA Taken Leading to Today's Action?
On July 23, 1996, the State of Oregon submitted revisions to its
water quality standards to EPA for review, and approval or disapproval,
pursuant to CWA section 303(c)(2)(A). Certain of these revisions
identified specific numeric temperature criteria to protect critical
life stages of fish in the family Salmonidae, commonly known as
``salmonids.'' The Salmonidae family includes the genus Oncorhynchus,
which consists of Pacific salmon and trout. There are seven species of
Pacific salmon within the genus Oncorhynchus, five of which are found
in North America: pink (O. gorbuscha), chum (O. keta), sockeye (O.
nerka), coho (O. kisutch), and chinook (O. tshawytscha). Pacific trout
within the genus Oncorhynchus include the anadromous steelhead, O.
mkiss, and coastal cutthroat, O. clarki. clarki; and the non-anadromous
rainbow trout, O. mkiss. Also in the family Salmonidae is the genus
Salvelinus, which includes the bull trout species, confluentus.
Oregon's 1996 revised temperature criteria were intended to protect
salmon rearing (17.8[deg]C/64[deg]F), salmon spawning (12.8[deg]C/
55[deg]F), and bull trout (10[deg]C/50[deg]F). This included a revised
temperature criterion for salmonid rearing in the Lower Willamette
River from 21[deg]C/70[deg]F to 20[deg]C/68[deg]F. Oregon also
submitted an IGDO criterion of 6.0 milligrams per liter (mg/L) for the
protection of salmonid spawning. In addition, Oregon adopted new or
revised narrative criteria and other provisions establishing a process
for adopting site-specific numeric criteria or temporary revisions to
its standards.
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On September 15, 1998, EPA entered into formal consultation under
section 7(a)(2) of the ESA with both NOAA Fisheries and FWS with regard
to the effect of its approval decision regarding the new or revised
standards on listed and endangered species including chinook, coho,
sockeye, chum, coastal cutthroat, steelhead, and bull trout. On July 1,
1999, FWS issued a biological opinion that EPA's approval of the
State's standards revisions was not likely to jeopardize the continued
existence of listed threatened and endangered species, including bull
trout. On July 7, 1999, NOAA Fisheries issued a biological opinion that
EPA's approval of the standards revisions was not likely to jeopardize
the continued existence of listed threatened and endangered species.
Included on the Services' lists of threatened and endangered species
were:
[sbull] Snake River Sockeye Salmon;
[sbull] Upper Columbia River spring chinook salmon;
[sbull] Upper Columbia River steelhead;
[sbull] Snake River spring/summer, Snake River fall, Upper
Willamette River, Lower Columbia River, and Southern Oregon/California
Coastal chinook salmon;
[sbull] Oregon Coast and Southern Oregon/Northern California coho
salmon;
[sbull] Snake River Basin, Middle and Lower Columbia, Upper
Willamette, Oregon Coast, and Klamath Mountains Province steelhead
trout;
[sbull] Columbia River Chum Salmon;
[sbull] Umpqua River coastal cutthroat trout;
[sbull] Southwestern Washington/Columbia River coastal cutthroat
trout; and
[sbull] Columbia River Basin and Klamath River Basin Bull Trout.
As part of the consultation action, EPA and the State of Oregon
also committed to perform specific conservation measures under section
7(a)(1) of the ESA. These measures were designed to address the
Services' and EPA's concerns regarding Oregon's water quality standards
and also to further investigate uncertainties regarding the water
temperatures necessary to protect specific life stages of endangered
salmonid species.
On July 22, 1999, EPA approved all but one of the revised water
quality standards submitted by Oregon, including the new and revised
temperature, pH, dissolved oxygen, and bacteria standards. EPA
disapproved the 20[deg]C/68[deg]F numeric criterion for salmonid
rearing in the lower Willamette River because the State did not include
a justification for how 20[deg]C/68[deg]F would protect salmonid
rearing in view of record information showing that 20[deg]C/68[deg]F is
not protective of salmonid rearing. (Letter to Michael Llewelyn, Oregon
Department of Environmental Quality, from Randall Smith, EPA, July 22,
1999; Memorandum to Randy Smith from Dru Keenan regarding Recommended
Action, July 21, 1999). At that time, EPA took no action with respect
to Oregon's existing water quality criteria for the Columbia River or
its antidegradation implementation plan because Oregon had not
submitted new or revised water quality standards for review on either
matter.
One of the conservation measures in NOAA Fisheries' biological
opinion required EPA to establish and lead a region-wide effort to
conduct a comprehensive review of the temperature requirements of
critical life stages of salmonids in the Pacific Northwest, and
ultimately to issue guidance recommending temperature criteria for
their protection, which could be used as a basis for further revision
of Oregon's standards if warranted. The reason for this conservation
measure was that during the formal consultation process, it became
evident to EPA, NOAA Fisheries, and FWS, and others that there was
scientific uncertainty regarding the precise effects of various
temperature regimes on the life stages of threatened and endangered
salmonids. This three year effort concluded in April 2003 with the
issuance of the ``EPA Region 10 Guidance for Pacific Northwest State
and Tribal Temperature Water Quality Standards' (hereafter identified
as the Temperature Guidance).
Both EPA's approval action and NOAA Fisheries' Biological Opinion
of ``no jeopardy'' were challenged in 2001 by Northwest Environmental
Advocates in the U.S. District Court for the District of Oregon.
Northwest Environmental Advocates v. EPA & NMFS, 268 F.Supp.2d 1255 (D.
Or., Mar. 31, 2003). The plaintiff also alleged that EPA had a non-
discretionary duty to promulgate Federal water quality criteria for
temperature for the lower Willamette River and the Columbia River, and
to promulgate an implementation plan for Oregon's antidegradation
policy.
On March 31, 2003, the U.S. District Court in Oregon ruled that EPA
had violated the CWA and the ESA when it approved in 1999 certain water
quality standards for the protection of salmonids that were contained
in Oregon's 1996 submission. Although the court deferred to EPA's
scientific judgment regarding the protectiveness of the specific
numeric temperature criteria, the court found that the temperature
standards that EPA approved violated EPA's regulations and EPA's duty
under section 7 of the ESA because Oregon had failed to designate
``where and when'' these criteria would apply. The court directed EPA
to rescind its approval of the criteria because the absence of ``time
and place'' use designations failed to protect the use categories
created by Oregon, in this case salmonid rearing, bull trout rearing
and bull trout spawning. The court directed EPA to propose and
promulgate new temperature water quality standards, or approve new
State standards, to address this deficiency.
The court also directed EPA to rescind its approval of a water
quality criterion for intergravel dissolved oxygen for the protection
of salmonid spawning. The court found that EPA's approval of the 6.0
mg/L criterion adopted by Oregon was arbitrary and capricious based on
record information showing that 6.0 mg/L would not adequately protect
salmonid spawning and because Oregon had not made time and place use
designations where the criterion would apply. Thus, the court ordered
EPA to promulgate a new water quality criterion for this pollutant
parameter or approve a new State criterion. The court also ordered EPA
to promulgate an antidegradation implementation plan for Oregon waters
or approve such a plan promulgated by Oregon. Finally, the court also
found arbitrary and capricious NOAA Fisheries' determination that
Oregon's water quality standards for temperature and IGDO would not
jeopardize threatened and endangered species.
The court ruled in favor of EPA regarding the Plaintiff's challenge
to EPA's failure to establish Federal water quality criteria for
temperature for the Columbia River for migration and rearing. EPA also
successfully defended EPA's decision to approve certain narrative water
quality criteria. Finally, the court agreed that EPA had met its
obligations under ESA section 7(a)(1) to implement programs to conserve
threatened salmon.
On August 13, 2003, the court ordered EPA to sign proposed
regulations by October 1, 2003, and either sign final regulations or
approve new State regulations by March 2, 2004, for the following:
(a) Water quality criteria for temperature for the lower Willamette
River;
(b) Methods for implementing the antidegradation policy adopted by
Oregon, pursuant to 40 CFR 131.12;
(c) Numeric water quality criteria for temperature for the
protection of salmonid rearing and bull trout rearing
[[Page 58762]]
and spawning, accompanied by specific time and place designations for
waters of the United States in Oregon; and
(d) A water quality criterion for intergravel dissolved oxygen for
Oregon's waters for the protection of salmonid spawning in waters of
the United States in Oregon.
EPA's usual practice when promulgating a water quality standard is
to provide an opportunity for a public hearing, provide the public with
45 days notice of the hearing, and establish a public comment period
that extends at least until the date of the hearing. 40 CFR 25.5(b).
However, the regulations also allow for a shorter comment period and a
shorter period of public notice prior to the hearing when necessary to
accommodate the specific provisions of court orders. EPA is providing a
30-day comment period from the date of publication. EPA believes a 30-
day comment period is reasonable in this case for several reasons.
First, EPA is compelled by court order to take final action on this
proposal by March 2, 2004. That schedule precludes a longer comment
period. Second, a significant portion of the water quality standards
being proposed today has already been the subject of considerable
public input in connection with the Temperature Guidance. In the course
of developing that guidance, which EPA Region 10 issued in April 2003,
EPA published and considered public comment on two drafts and engaged
in considerable stakeholder communication. With the exception of the
use designations and antidegradation implementation procedures proposed
today, all aspects of today's proposed rule were the subject of
extensive public input in that context. Therefore, the public has
already had several months to consider the substance of these proposed
decisions.
In this document, EPA is not proposing any time and place
designations for the Columbia River. Oregon had not submitted and EPA
had not disapproved water quality criteria for temperature or use
designations for salmonid migration and rearing for the Columbia River.
Therefore, the court did not require EPA to propose and promulgate such
water quality standards for the Columbia River. Accordingly, EPA is not
proposing time and place designations for salmonid spawning for the
Columbia River. The court did hold that EPA's approval of the State's
IGDO criterion to protect salmonid spawning was arbitrary and
capricious based on record information showing that 6.0 mg/L would not
adequately protect salmonid spawning and because Oregon had not made
time and place use designations where the criterion would apply. Thus,
the court order requires EPA to propose IGDO criteria wherever salmonid
spawning is the designated use in Oregon. Therefore, the proposed IGDO
criterion would apply to all waters identified in section 131.39(b) for
salmonid spawning. In addition, for the Columbia River, the State of
Oregon has identified the times and places where salmonid spawning
occurs and, therefore, the IGDO criterion would apply to those places
in the Columbia River (Letter to Randall Smith, EPA, from Michael
Llewelyn, ODEQ, September 5, 2003).
EPA is proposing these regulations under authority of CWA section
303(c)(4)(A), which requires EPA to promptly prepare and publish
proposed Federal water quality standards when EPA disapproves new or
revised water quality standards submitted by a State. On September 29,
2003, EPA disapproved the following new or revised water quality
standards submitted by Oregon in 1996:
[sbull] The water quality criteria for temperature for the
protection of salmonid rearing;
[sbull] The water quality criteria for temperature for the
protection of bull trout spawning, rearing, and migration;
[sbull] The water quality criteria for temperature for the
protection of salmonid spawning; and
[sbull] The water quality criterion for intergravel dissolved
oxygen for the protection of salmonid spawning.
A copy of the disapproval decision may be found in the docket for
this proposed rule.
In making its disapproval decision, EPA relied on the reasoning of
the U.S. District Court for the District of Oregon when it ordered EPA
to rescind its 1999 approval of certain Oregon temperature and IGDO
standards. In its March 2003 order, the court stated that without
accurate time and place use designations, Oregon's 1996 criteria for
temperature and IGDO were inconsistent with the CWA and should not have
been approved.
Accordingly, EPA has disapproved these criteria to the extent that
Oregon had failed to determine when and where these criteria apply
(Letter from Randall F. Smith, Director of EPA Region 10's Office of
Water, to Mike Llewelyn, Director of Oregon Department of Environmental
Quality, September 29, 2003). Where Oregon has made time and place use
determinations under its regulations (e.g., the Columbia River for
salmonid spawning), EPA's 1999 approval decision remains in effect.
Under those circumstances, the State's time and place use
determinations apply for CWA purposes, and EPA is not proposing Federal
time and place designations for those waters in this rulemaking.
In developing this proposed rule, EPA sought advice from other
Federal agencies, including those that administer the ESA and those
that operate dams in Oregon. Their comments improved the clarity of the
proposal, resulted in EPA deciding to solicit comment in some
additional areas, aided EPA in developing standards that would be
protective of endangered salmon and trout, and, prompted EPA to better
articulate for owners and operators of Federal dams the information
needs and process associated with petitioning for changes in use
designations. EPA appreciates the input of these agencies.
III. What Federal Water Quality Standards Is EPA Proposing Today?
A. Background
In this document, EPA is proposing (1) designated uses to protect
migration, rearing, and spawning through fry emergence for salmonids;
(2) specific water bodies where those designated uses would apply, and
the times of year when the uses occur; (3) temperature criteria that
protect each of those designated uses; (4) an IGDO criterion that
protects salmonid spawning; and (5) an implementation plan for Oregon's
existing antidegradation policy.
The basis for EPA's proposed salmonid uses and associated
temperature criteria is the Temperature Guidance, contained in the
record for this rule. The Temperature Guidance is intended to assist
States and authorized Tribes in adopting scientifically-defensible
temperature water quality standards. The Temperature Guidance
recommends an approach for adopting temperature water quality standards
to protect cold-water salmonids and specifically addresses the
following cold-water salmonid species in the Pacific Northwest:
chinook, coho, sockeye, chum, and pink salmon; steelhead and coastal
cutthroat trout; and bull trout. The Temperature Guidance provides
recommendations to States and authorized Tribes on how they can
designate uses and establish numeric temperature criteria for
waterbodies that help meet the interim goal of the CWA to, where
attainable, provide for water quality that ``provides for the
protection and propagation of fish, shellfish, and wildlife and
recreation in and on the water.'' See CWA section 101(a)(2). In
addition, temperature water quality standards are viewed by EPA and the
Services as an
[[Page 58763]]
important tool for the protection and recovery of threatened and
endangered salmonid species in the Pacific Northwest. Attaining
criteria and protecting existing cold temperatures for waters used by
these salmonids will help maintain and improve their habitat and aid in
their protection and recovery.
As mentioned above, EPA Region 10 undertook the Temperature
Guidance project as a result of the commitments agreed to under the ESA
Biological Opinion issued by the Services on Oregon's temperature water
quality standards. EPA Region 10 also undertook this project because
EPA's CWA section 304(a) national criteria recommendations for
temperature found in ``Quality Criteria for Water 1986,'' commonly
known as the Gold Book, were established in 1977, and do not reflect
the most current science regarding temperature in the Pacific
Northwest. In general, the Gold Book temperature recommendations for
salmonids and other fish consist of formulas to calculate the
protective temperatures for short-term exposure and a maximum weekly
average exposure based on the maximum weekly average temperature
metric. Protective short-term temperature exposure is based on
subtracting 2[deg]C/4[deg]F from the upper incipient lethal
temperature. Protective weekly average temperature exposure is based on
the optimal growth temperature plus one-third of the difference between
the optimal growth temperature and the upper incipient lethal
temperature. Using these formulas and EPA data for coho and sockeye
salmon, the 1986 document calculates suggested temperature criteria for
short-term exposure as 22[deg]C/71.6[deg]F (sockeye) and 24[deg]C/
75.2[deg]F (coho) and a maximum weekly average exposure of 18[deg]C/
64[deg]F for both species.
Based on extensive review of the most recent scientific studies,
many of which were undertaken specifically for the Pacific Northwest,
EPA and the Services believe that there are a variety of chronic (long-
term) and sub-lethal effects (i.e., effects other than death) that are
likely to occur to Pacific Northwest salmonid species exposed to the
maximum weekly average temperatures calculated using the CWA section
304(a) national recommended formulas. These chronic and sub-lethal
effects include reduced juvenile growth, increased incidence of
disease, reduced viability of gametes in adults prior to spawning,
increased susceptibility to predation and competition, and suppressed
or reversed smoltification. Healthy fish populations could possibly
endure some of these chronic impacts with little appreciable loss in
population size. However, EPA and the Services are concerned that these
chronic and sub-lethal effects can reduce the overall health and size
of vulnerable fish populations, such as the endangered or threatened
salmonids of the Pacific Northwest. Based on the new scientific studies
developed specifically for the Pacific Northwest and the fact that the
fish populations at issue are already vulnerable for reasons unrelated
to temperature, EPA believes that the general assumptions upon which
the national recommendations are based are inapplicable here. In
particular, EPA is concerned that vulnerable coldwater salmonids in the
Pacific Northwest would not be adequately protected at water
temperatures selected between the optimal growth temperatures and the
higher temperatures at which there would be incipient lethality. For
these reasons, EPA is basing today's proposed rule on the more recent,
site-specific information and analyses contained in the 2003
Temperature Guidance, rather than on the 1986 CWA section 304(a)
national temperature criteria recommendations.
B. Federal Use Designations for Specific Water Body Segments
1. Background
Today, EPA is proposing to designate the same salmonid uses
recommended in the Temperature Guidance with a few exceptions discussed
in the preceeding paragraphs. Four of the five designated salmonid uses
that EPA is proposing are based on the salmonid uses that occur during
the period of summer maximum temperatures, which is generally during
July and August. EPA believes it is appropriate to primarily base
designated salmonid uses on summer salmonid use because: (1) human
activities that increase summer water temperatures are a significant
concern for salmonids in the Pacific Northwest, and (2) ensuring water
temperatures are protective of salmonid uses during the summer will
generally result in protective water temperatures for salmonids other
times of the year due to the fact that waters will naturally be cooler
during other months of the year. However, for some waters, attaining
the criteria to protect for a summertime salmonid use may not result in
protecting salmonid spawning and fry emergence that occurs in the
spring to early summer or late summer to fall. Thus, in addition to the
four summer salmonid designated uses, EPA is also proposing a use
designation specifically for salmon and steelhead spawning through fry
emergence, which typically occurs beginning in the fall and continuing
through the spring, but can also occur in early July for steelhead and
late August for chinook. Designating this use and associated water
quality criteria provides an added degree of protection where meeting
only the summer maximum temperature may be inadequate to ensure
protection of this use during the other times of the year when spawning
occurs.
In this document, EPA is proposing salmonid uses and associated
temperature and IGDO water quality criteria for the waters identified.
Water quality criteria often protect water bodies that have multiple
and competing uses. Federally-owned or operated dams in certain waters
may present a particular challenge in designating uses and establishing
water quality criteria. In cases such as this, water quality standards
should take into consideration the authorized purposes of Federally-
owned or operated dams. EPA, therefore, will take into consideration
the operational parameters and authorized purposes at these facilities
when developing Federal water quality standards for the State of
Oregon, to the extent time and availability of data permit. If data
become available prior to promulgation of the final rule demonstrating
that a proposed use is not attainable on a particular water body
impacted by a Federally-owned or operated dam, EPA may promulgate a
revised use that reflects the highest feasibly attainable use
consistent with the operation of the dam. Designated uses should be
deemed ``feasible'' if they can be implemented by a dam in a manner
that allows the dam to perform its authorized purposes. Because these
standards are being developed on an expedited schedule, and it may not
be possible to fully consider data on attainability of uses for all
water bodies potentially impacted by Federally-owned or operated dams,
EPA is also proposing a process by which Federal agencies responsible
for Federally-owned or operated dams may request that EPA modify the
water quality standards described in this proposed rule. See section
V.B.
For each of the uses proposed in section III.B.2, EPA requests
comment on its methodology for designating waters for those uses, and
on the specific use designations for waters identified on the maps
available on the Internet at http://www.epa.gov/r10earth/federaloregonwqs.htm
, or in hard copy at U.S. EPA Region 10's Oregon
Operations Office, 811 SW. 6th Avenue, 3rd Floor, Portland, Oregon
97204.
[[Page 58764]]
2. Salmonid Use Descriptions
i. Bull Trout Juvenile Rearing and Spawning. EPA is proposing a
bull trout juvenile rearing and spawning use for the waters identified
in the maps previously referenced. This use is intended to protect
moderate to high-density summertime bull trout juvenile rearing near
their natal streams in their first years of life prior to making
downstream migrations, and bull trout spawning through fry emergence
typically occurring from the fall through the spring in the same
waters. In general, EPA is proposing this use in the upper reaches of
the applicable river basins, where this use typically occurs.
ii. Salmon and Steelhead Core Juvenile Rearing. EPA is proposing a
salmon and steelhead core (moderate- to high-density) juvenile rearing
use for the waters identified in the maps previously referenced. This
use is intended to protect core salmon and steelhead juvenile rearing
that occurs in the summer. This use is generally found in a river
basin's mid-to-upper reaches, downstream from juvenile bull trout
rearing areas. Protection of these waters for salmon and steelhead
juvenile rearing also provides protection for adult spring chinook
salmon that ``hold'' (wait in a river reach) throughout the summer
prior to spawning, and for migrating and foraging adult and sub-adult
bull trout, which also frequently use these waters.
iii. Salmon and Trout Juvenile Rearing and Migration. EPA is
proposing a salmon and trout juvenile rearing and migration use for the
waters identified in the maps previously referenced. This use is
intended to protect salmon and steelhead (trout) moderate- to low-
density juvenile rearing and migration, during the period of summer
maximum temperatures. During the rest of the summer and other months of
the year, salmon and steelhead juvenile rearing and migration is likely
to be of higher density. This use designation reflects the fact that
salmon and steelhead juveniles will use waters during the summer that
have higher temperatures than their optimal thermal range. Salmon and
trout juvenile rearing and migration is generally found in the middle
and lower part of a basin, downstream of the salmon and steelhead core
rearing use. In many river basins in Oregon, this use extends all the
way to a river basin's terminus (i.e., confluence with the Columbia
River, Snake River or Pacific Ocean). EPA is also proposing salmon and
trout juvenile rearing and migration use to protect for general
juvenile rearing for resident rainbow trout.
iv. Salmon and Steelhead Migration. EPA is proposing a salmon and
steelhead migration use for the lower Willamette River (50 miles
upstream from the confluence with the Columbia River), the John Day
River (from the confluence with the North Fork River downstream to the
confluence with the Columbia River), and the portion of the Snake River
in Oregon (from the Washington-Oregon border to Hells Canyon Dam).
Salmon and steelhead migration occurs all year, but primarily in
the spring and early summer or in the late summer and fall. Although
fewer fish migrate during the summer maximum time period, migration is
the most prevalent life stage use that occurs during that period in
these waters. Some isolated salmon and steelhead juvenile rearing may
occur in these waters during the period of summer maximum temperatures,
but when it does, such rearing is usually found only in the confluence
of colder tributaries or other areas of colder waters.
The summer maximum temperature criterion is designed to protect
migration both during that time period and, more importantly, during
other times of the year when the majority of migration occurs. This is
because the criterion assures that the water temperatures stay cool
enough in the summer that the natural seasonal cooling that occurs
during other times of year results in achievement of temperatures that
are protective of migration.
v. Salmon and Steelhead Spawning Through Fry Emergence. EPA is
proposing to designate a spawning through fry emergence use for the
protection of salmon and steelhead trout spawning, egg incubation, and
fry emergence in the times and places indicated on the maps previously
mentioned. Generally, these life stages occur: (a) From late winter
through early summer for steelhead trout (mid-upper reaches); (b) from
the late summer-fall through spring for spring chinook (mid-upper
reaches); and (c) from the fall through spring for coho (mid-reaches),
chum, and fall chinook (the latter two in lower reaches).
vi. Other Salmonid Uses Considered. EPA considered designating
separate salmonid uses for (a) bull trout spawning and (b) steelhead
smoltification. For purposes of this proposed rule, however, EPA
determined that these uses can be protected by the temperature criteria
associated with other salmonid uses EPA is proposing today. See
Temperature Guidance p. 31. For bull trout spawning, EPA believes that
its proposed ``bull trout rearing and spawning'' use category will be
protective, and for steelhead smoltification, EPA believes that its
proposed use category, ``salmon and steelhead spawning through fry
emergence'' will be protective.
Bull trout generally spawn in the late summer and fall in the same
waters where young and resident juvenile bull trout rear. EPA decided
that a combined bull trout spawning and rearing use with a single
numeric temperature criterion (12[deg]C/54[deg]F) that limits summer
maximum temperatures would protect both the rearing that occurs year-
round and the spawning, egg incubation, and fry emergence that
generally occurs fall through spring. EPA proposes this approach for
two reasons. First, data indicate that if the summer maximum
temperature is 12[deg]C/54[deg]F, temperatures will naturally decrease
to levels that are protective of bull trout spawning (9[deg]C/48[deg]F)
when it occurs in the late summer and fall, and further decrease to
protect egg incubation (2-6[deg]C/36-43[deg]F) when it occurs over the
winter. Second, there may be some areas where bull trout spawn in the
summer, but in those situations, the existing summer maximum
temperatures are likely to be colder than 12[deg]C/54[deg]F and in
those situations the existing cold water alternative criterion
discussed in section III.C.vi.b. would apply and the applicable
criterion would be the existing maximum temperatures.
Salmon and steelhead smoltification occurs in the spring as these
fish migrate to the ocean and go through the adaptation process for
saltwater. Steelhead are believed to be the most temperature-sensitive
salmonids during smoltification, which is why a separate designated use
and criterion of 14[deg]C/57[deg]F was recommended in the Temperature
Guidance. EPA believes that its proposed water quality criteria for
temperature and associated designated uses would effectively protect
steelhead smoltification. In particular, the proposed salmon and
steelhead spawning through fry emergence use designation includes a
13[deg]C/55[deg]F criterion that would apply from the fall through the
spring until either May 15th or June 15th in nearly all the waters
where steelhead smoltification occurs.
3. Specific Locations and Times for the Salmonid Uses
EPA, in coordination with the Oregon Department of Environmental
Quality (ODEQ) and the Services, established an interagency team to
designate where and when the salmonid uses described above apply for
waters in the State of
[[Page 58765]]
Oregon. These proposed salmonid use designations are shown in the
previously mentioned maps (available on the Internet at http://www.epa.gov/r10earth/federaloregonwqs.htm
or in hard copy at U.S. EPA
Region 10's Oregon Operations Office, 811 SW., 6th Avenue, 3rd Floor,
Portland, Oregon 97204). The salmon and steelhead spawning through fry
emergence use is designated only for the time period indicated in the
map legends; all other identified designated uses apply throughout the
year.
EPA is proposing multiple use designations for certain waters where
the criterion applicable to the most sensitive use also protects a less
sensitive use. Where EPA proposes to designate bull trout rearing and
spawning, EPA is also proposing to designate salmon and steelhead core
juvenile rearing. Where EPA is proposing salmon and steelhead core
juvenile rearing, EPA is also proposing to designate salmon and trout
juvenile rearing and migration. Where EPA proposes salmon and trout
juvenile rearing and migration, EPA also proposes salmon and steelhead
migration. EPA notes that the maps indicate only the most sensitive use
that occurs during the period of maximum summer temperatures. Also, EPA
notes that its approach of defining uses that occur during the period
of summer maximum temperatures will also have the effect of protecting
other uses. If the most sensitive use designated for a particular water
body or segment no longer applies, then the less sensitive use would
apply.
In proposing the designated uses for the specified water bodies the
team primarily relied on a database developed by Oregon Department of
Fish and Wildlife (ODFW), which is available in the record and on the
Internet. (ODFW Database, http://osu.orst.edu/dept/nrimp/information/fishdistdata.htm
). This database was the product of an ODFW multi-year
effort to develop consistent and comprehensive fish distribution data
for a number of salmonid species. These distribution data represent the
known or probable presence of all salmonid species within the
anadromous zones of Oregon. ODFW compiled fish distribution information
from a variety of sources including State and Federal fishery agencies,
tribal entities, watershed councils and other interested public or
private groups.
The ODFW fish distribution data depict the known or probable
presence for the different life stages (i.e., spawning through fry
emergence, rearing, and migration) of the above listed salmonid
species. The ODFW fish distribution data reflect both waters with known
fish life stage presence based on documented observations, as well as
local field biologists' best professional judgment as to where a life
stage use is likely to occur based on suitable habitat (i.e., waters
near areas of documented life stage presence on the same waterbody that
have similar temperatures and geomorphological habitat features, such
as flow volume, gradient, gravel size, pool frequency, and no known
obstructions or reasons why uses would not also be present in these
waters). The ODFW fish distribution data reflect areas of fish use
based on information collected over the past five life cycles for a
particular species, which ranges from 15 to 35 years.
In addition to spatial fish distribution data that describe where a
life stage use is known or likely to occur, the ODFW database also
includes information describing when a life stage use is known or
likely to occur.
EPA believes the methodology ODFW used to develop its database, as
summarized above, is scientifically sound and is appropriate to use for
salmonid use designations. (1:24K Fish Habitat Distribution Development
Project Procedures Manual, Oregon Department of Fish and Wildlife,
February 26, 2002). In particular, the ODFW database is based on fish
presence information spanning multiple years and includes waters where
fish are likely to occur based on locations near areas with documented
life stage presence and suitable habitat. This approach is appropriate
because salmonid use designations based solely on areas of documented
presence does not sufficiently describe the actual waters of use due to
the practical limitations of monitoring every stream mile, and routine
fish monitoring sometimes indicates no fish presence when fish are
actually present (i.e., false negatives). Further, fish distributions
vary year to year for any given waterbody, so salmonid use designations
should be based on fish presence studies over multiple years. EPA
requests comment on its use of the ODFW database as its primary source
of fish distribution data.
EPA also relied upon three other sources of information to identify
the proposed salmonid designated uses: ODEQ's Bull Trout Habitat
Designation Report: Technical Work Group Recommendations (July 2003);
USFWS proposed critical habitat for bull trout spawning and juvenile
rearing (67 FR 71236, November 29, 2002); and Ecotrust's Salmon Anchor
Habitat Strategy for the Tillamook and Clatsop State Forests, October
2002 (http://www.inforain.org/mapsatwork/anchorhabitats/).
As noted above, EPA, the State of Oregon, and the Services
developed an agreed-upon methodology to define where and when the
different proposed salmonid uses would apply based on the ODFW database
and the other information described above. The following is a summary
of the approach used to identify each of the proposed salmonid
designated uses.
i. Bull Trout Juvenile Rearing and Spawning. EPA reviewed three
different information sources that identify bull trout spawning and
juvenile rearing habitat in Oregon: (1) ODEQ's Bull Trout Habitat
Designation Report: Technical Work Group Recommendations, (2) ODFW
database for bull trout juvenile rearing and spawning habitat, and (3)
FWS' proposed critical habitat for bull trout juvenile rearing and
spawning. These three data sources are consistent in defining areas of
known or probable bull trout juvenile rearing and spawning. The ODEQ
report and the FWS proposal referenced previously also identify habitat
areas that have the potential to support bull trout juvenile rearing
and spawning and are essential to the conservation of the bull trout
species. EPA believes it is appropriate to designate areas identified
as potential bull trout rearing and spawning habitat because in order
to protect the bull trout use in the State, there must be a critical
population to (1) provide a compensatory reserve to protect against
natural stresses and events (e.g., drought); and (2) protect against
``depensation'' [a population level that is so low that it experiences
decreases in recruitment and which has led to documented crashes in
certain fish populations (Rieman and McIntyre, 1993)]; and (3) ensure
that genetic diversity is sufficient to support healthy reproduction.
EPA requests comment on its proposal to designate areas of potential as
well as known or probable bull trout juvenile rearing and spawning use.
ODEQ's report was translated into a Geologic Information System (GIS)
database by ODEQ; EPA primarily used this information supplemented by
FWS's proposed critical habitat information to identify where this
designated use is proposed.
EPA proposes to designate a bull trout rearing and spawning use
for: (a) Waters classified in ODEQ's report as known bull trout
spawning and juvenile rearing habitat (BTHD1) and potential bull trout
spawning and juvenile rearing habitat necessary for long-term health
and viability of bull trout populations
[[Page 58766]]
(BTHD3), (b) any additional waters identified by FWS as bull trout
spawning and rearing proposed critical habitat, and (c) all waters
upstream of the areas (as indicated on the use designation maps)
identified in (a) and (b) except for a few relatively large tributaries
where EPA has data showing this use does not occur, or the water body
has not been identified as habitat needed to protect the designated use
of bull trout. EPA requests comment on its methodology for designating
waters for the bull trout juvenile rearing and spawning use and on the
specific waters identified.
ii. Salmon and Steelhead Core Juvenile Rearing. In developing this
proposal, EPA judged that the ODFW database could not be used to
differentiate core (high-density) juvenile rearing from non-core (low-
density) juvenile rearing. In addition, there is generally very little
available information on juvenile rearing density for Oregon's river
basins. Therefore, as recommended in the Temperature Guidance, EPA
elected to use surrogate information to help identify areas where
summertime core salmon and steelhead juvenile rearing is likely. Waters
used by spring chinook to spawn in the late summer months (August
through mid-September), waters used over the summer by migrating and
foraging adult bull trout, and waters upstream of these areas are
likely to also support and be used for core salmon and steelhead
juvenile rearing for two reasons. First, ODFW's database indicates
juvenile rearing occurs in these waters, and second, the temperatures
needed for core rearing are similar to those that occur in waters that
support adult spring chinook holding to spawn as well as those that
support migrating and foraging adult bull trout. See EPA Temperature
Guidance.
The Ecotrust study on anchor habitat in the North Coast Basin was
one juvenile rearing density study EPA relied upon to identify waters
where the salmon and steelhead core juvenile rearing designated use
should be proposed. This study identified areas of core juvenile
rearing habitat for coho (salmon), steelhead (trout), and chinook
(salmon). Use of this information resulted in EPA proposing that three
stream segments be designated for salmon and steelhead core juvenile
rearing in the North Coast Basin (Necanicum River, Ecola Creek and
Plympton Creek) where there is no spring chinook spawning. Most of the
waters identified in this study were also waters where the ODFW
database showed spring chinook spawning to occur in or upstream of
these areas.
In summary, EPA is proposing to designate a salmon and steelhead
core juvenile rearing use for: (a) Waters where ODFW distribution and
timing information shows chinook spawning occurs on or prior to
September 15; (b) waters where known or probable adult bull trout
migration and foraging occurs in July or August based on the ODFW
database; (c) waters where scientifically credible information
(specifically the Ecotrust study) shows core salmon or steelhead
rearing (such information was only available for the North Coast
Basin); and (d) all waters upstream of the waters identified in (a),
(b), or (c), except for a few relatively large rivers where the
information in (a), (b) and (c) showed that these life stages are not
occurring in the river and the designation is not necessary to ensure
delivery of cold water downstream.
EPA requests additional scientifically-credible data or information
regarding core juvenile rearing areas that it could use to identify
those waters where this use should be designated. In particular, EPA
seeks information on coho and steelhead juvenile rearing density and
timing. EPA would consider such data or information in EPA's final use
designations.
Other data and information that may be appropriate for commenters
to review and evaluate EPA's designated uses include: (1) Waters
identified by ODFW as juvenile rearing habitat where ODEQ monitoring
data from any year shows that maximum water temperatures are at or
below 16[deg]C/61[deg]F (the proposed numeric criterion for this use);
(2) waters identified by ODFW as juvenile rearing habitat where ODEQ
temperature modeling indicates maximum water temperatures can meet
16[deg]C/61[deg]F; (3) information from NOAA Fisheries describing
critical sub-populations; (4) ODFW information on high density spawning
areas; and (5) waters above a certain elevation that are identified by
ODFW as steelhead and/or coho juvenile rearing with no chinook rearing.
Use of this data could potentially increase the number of waters for
which EPA promulgates the salmon and steelhead core juvenile rearing
designated use.
Although EPA is soliciting additional data or information that may
be helpful in designating this use, EPA believes the water bodies EPA
is proposing to designate for salmon and steelhead core juvenile
rearing provide sufficient spatial coverage to protect this use. As can
be seen by viewing the use designation maps, EPA is proposing to
designate salmon and steelhead core juvenile rearing for significant
portions of each basin. EPA, after discussions with NOAA Fisheries,
believes it is important for each existing salmon and steelhead
population to have a portion of their rearing habitat designated for
this use. EPA believes it has achieved this by designating this use for
a portion of most of the sub-basins in each of Oregon's basins used by
salmon and steelhead.
It is also important to recognize that waters EPA is proposing to
designate as salmon and trout juvenile rearing and migration use (See
section III.B.2.iii) with an associated 18[deg]C/64[deg]F criterion,
will provide a significant amount of water with 16[deg]C/61[deg]F
maximum temperatures that support salmon and steelhead core juvenile
rearing because attaining 18[deg]C/64[deg]F in the lower elevation
waters will require that a significant portion of the upstream waters
be colder than 18[deg]C/64[deg]F. Thus, EPA believes that the salmon
and trout juvenile rearing and migration summer maximum criterion will,
in effect, protect additional upstream waters for salmon and steelhead
core juvenile rearing. EPA requests comment on its methodology for
identifying waters for the salmon and steelhead core juvenile rearing
use and on the specific waters identified.
iii. Salmon and Trout Juvenile Rearing and Migration. EPA proposes
to designate a salmon and trout juvenile rearing and migration use for:
(a) Waters where ODFW distribution and timing information shows
chinook, chum, coho or steelhead rearing occurring in July or August;
(b) waters where ODFW distribution information shows rainbow trout
rearing use; and (c) all waters upstream of the waters identified
above. The data and information supporting these determinations is
contained in the ODFW database.
iv. Salmon and Steelhead Migration. EPA proposes to designate a
salmon and trout migration use for waters where ODFW distribution and
timing information indicates there is no rearing use in July or August
or information suggests a lower mainstem river is primarily a migration
corridor during the period of summer maximum temperatures, and there is
evidence that temperatures naturally reach or exceed 20[deg]C/68[deg]F.
Specifically, EPA is proposing a salmon and steelhead migration use for
the lower Willamette River (50 miles upstream from the confluence with
the Columbia River), the John Day River (from the confluence with the
North Fork River downstream to the confluence with the Columbia River),
and the portion of the Snake River in Oregon (from the Washington-
Oregon border to Hells Canyon Dam). The data and information supporting
[[Page 58767]]
these determinations is contained in the ODFW database.
v. Salmon and Steelhead Spawning Through Fry Emergence. EPA
considered identifying specific locations and all the distinct time
periods where the ODFW database shows salmon or steelhead spawning, egg
incubation or fry emergence to occur, but doing so even for one basin
resulted in over 30 different time periods for this use designation.
Because such an approach would be very complicated and difficult to
implement, EPA instead reviewed all of the data and developed an
approach that protects this use with fewer different time frames in a
basin.
After reviewing the timing information for spawning through fry
emergence for all salmon species and steelhead, EPA determined that
designating this use from October 15 through May 15 where it occurs
would protect this use for all waters in the State except for those
waters where the salmon and steelhead core juvenile rearing is the
designated use. In those waters, chinook (salmon) spawning may occur
prior to October 15 and steelhead fry emergence may occur later than
May 15. To account for chinook spawning in these waters prior to
October 15, EPA decided to designate this use as occurring either two
weeks after the start of non-peak chinook spawning or at the time of
peak chinook spawning, whichever date is earliest. The rationale for
designating this use two weeks after the start of chinook spawning is
that the use designation is for the whole river segment where chinook
spawning occurs but the early spawning generally occurs in the higher
elevation part of the river segment. EPA believes it is reasonable to
apply the criterion two weeks after the start of spawning upstream
because the criterion applies throughout the water body, including the
downstream extent of the use where spawning typically occurs later.
To account for steelhead fry emergence after May 15 in waters where
salmon and steelhead core juvenile rearing is the designated use, EPA
decided that designating the salmon and steelhead spawning through fry
emergence use where it occurs in these waters through June 15 would be
protective. Although steelhead fry emerge later than June 15 in some
waters, those waters are typically the upstream (i.e., high elevation)
portion of where this use is designated. Thus, in order to attain the
criterion for this use (i.e., 13[deg]C/55[deg]F) on June 15 in the
downstream extent of waters where this use would be designated,
temperatures would need to be colder on June 15 in the upstream waters
and therefore would not likely reach 13[deg]C/55[deg]F until later in
the year.
Lastly, because the timing information is well known for salmonid
spawning in the lower mainstem rivers and the temperature variation
within these segments is small, EPA decided to also propose a salmon
and steelhead spawning through fry emergence use where and when
spawning and fry emergence occur (based on the ODFW database) in waters
where salmon and steelhead migration is the designated use. Of the
three rivers for which EPA is proposing the migration use, the Snake
River is the only one where spawning and fry emergence also occurs. As
a result, it was unnecessary for EPA to develop a generalized
methodology to protect the spawning use for this waterbody.
In summary, EPA proposes to designate the times and places for
salmon and steelhead spawning through fry emergence use as follows:
(1) For waters where EPA is proposing to designate salmon and trout
juvenile rearing and migration (i.e., the 18[deg]C/64[deg]F summer
maximum criterion applies) and where ODFW distribution information
shows salmon (chinook, coho, chum) or steelhead spawning occurs, EPA is
also proposing to designate the salmon and steelhead spawning through
fry emergence use from October 15 through May 15.
(2) For waters where salmon and steelhead core juvenile rearing is
the proposed designated use (i.e., the 16[deg]C/61[deg]F summer maximum
criterion applies), EPA also proposes to designate the salmon and
steelhead spawning through fry emergence use for the following waters
and associated timeframes:
(a) For waters where ODFW distribution information shows chinook
spawning and steelhead spawning occurs, beginning the earliest of (i) 2
weeks after the beginning of chinook spawning, or (ii) the start of
peak chinook spawning, or (iii) October 15; and ending June 15;
(b) For waters where ODFW distribution information shows chinook
spawning occurs (and no steelhead spawning occurs), beginning the
earliest of (i) 2 weeks after the beginning of chinook spawning, or
(ii) the start of peak chinook spawning, or (iii) October 15; and
ending May 15;
(c) For waters where ODFW distribution information shows steelhead
spawning occurs (and no chinook spawning occurs), from October 15 to
June 15; and
(d) from October 15 to May 15 for any waters where other salmon
spawning (e.g., coho or chum) occurs.
(3) For waters where EPA is proposing to designate a salmon and
steelhead migration use (i.e., 20[deg]C/68[deg]F criterion applies) and
where ODFW distribution information indicates salmon or steelhead
spawning occurs, EPA is also proposing to designate the salmon and
steelhead spawning through fry emergence use from the beginning of
spawning to the end of fry emergence, as indicated on the maps at
http://www.epa.gov/r10earth/federaloregonwqs.htm.
C. Temperature Criteria for Salmonid Uses
1. Background
Each salmonid life stage has an optimal temperature range.
Physiological optimum temperatures are those where physiological
functions (e.g., growth, swimming, heart performance) are optimized.
These temperatures are generally determined in laboratory experiments.
Ecological optimum temperatures are those where fish do best in the
natural environment considering food availability, competition,
predation, and fluctuating temperatures. All are important
considerations when establishing numeric temperature criteria. Exposure
to temperatures above the optimal range results in an increased
severity of harmful effects, often referred to as sub-lethal or chronic
effects (e.g., decreased juvenile growth which results in smaller, more
vulnerable fish; increased susceptibility to disease which can lead to
mortality; and decreased ability to compete and avoid predation), as
temperatures rise until at some point they become lethal. See
Temperature Guidance, pp.18-19.
Water temperatures significantly affect the distribution, health,
and survival of native salmonids in the Pacific Northwest. Since
salmonids are ectothermic (cold-blooded), their survival is dependent
on external water temperatures, and they will experience adverse health
effects when exposed to temperatures outside their optimal range.
Salmonids have evolved and thrived under the water temperature patterns
that historically existed (i.e., prior to significant anthropogenic
impacts that altered temperature patterns) in Pacific Northwest streams
and rivers. Although evidence suggests that historical water
temperatures exceeded optimal conditions for salmonids at times during
the summer months on some rivers, the temperature diversity in these
unaltered rivers provided enough cold water during the summer to allow
salmonid populations as a whole to thrive.
[[Page 58768]]
Pacific salmon populations have historically fluctuated
dramatically due to climatic conditions, ocean conditions, and other
disturbances. High water temperatures during drought conditions likely
affected the historical abundance of salmon. In general, the increased
exposure to stressful water temperatures and the reduction of suitable
habitat caused by drought conditions reduce the abundance of salmon.
Human-caused elevated water temperatures significantly increase the
magnitude, duration, and extent of thermal conditions unsuitable for
salmonids.
The freshwater life histories of salmonids are closely tied to
water temperatures. Cooling rivers in the autumn serve as a signal for
upstream migrations. Fall spawning is initiated when water temperatures
decrease to suitable temperatures. Eggs generally incubate over the
winter or in early spring when temperatures are coolest. Rising
springtime water temperatures may serve as a cue for downstream
migration. Temperature can also influence the life histories of
salmonid prey and allow a competitive advantage for non-native species
such as pikeminnow.
Because of the overall importance of water temperature for
salmonids in the Pacific Northwest, human-caused changes to natural
temperature patterns have the potential to significantly reduce the
size of salmonid populations. Of particular concern are human
activities that have led to the excess warming of rivers and the loss
of temperature diversity.
Different salmonid species have evolved to take advantage of the
Pacific Northwest's cold-water environment in different ways. Each
species has a unique pattern of when and where they use the rivers, and
even for a specific species this pattern of use may change from year to
year. This diversity in freshwater life history is a critical
evolutionary trait that has allowed salmonids to persist in a
freshwater environment that naturally fluctuates and has natural
disturbances.
Therefore, EPA's proposed water quality standards for temperature
include protective criteria that account for the natural thermal
diversity of streams and rivers. In proposing temperature criteria for
salmonids uses, EPA recognizes that (1) Salmonids need specific water
temperature ranges for their various life stages; (2) the natural
thermal temperature regime of the rivers and streams of the Pacific
Northwest were naturally thermally diverse, varying spatially and
temporally; and (3) salmonids evolved specific life history strategies
to find and thrive in the cold water provided by these thermally
diverse river systems. EPA believes that water quality standards for
temperature should take this natural thermal diversity into account in
addition to setting the appropriate temperature thresholds necessary to
protect the various life stages of salmonids. The water quality
criteria EPA is proposing today address both of these concepts in the
form of generally applicable numeric criteria corresponding to specific
use designations, and two alternative criteria that, if promulgated,
would apply instead of the numeric criteria on a site-specific basis.
The first proposed alternative criterion addresses naturally warm
conditions: when the natural thermal condition of the stream is
naturally warmer than the otherwise applicable numeric temperature
criterion, the natural temperature becomes the criterion. The second
proposed alternative criterion concerns waters that are currently cold:
if the current summer maximum stream temperature is colder than the
otherwise applicable numeric criterion, the current summer maximum
temperature becomes the criterion.
2. EPA's Basis for the Proposed Numeric Criteria
Water quality criteria must protect the associated designated
use(s). See CWA section 303(c)(2)(A), 33 U.S.C. 1313(c)(2)(A), and 40
CFR 131.5(a)(2), 131.6(c) and 131.11(a)(1). Therefore, a criterion
should apply to the whole extent of a water body or segment for which a
particular use is designated, including, in the case of flowing water
bodies, the lowest point downstream where the use is designated.
Because streams generally warm progressively in the downstream
direction, waters upstream of that point will generally need to be
cooler in order to ensure that the criterion is met throughout the
segment, including the furthest point downstream. Thus, a water body
that meets a temperature criterion at the furthest downstream extent of
the water body segment where the use is designated will, in many cases,
provide water cooler than the criterion at the upstream extent of the
segment. EPA took this into consideration when it formulated the
proposed numeric temperature criteria contained in today's proposed
rule.
EPA regulations also require that water quality standards provide
for the attainment and maintenance of downstream uses. 40 CFR
131.10(b). Thus, the designated use and associated numeric criteria
should apply upstream of the areas of actual use because temperatures
in upstream waters significantly affect the water temperatures where
the actual use occurs and upstream waters are usually colder. Of
course, if a more sensitive use is designated upstream, the more
protective criterion associated with that use would apply upstream. See
40 CFR 131.11(a).
The numeric temperature criteria EPA is proposing to protect the
salmonid designated uses are the same criteria recommended in the
Temperature Guidance. The Guidance included two tables summarizing the
temperature considerations for each life stage of Pacific salmon and
trout and bull trout that are described in detail in the technical
issue papers that are the basis for the Temperature Guidance. See the
record for this proposed rule to view the issue papers. These
temperature considerations, summarized in Tables III-1 and III-2 at the
end of this section, form the scientific basis for EPA's proposed
numeric temperature criteria.
EPA requests comment on the proposed temperature criteria and
methodology and scientific judgments that led to the recommendations in
the Temperature Guidance and the criteria in this proposed rule.
Specifically, EPA requests comment on the level of conservatism
associated with proposing numeric criteria, considering the temperature
ranges identified by studies that were evaluated in the Temperature
Guidance. The level of conservatism should be considered along with the
conservative approach of applying the criteria as the 7DADM of the
second warmest year of ten years at the downstream end of the affected
segment; see discussion below).
The metric EPA is proposing for all the numeric criteria is the
maximum seven-day average of the daily maximum temperatures (7DADM). A
7DADM value is calculated by adding the daily maximum temperatures
recorded at a site on seven consecutive days and dividing by seven. The
maximum 7DADM is the highest recorded 7DADM for the year (i.e., the
warmest week).
The 7DADM is similar to the maximum weekly average temperature
metric used previously by EPA for its national temperature criteria
recommendations. However, EPA proposes to use the 7DADM metric because
it describes the maximum temperatures in a stream, but is not overly
influenced by the maximum temperature of a single day. Thus, it
reflects an average of maximum temperatures that fish are exposed to
over a week-long period. Since this
[[Page 58769]]
metric is oriented to daily maximum temperatures, it can be used to
protect against acute effects, such as lethality and migration blockage
conditions.
This metric can also be used to protect against sub-lethal or
chronic effects (e.g., temperature effects on growth, disease,
smoltification, and competition), but the resultant cumulative thermal
exposure fish experience over the course of a week or more needs to be
considered when selecting a 7DADM value to protect against these
effects. EPA's general conclusion from studies on fluctuating
temperature regimes (which is what fish generally experience in rivers)
is that fluctuating temperatures increase juvenile growth rates when
mean temperatures are colder than the optimal growth temperature
derived from constant temperature studies, but will reduce growth when
the mean temperature exceeds the optimal growth temperature. See
``Issue Paper 5: Summary of Technical Literature Examining the
Physiological Effects of Temperature on Salmonids,'' prepared as part
of the EPA Region 10 Temperature Water Quality Criteria Guidance
Development Project. EPA-910-D-01-005, May 2001, pp. 51-56. When the
mean temperature is above the optimal growth temperature, the ``mid-
point'' temperature between the mean and the maximum is the
``equivalent'' constant temperature. This ``equivalent'' constant
temperature then can be directly compared to laboratory studies done at
constant temperatures. For example, a river with a 7DADM value of
18[deg]C/64[deg]F and a 15[deg]C/58[deg]F weekly mean temperature will
be roughly equivalent to a constant laboratory study temperature of
16.5[deg]C/61.7[deg]F (mid-point between 15[deg]C/58[deg]F and
18[deg]C/65[deg]F). Thus, both maximum and mean temperatures are
important when determining a 7DADM value that is protective against
sub-lethal/chronic temperature effects. See the Temperature Guidance,
pp.19-20.
As discussed in the Temperature Guidance, many rivers and streams
occupied by salmon and steelhead in the Pacific Northwest have a
3[deg]C/5[deg]F difference between the 7DADM and the weekly mean
temperature. So, for many streams occupied by salmon and steelhead, a
protective 7DADM temperature is approximately 1.5[deg]C/2.7[deg]F
higher than a protective constant temperature derived from laboratory
studies. Id. For bull trout streams, where the difference between the
7DADM and the weekly mean is smaller because there is less diurnal
variation, a protective 7DADM temperature is approximately 0.5[deg]C/
0.9[deg]F higher than a protective constant temperature derived from
laboratory studies. Id.
3. Numeric Temperature Water Quality Criteria for EPA's Salmonid Use
Designations
i. Temperature Criteria for Waters Designated for Bull Trout
Juvenile Rearing and Spawning. EPA proposes a 12[deg]C/54[deg]F maximum
7DADM numeric criterion (which roughly translates to an equivalent
constant temperature of 11.5[deg]C/52.7[deg]F) for waters designated
for a bull trout juvenile rearing and spawning use to: (1) Protect
juvenile bull trout from lethal temperatures (22-23[deg]C/72-73[deg]F
constant); (2) provide conditions during the period of summer maximum
temperature at the upper end of the optimal temperature range when food
is limited for juvenile growth (8-12[deg]C/46-54[deg]F constant), thus
providing optimal temperatures for other times of the year; (3) provide
temperatures where juvenile bull trout are not at a competitive
disadvantage with other salmonids (greater than 12[deg]C/54[deg]F
constant); and (4) provide temperatures that are consistent with the
temperatures observed in field studies identifying where juvenile bull
trout have the highest probability to occur (12-13[deg]C/54-55[deg]F
daily maximum). See Table III-2.
When determining the overall optimal range for bull trout juvenile
rearing, EPA reviewed both laboratory and field data and considered
both physiological and ecological aspects. Optimal growth under limited
food rations in laboratory experiments, preference temperatures in
laboratory experiments where fish select between a gradient of
temperatures, and field studies on where rearing predominately occurs
are three independent lines of evidence that form the basis for
identifying the optimal temperature range for bull trout rearing in the
natural environment. These three lines of evidence show very consistent
results, with the optimal range between 8-12[deg]C/46-54[deg]F for bull
trout juvenile rearing. See the Temperature Guidance.
EPA is proposing that this numeric criterion apply to the warmest
times of the summer, the warmest years (except for the warmest year out
of ten), and throughout the water body or segment, including the lowest
downstream extent of that waterbody or segment designated for that use.
Because of the conservative nature of how this criterion is applied to
the water body, EPA believes that it is appropriate to propose this
numeric criterion near the warmer end of the optimal temperature range
for bull trout rearing. EPA expects that a numeric criterion near the
warmer end of the optimal range that is applied during the period of
summer maximum temperatures is likely to result in temperatures near
the middle of the optimal range for most of the spring through fall in
the segments where most of the rearing use occurs. EPA has identified
three reasons for this. First, if the criterion is met during the
summer maximum period, then temperatures will be colder than that value
during the rest of the year. Second, because the criterion would apply
throughout the water body or segment including the furthest point
downstream where the use is designated, temperatures will generally be
colder as you move upstream in the waterbody or segment. Finally, the
criterion must be met in the warmest years (except for the warmest year
in ten), so that in most years, the waters will be colder.
As mentioned previously, the scientific literature indicates that
water with a temperature of 9[deg]C/48[deg]F is necessary for the
protection of bull trout spawning. See Table III-2. For a more detailed
explanation of why EPA believes the proposed 12[deg]C/54[deg]F summer
maximum criterion would protect bull trout spawning, see section
III.B.2.vi.
For four water bodies where EPA is proposing a 12[deg]C/54[deg]F
7DADM criterion to protect bull trout spawning, FWS believes that
criterion may not be protective. In these waters, dams delay the
natural seasonal cooling of waters in the fall to an extent that may
prevent waters from cooling to 9[deg]C/48[deg]F downstream at times of
the year when bull trout spawning occurs. The four locations identified
by FWS are segments immediately downstream of: Laurence Lake Reservoir
(Hood River Basin on the Middle Fork of the Hood River); Melhorne
Reservoir and Clear Creek Reservoirs (Pine Creek Sub-Basin of Powder
Basin); and Carmen Reservoir (behind Carmen dam in the Willamette
Basin, on the McKenzie River above Blue River).
EPA requests comment on two approaches to address the four
identified water body segments where this situation occurs. First, EPA
requests comment on whether a numeric criterion of 9[deg]C/48[deg]F is
necessary in these waters at the time of spawning (in addition to the
12[deg]C/54[deg]F 7DADM criterion) to protect the designated use of
bull trout spawning. Such a criterion would apply immediately
downstream of each reservoir, starting at the beginning of the spawning
period. The proposed bull trout spawning and rearing use designation
continues downstream of each reservoir for some distance, and some
warming could occur as the water moves downstream
[[Page 58770]]
from the reservoir. EPA, however, believes that applying a 9[deg]C/
48[deg]F criterion immediately below the reservoir would be protective
because of the application of the criterion there at the earliest
spawning dates. Typically, bull trout spawning begins at the upper end
of the range of waters in which spawning occurs, and gradually moves
downstream as temperatures naturally cool due to seasonal weather
changes. Thus, applying a 9[deg]C/48[deg]F criterion immediately below
the reservoir at the start of the spawning time period would mean that
temperatures downstream are likely to cool naturally later in the
spawning period.
Second, EPA also requests public comment on a narrative provision
that would limit temperature increases during spawning times to no more
than 0.3[deg]C/0.5[deg]F greater than the otherwise applicable
criterion immediately downstream of the reservoir relative to the water
temperature upstream of the reservoir. EPA believes this prohibition of
any significant warming would be protective because in each case, EPA
is proposing to designate bull trout spawning and rearing upstream of
the reservoir, which will make the 12[deg]C/54[deg]F summer maximum
criterion applicable there. As discussed above, seasonal temperature
cycles would be expected to cool those upstream waters to the 9[deg]C/
48[deg]F temperature that is protective of spawning in time for the
fall time periods when spawning occurs. Limiting the temperature
increase from these reservoirs to this insignificant increment would
therefore be expected to protect the bull trout spawning below the
reservoirs.
EPA believes it is important to consider the attainability of the
bull trout rearing and spawning use and accompanying criterion EPA is
proposing. As such, EPA will consider data and information submitted
regarding the attainability of this use and criterion on the water
bodies where it is proposed, including data regarding attainability of
the additional criteria it is considering for the four water bodies
mentioned above.
ii. Temperature Criteria for Waters Designated for Salmon and
Steelhead Core Juvenile Rearing. EPA proposes a 16[deg]C/61[deg]F
maximum 7DADM numeric criterion (which roughly translates to an
equivalent constant temperature of 14.5[deg]C/58[deg]F) for waters
designated for salmon and steelhead core juvenile rearing to: (1)
Protect juvenile salmon and trout from lethal temperatures (23-
26[deg]C/73-79[deg]F constant); (2) provide conditions during the
period of summer maximum temperature at the upper end of the optimal
temperature range when food is limited for juvenile growth (10-
16[deg]C/50-61[deg]F constant), thus providing optimal temperatures for
other times of the year; (3) protect against temperature-induced
elevated disease rates (14-17[deg]C/57-63[deg]F constant); and (4)
provide temperatures that juvenile salmon and trout prefer, as
demonstrated by studies indicating fish in high densities at these
temperatures (10-17[deg]C/50-63[deg]F constant or less than 18[deg]C/
64[deg]F 7DADM). See Table III-1.
When determining the overall optimal temperature range for salmon
and steelhead juvenile rearing, EPA reviewed both laboratory and field
data and considered both physiological and ecological aspects. Optimal
growth under limited food rations in laboratory experiments, preference
temperatures in laboratory experiments where fish select between a
gradient of temperatures, and field studies on where rearing
predominately occurs are three independent lines of evidence that form
the basis for identifying the optimal temperature range for salmon and
steelhead juvenile rearing in the natural environment. These three
lines of evidence show very consistent results, with the optimal range
between 10-16[deg]C/50-61[deg]F for salmon and steelhead juvenile
rearing. See the Temperature Guidance.
EPA is proposing that this numeric criterion apply to the warmest
times of the summer, the warmest years (except for the warmest year in
ten), and and throughout the water body or segment, including the
lowest downstream extent of the waterbody or segment designated for
that use. Because of the conservative nature of how this criterion is
applied, EPA believes that it is appropriate to propose numeric
criteria near the warmer end of the optimal temperature range for core
juvenile salmon and trout rearing. EPA expects that a numeric criterion
near the warmer end of the optimal range that is applied during the
period of summer maximum temperatures is likely to result in
temperatures near the middle of the optimal range for most of the
spring through fall in the segments where most of the rearing use
occurs. EPA has identified three reasons for this. First, if the
criterion is met during the summer maximum period, then temperatures
will be colder than that value during most of the rest of the year.
Second, because the criterion would apply throughout the waterbody or
segment, including the furthest point downstream where the use is
designated, temperatures will generally be colder throughout the rest
of the waterbody or segment. Finally, criterion must be met in the
warmest years (except for the warmest year in ten), so that in most
years, the waters will be colder.
iii. Temperature Criteria for Waters Designated for Salmon and
Trout Juvenile Rearing and Migration. EPA proposes an 18[deg]C/64[deg]F
maximum 7DADM criterion (which roughly translates to an equivalent
constant temperature of 16.5[deg]C/62[deg]F) for waters designated for
salmon and trout juvenile rearing and migration to: (1) Protect against
lethal conditions for both juveniles and adults (21-22[deg]C/70-
72[deg]F constant); (2) prevent migration blockage conditions for
migrating adults (21-22[deg]C/70-72[deg]F average); (3) provide optimal
or near optimal juvenile growth conditions (under limited food
conditions) during the summer maximum conditions and optimal conditions
during the rest of the year (10-16[deg]C/50-61[deg]F constant); and (4)
prevent adults and juveniles from high disease risk and minimize the
exposure time to temperatures that can lead to elevated disease rates
(14-17[deg]C/57-63[deg]F constant). See Table III-1.
Data and information in the record indicates that salmon and
steelhead will use waters that are warmer than their optimal thermal
range during the summer and that portions of rivers and streams in the
Pacific Northwest naturally (i.e., absent human impacts) were
historically warmer than the optimal thermal range for salmonids during
the period of summer maximum temperatures. Therefore, EPA proposes a
7DADM numeric temperature criterion that is slightly warmer than the
optimal thermal range for salmon and steehead to protect this use. EPA
believes this criterion would provide sufficient protection from lethal
conditions and sub-lethal effects that would significantly adversely
affect these uses. As a result, if this value is met during the period
of summer maximum temperatures, then during other times of the summer
and the rest of the year, temperatures will likely be within the
optimal temperature range. An additional level of protection is
provided by requiring the criterion to be met during the warmest years
(except for the warmest year in ten), thus ensuring that the water will
be colder in most years.
iv. Temperature Criteria for Waters Designated for Salmon and
Steelhead Migration. As discussed in section III.B.2.iv, the salmon and
steelhead migration use applies to the lower Willamette River, a
portion of the John Day River, and a portion of the Snake River. To
protect salmon and steelhead migration, EPA proposes a 20[deg]C/
68[deg]F maximum 7DADM numeric criterion in conjunction with a
requirement to
[[Page 58771]]
ensure the presence of well-distributed cold water refugia. This
20[deg]C/68[deg]F criterion roughly translates to an equivalent
constant temperature of about 19-20[deg]C/66-68[deg]F because the large
mainstem rivers where this use is proposed have little diurnal
variation. Well-distributed cold water refugia are portions of a river
with cooler nighttime temperatures, or portions of a river that are
cooler during the day, that allow salmon and steelhead to migrate
through the river segment with minimal stress. Spatial cold water
refugia are waters that are at least 2[deg]C/4[deg]F colder than the
daily maximum temperature at the nearest location in the main river
channel. Spatial cold water refugia results from cold tributaries and
cooler groundwater flow entering into a warmer river. Temporal cold
water refugia are waters in rivers at times of the day when water
temperatures are at least 2[deg]C/4[deg]F colder than the daily maximum
temperatures on that day in the main river channel (from diurnal
temperature variation in a river), and are waters in rivers on days in
the summer when maximum water temperatures are at least 2[deg]C/4[deg]F
colder than the summer maximum temperature (from seasonal temperature
variation).
EPA believes that a 20[deg]C/68[deg]F criterion accompanied by a
narrative criterion to ensure the presence of well-distributed cold
water refugia would protect migrating juveniles and adults from lethal
temperatures and would prevent migration blockage conditions. However,
information in the record indicates that many sublethal effects could
occur without cooler nighttime temperatures or portions of the river
that are cooler during the day, rendering the numeric criterion of
20[deg]C/68[deg]F alone unprotective of the designated use. See
Temperature Guidance, pp. 28-30. In such a situation, even if the river
meets a 20[deg]C/68[deg]F criterion for maximum temperatures, the
duration of exposure to 20[deg]C/68[deg]F temperatures may cause
adverse effects in the form of increased disease and decreased swimming
performance in adults, and increased disease, impaired smoltification,
reduced growth, and increased predation for late emigrating juveniles
(e.g., fall chinook in the Columbia and Snake Rivers). Therefore, in
order to protect this use, it is appropriate to accompany the numeric
criterion of 20[deg]C/68[deg]F with a narrative provision that would
require protection of well-distributed cold water refugia.
EPA believes the amount of cold water refugia would be sufficient
to protect this use if a typical migrating salmon or steelhead could
access waters that are 18[deg]C/64[deg]F or colder for at least 12
hours a day. Salmon and steelhead that are exposed to 18[deg]C/64[deg]F
for half the day and up to 20[deg]C/68[deg]F for the remainder of the
day are likely to be at less risk than if these fish were continuously
exposed to 20[deg]C/68[deg]F because studies show the severity of
adverse effects from elevated water temperatures increases
significantly as temperatures reach 20-21[deg]C/68-70[deg]F.
As a practical matter, this provision is likely to be implemented
during establishment of a Total Maximum Daily Load (TMDL), because all
the waters where EPA is proposing for this use currently do not attain
20[deg]C/68[deg]F, thus a TMDL is required based on the numeric
criteria. When applying this narrative criterion in the context of a
TMDL, the State or EPA would identify the existing cold water refugia
and determine whether or not they were sufficient to protect the use.
Existing cold water refugia would be identified in the TMDL and the
existing temperatures of the cold water refugia would be the applicable
numeric criteria for those water segments. Thus, the TMDL would be the
document where the narrative cold water refugia criteria is translated
into numeric terms. If the existing cold water refugia were
insufficient to protect the use, then additional cold water refugia
sufficient to protect the use would also be identified and expressed in
numeric terms in the TMDL. Depending on how the TMDL is structured, the
expression of cold water refugia in numeric terms might also occur
during the development of watershed plans to implement the TMDL rather
than in the TMDL itself. In addition, the watershed plans may contain
measures to protect and restore the cold water refugia.
In the future, as these waters come into attainment of the
20[deg]C/68[deg]F numeric criterion, attainment of the specific numeric
cold water refugia criteria identified in the TMDL or watershed plan
will also need to be assessed to determine the attainment status of
these waters.
In the NPDES permitting context, existing cold water refugia are
required to be protected. Where additional cold water refugia have not
yet been identified, EPA believes it is impracticable to do so in the
context of an individual NPDES permit because this assessment requires
an evaluation of the adequacy of the existing cold water refugia on the
water body as a whole and is likely to be data intensive. EPA believes
this kind of comprehensive assessment is only practicable in the
context of TMDL development. Once the TMDL is completed, however, any
wasteload allocations to protect either existing or new cold water
refugia must be incorporated into NPDES permits during the next permit
cycle.
EPA seeks comment on whether a 18[deg]C/64[deg]F 7DADM criterion
(without well-distributed cold water refugia) would be a more
appropriate criterion for protection of the salmon and steelhead
migration use, since the record shows that it would be equally
protective of the use and may be more straight forward to implement
than the 20[deg]C/68[deg]F with a narrative criterion for well-
distributed refugia. See EPA Temperature Guidance, pp15-25. EPA,
however, believes 18[deg]C/64[deg]F throughout the waters would be
extremely costly to attain as compared to the 20[deg]C/68[deg]F with a
narrative criterion for well-distributed refugia.
v. Temperature Criteria for Waters Designated for Salmon and
Steelhead Spawning Through Fry Emergence. EPA proposes a 13[deg]C/
55[deg]F maximum 7DADM criterion (which roughly translates to an
equivalent constant temperature of 11.5[deg]C/53[deg]F) for this use
(during the time of year when it applies) to: (1) Protect gametes
inside adults prior to spawning (less than 13[deg]C/55[deg]F constant),
(2) provide temperatures at which spawning is most frequently observed
in the field (4-14[deg]C/39-57[deg]F daily average), and (3) provide
protective temperatures for egg incubation (4-12[deg]C/39-54[deg]F
constant for good survival and 6-10[deg]C/43-50[deg]F constant for
optimal range) that occurs over the winter (salmon) and spring (trout),
assuming the typical annual thermal pattern. As discussed in section
III.B.1, EPA believes that in many water bodies, attainment of the
summer maximum criteria for all the other proposed designated uses will
result in attainment of the 13[deg]C/55[deg]F maximum 7DADM criterion
for protection of salmon and steelhead spawning through fry emergence.
4. Alternative Criteria
i. EPA's Basis for the Proposed Natural Conditions Criterion. EPA
is proposing an alternative criterion for natural conditions that would
apply instead of the numeric criterion, where applicable. The criterion
would require that where a water body or segment's water temperature
under natural conditions exceeds the numeric criterion identified
above, then the natural condition would be the applicable water quality
criterion. Natural temperatures are those that would exist in the
absence of human activities that alter stream temperatures. EPA views
numeric criteria that reflect natural conditions to be protective of
[[Page 58772]]
salmonid designated uses because river temperatures prior to human
impacts clearly supported healthy salmonid populations. EPA intends
that the estimate of the temperature reflecting natural conditions be
determined by the State or EPA using a scientifically-defensible method
that utilizes the best available data, as indicated in the proposed
rule at 40 CFR 131.39(d)(1). Typically, this determination is made in
the context of a TMDL. EPA recognizes, however, that there will always
be uncertainties in estimating natural conditions. Potential sources of
uncertainty are numerous, including, but not limited to, data gaps,
measurement errors, model errors, omissions in identification of
impacts, and aggregation errors. It is important that regulatory
agencies document the sources of uncertainty in any assessment for the
benefit of decision-makers, stakeholders, and the public.
Where the natural temperature conditions so estimated exceeds
20[deg]C/68[deg]F, EPA proposes that the river must have well-
distributed cold water refugia. EPA views cold water refugia to be an
important aspect of the natural condition that must be specifically
identified in waters where the estimated natural condition exceeds
20[deg]C/68[deg]F because of the significant adverse effects to salmon
and steelhead exposed to temperatures exceeding 20[deg]C/68[deg]F. See
Table 1. Well-distributed cold water refugia allows salmon and
steelhead to minimize their exposure to temperatures that exceed
20[deg]C/68[deg]F. As discussed in section III.C.3.iv., EPA believes
the amount of cold water refugia would be sufficient if salmon or
steelhead could access waters that are at least 2[deg]C/4[deg]F colder
than the estimated natural maximum temperature for the main channel for
at least 12 hours a day. Refer to section III.C.3.iv. for a discussion
on how cold water refugia should be addressed in the context of TMDLs,
NPDES permits, and waterbody assessments.
Overview of Methods to Estimate Natural Background Temperatures:
There are a number of different ways of estimating natural temperature
conditions for the purposes of applying this proposed narrative
criterion. These include: (1) Demonstrating that current temperatures
reflect natural conditions, (2) using a non-degraded reference stream
for comparison, (3) using historical temperature data, (4) using
statistical or computer simulation models, and (5) assessing the
historical distribution of salmonids. There may be other ways as well.
Each approach has its strengths and weaknesses and therefore may or may
not be most appropriate for a given situation. Moreover, all of these
approaches have uncertainty, which should be quantitatively described
where possible. EPA encourages the use of a combination of approaches
to estimate natural background temperatures, where feasible. Below is
an overview of the five approaches listed above.
Demonstrating That Current Temperatures Reflect Natural Conditions:
Under this approach, the past and present human activities that could
impact the river temperatures are documented and a technical
demonstration is made that the human activities do not currently impact
temperatures. This approach is most applicable to non-degraded
watersheds (e.g., State and National parks, wilderness areas, and
protected State and National lands). These watersheds can be used as
``reference'' streams for estimating the natural background
temperatures of degraded streams (see below). If there is a small human
impact on temperatures, it may also be possible to estimate the human
impact and subtract it from current temperatures to calculate the
natural temperatures.
Comparisons to a Reference Stream: It is often reasonable to assume
that the natural temperatures of a thermally degraded stream are
similar to those of a non-degraded stream, so long as the location,
landscape context, and physical structure of the stream are
sufficiently similar. The challenge to this approach is finding a
reference stream that is of similar location, landscape context, and
physical structure. Because large rivers are unique and most in the
Pacific Northwest have been significantly impacted by human activities,
this approach is most applicable to smaller streams where a reference
stream with current temperatures at natural conditions exists.
Historical Temperature Data: For some rivers, historical
temperature data are available that reflect temperatures prior to human
influences on the river's temperature regime, and can be used as an
estimate of natural temperatures. Factors that lend uncertainty to
historic temperature data are the uncertain nature of the quality of
the data and whether or not humans affected temperature prior to data
collection. Further, historical temperature data often do not
adequately capture the spatial and/or temporal variability in stream
temperature due to limited spatial or temporal sampling. Historical
data may be useful, however, for verifying estimates of modeled natural
temperatures.
Temperature Models: Two major methods have been commonly used for
water quality modeling in the United States over the last 20 years: (1)
Statistical models, which are based on observed relationships between
variables and are often used in conjunction with measurements from a
reference location, and (2) process-based models, which attempt to
quantify the natural processes acting on the water body. Process-based
models are often employed when no suitable reference locations can be
identified.
Statistical models, also referred to as empirical models, estimate
the thermal conditions of streams by using statistics to find
correlations between stream temperature and those landscape
characteristics that control temperature (e.g., elevation, latitude,
aspect, riparian cover, etc.). The equations in statistical models
describe the observed relationships in the variables as they were
measured in a specific location. If the specific location is a non-
degraded reference stream, then the model can be used to estimate
natural conditions in degraded streams. Statistical models have the
advantage of being relatively simple, as they rely on general data and
statistics to develop correlations.
The comparability between the reference water body where the
statistical correlations are generated and the assessment water body
strongly affects the applicability of statistical models. Uncertainties
in statistical model results increase with increasing dissimilarity
between the landscape characteristics of the reference and assessment
water bodies. Uncertainties also increase when models do not include
landscape characteristics that control important processes affecting
the water temperature. For these reasons, statistical models are best
suited for small headwater streams or for generalized predictions
across a large landscape. Process models, also referred to as
simulation models, are based on mathematical characterizations of the
critical processes that affect water temperature in rivers. The
equations are constructed to represent the observed or expected
relationships and are generally based on physical or chemical
principles that govern the fate and transport of heat in a river (e.g.,
net heat flux from long-wave radiation, direct short wave radiation,
convection, conduction, evaporation, streamside shading, streambed
friction, and water's back radiation) (Bartholow, 2000).
Estimating water temperature with a process model is generally a
two-step process. As a first step, the current river temperatures are
estimated with system characteristics (e.g., amount of shade
[[Page 58773]]
provided by the canopy, river geometry, point source inputs, etc.)
reflecting current conditions. Model performance can then be evaluated
by comparing simulated temperatures to measured temperatures. Once the
model is thus calibrated, the second step involves changing the system
characteristics to represent natural conditions. Examples of these
changes are removal of point source discharges from the model inputs,
changing the model hydrodynamics from impounded conditions due to a dam
to free-flowing conditions, and increasing the riparian shade to
represent a natural forest.
Unlike statistical models, process models do not rely upon data
from reference locations, so they can be used for rivers that have no
suitable natural reference comparisons available. Thus, process models
are well suited for estimating natural conditions for larger streams
and rivers. Although powerful, process models are by no means
infallible. As noted above, there are numerous potential sources of
uncertainty in model estimates, and these should be well documented in
decision-making.
In addition to estimating natural conditions, process-based models
are useful for understanding the basic mechanisms influencing water
temperature in a watershed, understanding the relative contributions
from different sources at different locations, understanding cumulative
downstream impacts from various thermal loads, performing ``what if''
scenarios for different mitigation options, and setting TMDL
allocations.
Historical Fish Distributions: Maps of historic salmonid
distributions and their time of use can provide rough estimates of
natural temperatures. Areas where salmonids existed historically likely
provided temperatures suitable for salmonids and, as described in the
Temperature Guidance, EPA has a fairly good understanding of suitable
temperatures for various life stages of salmonids.
ii. EPA's Basis for Proposing a Criterion to Protect Waters That
Are Currently Cold. One of the important principles in protecting the
designated uses proposed in this rule is the protection of existing
high quality habitat. EPA, therefore, believes it is important to have
strong regulatory measures to protect waters with ESA-listed salmonids
that are currently colder than EPA's proposed numeric criteria. EPA is
proposing a narrative criterion specific to waters in which salmonid
species that are listed as threatened or endangered under the ESA are
present, and where available data and information from ten years prior
to the date of the publication of the final rule in the Federal
Register reflect the temperature in the water body and demonstrate that
the warmest summer maximum 7DADM temperature is colder than the
applicable numeric criterion. In these cases, the summer maximum 7DADM
temperature shall be the applicable water quality criterion, unless a
complete data record of ten years is available, in which case the
maximum 7DADM temperature for the year with the second highest maximum
7DADM shall be the applicable criterion.
Because the temperatures of many waters in the Pacific Northwest
are currently higher than the summer maximum criteria proposed in this
rule, the high quality, thermally-optimal waters that do exist are
important for the survival of ESA-listed salmonids. Additional warming
of these waters will likely cause harm by further limiting the
availability of thermally optimal waters. Further, protection of these
cold water segments in the upper part of a river basin plays an
important role in maintaining temperatures downstream. Thus, in
situations where downstream temperatures currently exceed numeric
criteria, upstream temperature increases in waters currently colder
than the criteria may further contribute to the non-attainment
downstream, especially where there are insufficient intervening river
miles to allow the river to return to equilibrium temperatures. See
``Issue Paper 3: Spatial and Temporal Patterns of Stream Temperature,''
Prepared as Part of EPA Region 10 Temperature Water Quality Criteria
Guidance Development Project. EPA-910-D-01-003, May 2001.; ``Technical
Synthesis: Scientific Issue Relating to Temperature Criteria for
Salmon, Trout, and Char Native to the Pacific Northwest,'' A Summary
Report Submitted to the Policy Workgroup of the EPA Region 10 Water
Temperature Criteria Guidance Project. EPA-910-D-01-007. Finally,
natural summertime temperatures in Pacific Northwest waters were
spatially diverse, with areas of cold-optimal, warm-optimal, and
warmer-than-optimal water. The natural conditions narrative criterion
described previously deals with natural conditions reflecting warmer-
than-optimal water temperature. EPA believes it is important, however,
to balance the effects of these warmer waters by adopting provisions to
protect waters that are at the colder end of their optimal thermal
range. EPA's proposed rule is intended to do this.
Provisions to protect waters currently colder than numeric criteria
can also be important to ensure the numeric criteria proposed today
protect salmonid uses. As discussed previously, EPA's proposed criteria
are based in part on the judgment that meeting the criteria at the
lowest downstream point at which the use is designated will likely
result in cooler waters upstream. These proposed cold water protection
provisions provide more certainty that this will be true.
EPA requests comment on an alternative that would rely on the
State's existing antidegradation policy and EPA's proposed
implementation procedures to protect these high-quality waters. In
general, antidegradation policies, which are part of water quality
standards, prohibit a lowering of water quality in high-quality waters
except when specific procedural and substantive requirements are
satisfied. Using the antidegradation policy to protect high-quality
waters may provide greater site-specific flexibility because it would
not be necessary to promulgate a rule change to accomodate a situation
where some temperature increase (but still below the applicable
criterion) was unavoidable. Also, there may be practical difficulties
in determining what the applicable criterion is for high-quality waters
under the proposed approach if data is incomplete or implementation
resources are limited.
Table III-1.--Summary of Temperature Considerations for Salmon and Trout Life Stages
----------------------------------------------------------------------------------------------------------------
Life stage Temperature consideration Temperature and unit Reference
----------------------------------------------------------------------------------------------------------------
Spawning and Egg Incubation....... * Temp. Range at which 4-14 [deg]C (daily Issue Paper 1; pp 17-18.
Spawning is Most avg). Issue Paper 5; p 81.
Frequently observed in
the Field.
* Egg Incubation Studies..
--Results in Good Survival 4-12 [deg]C Issue Paper 5; p 16.
(constant).
--Optimal Range........... 6-10 [deg]C
(constant).
[[Page 58774]]
* Reduced Viability of 13 [deg]C Issue Paper 5; pp 16 and
Gametes in Holding Adults. (constant). 75.
-----------------------------------
Juvenile Rearing.................. * Lethal Temp. (1 Week 23-26 [deg]C Issue Paper 5; pp 12, 14
Exposure). (constant). (Table 4), 17, and 83-
84.
* Optimal Growth..........
--unlimited food.......... 13-20 [deg]C Issue Paper 5; pp 3-6
(constant). (Table 1), and 38-56.
--limited food............ 10-16 [deg]C
(constant).
* Rearing Preference Temp. 10-17 [deg]C Issue Paper 1; p 4 (Table
in Lab and Field Studies. (constant). 2).
<18 [deg]C (7DADM)... Welsh et al. 2001.
* Impairment to 12-15 [deg]C Issue Paper 5; pp 7 and
Smoltification. (constant). 57-65.
Issue Paper 5; pp 7 and
57-65.
* Impairment to Steelhead 12 [deg]C
Smoltification. (constant).
* Disease Risk (lab ..................... Issue Paper 4, pp 12-23.
studies).
--High.................... 18-20
[deg]C (constant).
--Elevated................ 14-17 [deg]C
(constant).
--Minimized............... 12-13 [deg]C
(constant).
-----------------------------------
Adult Migration................... * Lethal Temp. (1 Week 21-22 [deg]C Issue Paper 5; pp 17, 83-
Exposure). (constant). 87.
* Migration Blockage and 21-22 [deg]C Issue Paper 5; pp 9, 10,
Migration Delay. (average). 72-74.
Issue Paper 1; pp 15-16.
* Disease Risk (lab
studies).
--High.................... 18-20 Issue Paper 4; pp 12-23.
[deg]C (constant).
--Elevated................ 14-17 [deg]C
(constant).
--Minimized............... 12-13 [deg]C
(constant).
* Adult Swimming
Performance.
--Reduced................. 20 [deg]C Issue Paper 5; pp 8, 9,
(constant). 13, 65-71.
--Optimal................. 15-19 [deg]C
(constant).
* Overall Reduction in 17-18 Issue Paper 5; p 74.
Migration Fitness due to [deg]C (prolonged
Cumulative Stresses. exposures).
----------------------------------------------------------------------------------------------------------------
Table III-2.--Summary of Temperature Considerations for Bull Trout Life Stages
----------------------------------------------------------------------------------------------------------------
Life stage Temperature consideration Temperature and unit Reference
----------------------------------------------------------------------------------------------------------------
Spawning and Egg Incubation....... * Spawning Initiation..... <9 [deg]C (constant). Issue Paper 5; pp 88-91.
* Temp. at which Peak <7 [deg]C (constant). Issue Paper 5; pp 88-91.
Spawning Occurs.
* Optimal Temp. for Egg 2-6 [deg]C (constant) Issue Paper 5; pp 18, 88-
Incubation. 91.
* Substantially Reduced 6-8 [deg]C (constant) Issue Paper 5; pp 18, 88-
Egg Survival and Size. 91.
-----------------------------------
Juvenile Rearing.................. * Lethal Temp. (1 week 22-23 [deg]C Issue Paper 5; p 18.
exposure). (constant).
* Optimal Growth..........
--unlimited food.......... 12-16 [deg]C Issue Paper 5; p 90.
(constant). Selong et al 2001. Bull
trout peer review, 2002.
--limited food............ 8-12 [deg]C
(constant).
* Highest Probability to 12-13 [deg]C (daily Issue Paper 5; p 90.
occur in the field. maximum). Issue Paper 1; p 4
(Table 2). Dunham et
al., 2001. Bull trout
peer review, 2002.
* Competition Disadvantage 12 [deg]C Issue Paper 1; pp 21-23.
(constant). Bull trout peer review,
2002.
----------------------------------------------------------------------------------------------------------------
D. IGDO Criterion for Salmonid Spawning
1. Background
The early life stages of fish are recognized as being the most
sensitive and requiring relatively high DO concentrations. The oxygen
demand by embryos depends on temperature and on the stage of
development with the greatest DO required just prior to hatching. When
water temperature is near 15[deg]C/58[deg]F, maximum critical levels of
DO (where ambient levels meet metabolic needs) for steelhead embryos
were estimated at 10.2 mg/L (Rombough, 1986). Rombough (1986) and other
researchers have shown that critical oxygen concentration increases
with temperature and with the stage of development of the fish. In
experiments to determine critical DO levels in steelhead embryos,
Rombough (1988) found that critical DO levels rose from less than 1.0
mg/L shortly after fertilization to 9.7 mg/L prior to hatching (implies
an IGDO of at least 6.7 mg/L), depending on the temperature. The
crucial timing of IGDO, stream temperature, and flow rate varies with
each salmonid Evolutionarily Significant Unit's specific
characteristics. Sowden and Power (1985) observed that survival in
field studies is negligible when IGDO falls below 5 mg/L. This is
consistent with other studies. Phillips and Campbell (1962) and Maret
et al. (1993) observed no or negligible survival in field studies where
IGDO fell below 8.0 mg/L.
[[Page 58775]]
Turnpenny and Williams (1980) also found survival significantly reduced
at 8 mg/L. Other studies found reduced growth of juvenile salmon
correlating with IGDO with significant reductions occuring at levels
below 9 mg/L (Maret et al., 1993). Growth reductions result in small-
sized juveniles that can be poor competitors and face increased risks
from predation, disease, and starvation (Mason, 1969; Chapman and
McLeod, 1987).
2. EPA's Proposed IGDO Criterion
EPA is proposing a water quality criterion for IGDO for the
protection of bull trout spawning and salmon and steelhead spawning
through fry emergence such that in water bodies or segments in which
the numeric temperature criteria for bull trout spawning and salmon and
steelhead spawning through fry emergence applies according to the
proposed use designation maps, the spatial median IGDO shall not be
less than 8.0 mg/L.
Altitude and temperature place physical limitations on the oxygen
concentration in water. Oxygen saturation level decreases with
increasing altitude and naturally, increasing temperature. (Oregon
Department of Environmental Quality, Dissolved Oxygen 1992-1994 Water
Quality Standards Review Final Issue Paper, June 1995). Thus, the IGDO
criterion for the protection of egg incubation and fry emergence may
not be achievable in some locations and times. EPA recognizes the need
to have an alternative criterion when high altitude or naturally
occurring warm temperatures preclude meeting the 8 mg/L IGDO criterion.
Therefore, EPA proposes the following modifying provision to the IGDO
criterion. Where barometric pressure, altitude, and air temperature
preclude attainment of the IGDO criterion, then the criterion shall be
not less than 95 percent of the maximum IGDO level attainable given the
barometric pressure, altitude, and air temperature.
EPA requests comment on its proposed IGDO criterion, which is based
on the studies cited above, and any additional data relevant to this
criterion. EPA also notes that in general, an ambient water column DO
level of 11 mg/L will ensure an IGDO of 8 mg/L and requests comment on
whether an IGDO criterion is necessary to protect salmonid spawning in
waters that already have an 11 mg/L ambient DO criterion.
E. Antidegradation Implementation Methods
1. Background
Section 303 (33 U.S.C. 1313) of the CWA requires States and
authorized Tribes to adopt water quality standards for waters of the
United States within their applicable jurisdictions. Such water quality
standards must include, at a minimum: (1) Designated uses for all water
bodies within their jurisdictions, (2) water quality criteria necessary
to protect the most sensitive of the uses, and (3) antidegradation
provisions consistent with the regulations at 40 CFR 131.12.
Antidegradation is an important tool for States and authorized Tribes
to use in meeting the CWA's requirement that water quality standards
protect the public health or welfare, enhance the quality of water and
meet the objective of the CWA to restore and maintain the chemical,
physical and biological integrity of the nation's waters.
EPA's regulation at 40 CFR 131.12 requires that States and
authorized Tribes adopt antidegradation policies to provide three
levels of water quality protection and identify implementation methods.
The first level of protection at 40 CFR 131.12(a)(1) requires the
maintenance and protection of existing instream water uses and the
level of water quality necessary to protect those existing uses (tier
1). Protection of existing uses is the ``floor'' of water quality
protection afforded to all waters of the United States. Existing uses
are ``* * * those uses actually attained in the water body on or after
November 28, 1975, whether or not they are included in the water
quality standards.'' (40 CFR 131.3(e))
The second level of protection is for high quality waters (tier 2).
High quality waters are defined in 40 CFR 131.12(a)(2) as waters where
the quality is better than the levels necessary to support propagation
of fish, shellfish, and wildlife and recreation in and on the water.
This high water quality is to be maintained and protected unless the
State or authorized Tribe finds, after public participation and
intergovernmental review, that allowing lower water quality is
necessary to accommodate important economic or social development in
the area in which the waters are located. In allowing lower water
quality, the State or authorized Tribe must assure water quality
adequate to protect existing uses. Further, prior to allowing lower
water quality, the State or authorized Tribe must ensure that all
applicable statutory and regulatory requirements are achieved for all
other new and existing point sources and all cost-effective and
reasonable best management practices required by the State or
authorized Tribe are achieved for nonpoint source control.
Finally, the third and highest level of antidegradation protection
is for Outstanding National Resource Waters (ONRWs) (tier 3). If a
State or authorized Tribe determines that the characteristics of a
water body constitute an outstanding National resource, such as waters
of National and State parks and wildlife refuges and waters of
exceptional recreational or ecological significance, and designates a
water body as such, then those characteristics must be maintained and
protected. See 40 CFR 131.12(a)(3).
In addition to requiring States and authorized Tribes to have an
antidegradation policy, 40 CFR 131.12 requires States to identify
methods for implementing such a policy. Such methods are not required
to be contained in the State's regulation, but as they inform EPA's
judgment regarding whether the State's antidegradation policy is
consistent with the Federal regulations at 40 CFR 131.12, they are
subject to EPA review. Where the State chooses to make such methods
part of its water quality standards regulations, section 303(c)(3) of
the CWA and EPA's implementing regulations require them to be submitted
to EPA for review. When a State or authorized Tribe chooses to develop
such methods as guidance or outside of regulation, EPA reviews the
methods either in connection with the State or Tribe's submission of an
amendment to its antidegradation regulations under CWA section
303(c)(3) or under its discretionary authority to review existing water
quality standards under CWA section 303(c)(4).
EPA's regulations at 40 CFR 131.12 provide a great deal of
discretion to States regarding the amount of specificity required in
antidegradation implementation methods. The regulations do not specify
minimum elements for such methods, but do require that such methods not
undermine the intent of the antidegradation policy. See Advanced Notice
of Proposed Rulemaking, 63 FR 36742, 36781 July 7, 1998.
Finally, EPA wishes to explain the applicability of antidegradation
provisions to point sources and nonpoint sources. While antidegradation
requirements as water quality standards apply to the waterbody, the CWA
requires only that antidegradation be applied to point sources because
the CWA only gives EPA authority to regulate point sources.
[[Page 58776]]
Appalachian Power Company v. Train, 545 F.2d 1351, 1373 (4th Cir.
1976). Thus, whether antidegradation applies to nonpoint sources is
solely a question of State and Tribal law. The CWA and EPA's
regulations leave to the States and authorized Tribes the decision
whether to regulate such sources by requiring that they undergo
antidegradation review. American Wildlands v. Browner, 260 F.3d 1192,
1198 (10th Cir. 2001). EPA's proposed antidegradation methods must also
meet the requirements of the ESA.
2. Why Is EPA Proposing Antidegradation Implementation Methods for the
State of Oregon?
EPA is proposing methods for implementing the antidegradation
policy adopted by the State of Oregon in order to comply with the
court's final judgment in Northwest Environmental Advocates v. EPA &
NMFS (August 13, 2003). At the time of the Oregon water quality
standards litigation, EPA had approved Oregon's antidegradation policy.
In addition, at the time of the initial briefing in the Oregon
litigation, Oregon was in the process of developing methods for
implementing its antidegradation policy. See ``State of Oregon:
Antidegradation Policy Implementation Internal Management Directive for
NPDES Permits and Section 401 Water Quality Certifications,'' March
2001 (``the Directive''). These methods were not contained in Oregon's
water quality standards regulations and were not submitted to EPA for
review and approval as a ``new or revised standard'' under CWA section
303(c)(3). In addition, EPA did not review the Directive as part of any
discretionary action to review Oregon's existing antidegradation
regulations under CWA section 303(c)(4). Because of the jurisdictional
argument EPA made in the Oregon litigation and because the
implementation methods had not been submitted to EPA for review, EPA
did not inform the court of the existence of Oregon's implementation
methods. EPA argued that EPA was not subject to a mandatory duty under
CWA section 303(c)(3) because there was no new or revised water quality
standard regarding antidegradation that triggered a mandatory duty for
EPA review, and that there could be no Administrative Procedure Act
claim unless and until a party petitioned the Agency to act under its
discretionary authority, because absent such a petition, there is no
agency ``action'' to review. Although the court agreed with EPA in
holding that EPA did not have a mandatory duty to review Oregon's
implementation methods, the court found that it could immediately
review EPA's failure to exercise its discretionary authority to review
Oregon's methods for implementing its antidegradation policy. 268
F.Supp.2d 1255, 1264 (D.Or. 2003). The court held that EPA acted
arbitrarily in failing to exercise its discretion to promulgate an
implementation plan for Oregon. The court, therefore, ordered EPA to
promulgate an antidegradation implementation plan for Oregon. While EPA
does not agree with the court's decision, EPA is complying with the
court's order. 268 F.Supp.2d at 1265.
3. What Antidegradation Implementation Methods Is EPA Proposing for the
State of Oregon?
Subsequent to the court's order, Oregon proposed to amend its water
quality standards, including its antidegradation regulations, to
include key elements of its antidegradation implementation methods
within its regulations. Oregon Administrative Rule (OAR) 340-041-0004;
August 15, 2003. EPA's proposed rule is based on Oregon's proposal.
When Oregon finally adopts revisions to its water quality standards,
Oregon is required to submit them to EPA for review. As part of its
review of Oregon's new or revised water quality standards as contained
in State regulation, EPA will also consider Oregon's implementation
methods that are not in State regulation, as information that is
relevant to understanding what the regulatory revisions mean in
practice. The final judgment dated August 13, 2003, requires EPA by
March 2, 2004, to either promulgate final regulations regarding methods
for implementing Oregon's existing antidegradation policy or to approve
Oregon's submission. Thus, EPA may approve Oregon's antidegradation
methods even if they are not the same as this proposal, as long as they
are consistent with the CWA. EPA will consider what is contained in the
Directive as part of determining whether Oregon's implementation
methods comport with the CWA.
Tier 1: EPA is proposing that, to implement Tier 1, any lowering of
water quality in any water body must protect existing uses. Oregon's
existing regulation currently contains provisions to protect existing
uses. See e.g., 340-041-0004(1) Purpose; 340-041-0004(8)(c) High
quality waters; and 340-041-0004(10), which refers in turn to 3401-041-
0004(12)(a)(C). Due to the court's order, EPA is proposing, consistent
with Oregon's Regulations and Directive (page 12 flow chart) that in
all waters, including those that are not high quality, the existing use
must be protected. For example, even in a water body that is impaired,
if it continues to support a limited aquatic life use or the water
quality supported an aquatic life use since November 28, 1975, prior to
any authorization that requires compliance with water quality
standards, the level of water quality necessary to protect that
``existing use'' must be maintained and protected. 40 CFR 131.3(e);
131.12(a)(1).
Tier 2: The purpose of EPA's antidegradation regulations with
regard to high quality waters, 40 CFR 131.12(a)(2), is to ensure that
assimilative capacity in the waterbody is not used up without a public
process to determine that lowering water quality is necessary to
accommodate important social or economic development. EPA's regulation
applicable to high quality waters contains terms that provide States,
and Territories and authorized Tribes with significant discretion to
determine what is a high quality water, what constitutes a ``lowering''
of water quality that would trigger a Tier 2 antidegradation review,
and what constitutes a determination that the ``lowering'' is necessary
to accommodate important social or economic development. Thus, in
identifying methods for implementing antidegradation policies, EPA
would like States and authorized Tribes to explain how they intend to
implement these three aspects of the regulation.
Oregon's definition of high quality waters in its existing
antidegradation policy tracks EPA's regulation precisely at 40 CFR
131.12(a)(2). Regarding an implementation method for this regulation,
EPA proposes to follow Oregon's approach in defining a high quality
water as one that has water quality that meets or is better than all
water quality standards. In other words, a high quality water is one
that is not a water quality-limited water. Directive at 21.
EPA recognizes that Oregon's approach reflects a waterbody-by-
waterbody approach to antidegradation rather than a parameter-by-
parameter approach. In EPA's ANPRM, July 7, 1998, EPA discussed the
advantages and disadvantages to both approaches to designating high
quality waters. 63 FR 36782, 36783. EPA also discussed these issues in
the preamble to its proposed rule regarding antidegradation
implementation procedures for Kentucky. 67 FR 68971, 67798-99 November
14, 2002. EPA interprets the regulation to authorize either approach.
Although arguably a parameter-by-parameter approach may capture more
[[Page 58777]]
waters as Tier 2 waters, EPA notes that Oregon includes waters that
``meet'' all water quality standards as Tier 2 waters, rather than
using the term ``exceed'' in the regulation to exclude from Tier 2
review those waters that precisely meet water quality standards. Under
Oregon's approach, which EPA follows here, all waters are captured
within the State's water quality management system. Impaired waters are
addressed through the TMDL provisions of CWA section 303(d) and those
that are not impaired are not lowered absent a public process to
determine that such lowering is necessary to accommodate important
social or economic development. Further, Oregon's approach has the
advantage of relying on pre-existing assessment decisions rather than
requiring additional assessment of the waterbody to determine if it is
a Tier 2 water.
Regarding what constitutes a ``lowering'' that triggers Tier 2
review, in today's proposed rule, EPA proposes a rule tracking Oregon's
proposed amendment to its antidegradation regulations that allows for
certain de minimis loadings not to constitute a ``lowering'' of water
quality that triggers Tier 2 antidegradation review. EPA has long
interpreted the antidegradation policy to allow a determination that
certain discharges have an insignificant impact on water quality and
therefore may not require an antidegradation review. See EPA's proposed
rule regarding Kentucky's antidegradation implementation methods, 67 FR
68791, November 14, 2002. See also ``Proposed Water Quality Guidance
for the Great Lakes System,'' (GLI) 58 FR 20802, April 16, 1993; and
``Supplementary Information Document for the Final Great Lakes
Guidance,'' Chapter VII at 203-225, 207-210 included in the record for
this rule.
Specifically, EPA proposes that pollutant concentration increases
are not considered lowering of water quality if there is no overall
increase in the total mass load of the pollutant on at least an annual
basis. Also, a de minimis change in temperature that does not reduce or
degrade water quality of the State is not required to undergo Tier 2
review. EPA tracks Oregon's definition of de minimis to mean a seven-
day average maximum stream temperature increase or decrease of
0.30[deg]C/0.54[deg]F or less across the watershed.
Third, regarding what constitutes a finding that a lowering is
necessary to accommodate important social or economic development, EPA
tracks the main components of Oregon's proposed antidegradation
regulations and the main principles contained in Oregon's Directive,
that the discharger/applicant provide the State with enough information
to allow for a financial impact analysis that assesses whether allowing
important economic and social development justifies lowering water
quality. EPA is aware that Oregon has included in its proposed
amendments much more detail of how this assessment would be done
through a reference to certain parts of its Directive; however, EPA is
not proposing that those specifics be contained in EPA's proposed rule.
EPA believes that including this degree of specificity in a Federal
rulemaking is not required by the regulations at 40 CFR 131.12(a)(2)
nor is it in the public interest because once codified, a subsequent
Federal rulemaking would be necessary to allow the State to deviate
from the Federal rule, and EPA does not wish to constrain a State's
discretion to this degree. EPA intends to consider the specifics of the
Directive, incorporated into the State regulation, when EPA acts on the
State's final revised water quality standards regulations submitted to
EPA.
Tier 3: EPA proposes to track Oregon's proposed water quality
standards regulation regarding Tier 3 implementation for Outstanding
Resource Waters (ORWs). (In today's proposed rule, EPA uses the term
Outstanding Resource Water or ORW to be consistent with the State of
Oregon's terminology in its existing regulation.) EPA's proposed rule
describes the process the State would follow in designating high
quality waterbodies to be classified as ORWs in order to protect the
water quality parameters that affect ecological integrity of critical
habitat or special water quality values that are vital to the unique
character of those waterbodies.
F. Effect of This Proposed Rule on the State's Water Quality Programs
EPA's approach in this rulemaking does not undermine the State's
primary role in designating uses, establishing protective criteria, and
ensuring the protection of high quality waters in Oregon. EPA prefers
that States establish their own regulations. If the standards are
adopted by the State for specific waters and approved by EPA before
final promulgation of the Federal standards, EPA will not proceed with
the final promulgation and the State standards will take effect for CWA
purposes.
Water quality standards are implemented through such mechanisms as
NPDES permits. The State has flexibility in how it implements these
water quality standards. EPA has included a variance provision in
today's proposed rule, 40 CFR 131.39(h), authorizing the Regional
Administrator to grant variances based upon a permittee's
demonstration, consistent with the Federal regulations, that the use is
not attainable. Variances are particularly suitable for instances where
the cause of nonattainment is discharger-specific and it appears that
the designated use in question will eventually be attainable or be
demonstrated to be unattainable. For example, a permitted entity may
have a long-term plan (e.g., 20 or 30 years) in place that will result
in the eventual attainment of water quality standards; however, in the
intervening years attaining water quality standards may not be
possible. In this circumstance, the entity may wish to seek a water
quality standards variance. See Section V.C. In addition, the State
will use these water quality standards, if finalized, in identifying
impaired waters and establishing TMDLs. Where the State identifies
waters subject to this rulemaking as impaired, the State has discretion
in scheduling the water for TMDL development. Further discussion is
contained in section V.F.
IV. Economic Analysis
These standards may serve as a basis for development of NPDES
permit limits. In Oregon, the State is the NPDES permitting authority
and retains considerable discretion in implementing standards. EPA
prepared a preliminary analysis to evaluate potential costs to NPDES
dischargers in Oregon associated with future State implementation of
EPA's Federal standards.
Any NPDES-permitted facility that discharges to water bodies
affected by this proposed rule could potentially incur costs to comply
with the rule's provisions. The types of affected facilities may
include industrial facilities and publicly owned treatment works
(POTWs). EPA did not consider the potential costs for nonpoint sources,
such as agricultural and forestry-related nonpoint sources because the
CWA does not regulate nonpoint sources. EPA does, however, recognize
that the State may decide to require controls under State law for
nonpoint sources to achieve water quality standards. As a technical
matter, nonpoint source discharges are difficult to model and evaluate
for potential costs because they are intermittent, highly variable, and
occur under different hydrologic or climatic conditions than continuous
discharges from industrial and municipal facilities, which are
evaluated under critical low flow or drought conditions. Thus, the
evaluation of nonpoint sources and their
[[Page 58778]]
effects on the environment is highly site-specific and data sensitive.
In addition, EPA did not quantify the potential benefits of this
proposed rule for Oregon.
A. Identifying Affected Facilities
According to EPA's Permit Compliance System (PCS), there are 1,447
NPDES-permitted facilities in Oregon. Seventy-six of the facilities are
classified as major dischargers, and 1,371 are minor or general permit
dischargers. However, EPA did not include general permit facilities in
its analysis because data for such facilities are extremely limited,
flows are usually negligible, and EPA could not determine if any of
these facilities discharge to affected stream segments because location
information is not available in EPA's PCS database. Therefore, EPA's
analysis includes a universe of 382 permitted facilities (76 major and
306 minor).
To identify facilities potentially affected by the proposed rule,
EPA assumed that only facilities that discharge to rivers and streams
with new or more stringent uses and criteria may be affected by the
water quality criteria and designated uses provisions. (EPA also
assumed that facilities discharging directly to the Columbia River and
the Pacific Ocean are not affected by the proposed rule, except for
portions of the Columbia River where spawning occurs and the proposed
IGDO criterion would apply.) For IGDO, the current criterion of 6 mg/L
is less stringent than the revised IGDO criterion of 8 mg/L. Therefore,
all waters designated for salmonid spawning are potentially affected by
the proposed rule, and facilities discharging to these waters are
included in the set of potentially affected dischargers. EPA identified
these facilities by overlaying PCS facilities with the waters
designated for salmonid spawning using geographic information system
(GIS) software.
To identify waters for which the rule provides new or more
stringent uses and temperature criteria, EPA compared criteria and uses
designated for salmonid spawning and rearing and bull trout protection
for waters under the proposed rule with those criteria and uses that
are currently designated by the State of Oregon. The State's current
temperature criteria for salmonid rearing is 17.8[deg]C/64.0[deg]F,
with no differentiation for core juvenile rearing. The proposed rule
establishes a 16[deg]C/61[deg]F temperature criterion for core juvenile
rearing (and 18[deg]C/64[deg]F otherwise for rearing). Therefore, EPA's
rule provides a more stringent criterion for waters it designates for
core juvenile rearing (16[deg]C/61[deg]F), and facilities discharging
to these waters may be affected. EPA identified these facilities by
overlaying PCS facilities with the waters designated for core juvenile
rearing using GIS software.
For salmonid spawning, the current State criterion (12.8[deg]C/
55.0[deg]F) is slightly more stringent than the proposed criterion of
13[deg]C/55[deg]F. However, the time period that the criterion applies
may differ under EPA's proposed rule. Therefore, EPA assumed that any
waters for which it is designating a salmonid spawning period that is
earlier or later than currently designated by the State (e.g., current
designation from October 1 to May 31, versus a proposed designation
from September 1 to June 30) would be affected because a more stringent
criterion (i.e., more stringent than the current State salmonid rearing
criterion of 17.8[deg]C/64.0[deg]F would apply during the extended time
period. Facilities discharging to these waters may be impacted. EPA
identified these facilities by overlaying PCS facilities in a GIS map
with the waters for which an earlier or later salmonid spawning period
applies under the rule.
For antidegradation, the State already has an antidegradation
policy in place. This rule would primarily affect the methods by which
a review would occur in high quality waters. EPA assumed that
facilities discharging to streams not listed by the State as impaired
waters (i.e., not on the 303(d) list) are affected. Although high-
quality waters are not yet identified by the State, the unimpaired
waters provide a reasonable approximation of high-quality waters
(although some portion of these will be ORWs and not affected by the
procedures because no lowering of water quality is allowed for ORWs).
EPA identified these facilities by overlaying PCS facilities with
303(d) listed waters designated using GIS software. Table IV-1
summarizes the potentially affected facilities by provision. The
dischargers are grouped by discharger type (e.g., major or minor) and
category (e.g., POTW or industry category). Note that there are some
facilities affected by more than one provision.
Table IV-1. Estimated Number of Facilities Potentially Affected by Each Provisions of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Number of facilities
--------------------------------------------------------
Category Antidegradation
IGDO \1\ Temperature \2\ \3\
----------------------------------------------------------------------------------------------------------------
Major POTWs............................................ 29 3 14
Major Industrial....................................... 14 1 8
Minor Dischargers...................................... 149 44 130
--------------------
Total.............................................. 192 48 152
----------------------------------------------------------------------------------------------------------------
\1\ Estimated as facilities discharging to waters designated for salmonid spawning, except for portions of the
Columbia River where spawning occurs.
\2\ Estimated as facilities discharging to waters designated for core juvenile rearing, or an extended (earlier,
later, or both) spawning period, under the proposed rule.
\3\ Estimated as facilities discharging to waters not on the State's 303(d) list.
B. Method for Estimating Potential Compliance Costs
EPA identified a total of 48 facilities (4 major and 44 minor) that
may be potentially affected by the proposed uses and temperature
criteria. EPA evaluated all four major facilities and a sample of minor
facilities from this group for potential cost impacts associated with
the proposed rule. For these sample facilities, EPA assumed that any
discharge that results in a downstream temperature greater than
0.14[deg]C/0.25[deg]F above the applicable criterion would require
additional controls (current Oregon water quality standards state that
a discharge may not cause an increase in the surface water temperature
of greater than 0.14[deg]C/0.25[deg]F in waters exceeding the
applicable criterion [OAR 340-041-0205 (b)(A)]).
EPA evaluated the effect of the discharge on the receiving water
using monthly effluent and receiving water data. When possible, EPA
calculated the
[[Page 58779]]
average of the maximum 7-day moving averages for each month, or if
daily temperature data were not available, EPA evaluated the average of
the maximum monthly values. To determine the effect of the discharge on
the downstream temperature, EPA calculated the temperature at the edge
of the regulatory mixing zone (RMZ) assuming that the background stream
temperature is the applicable criterion when the waterbody currently
exceeds the criterion. For example, if the receiving water has a
proposed designated use of core salmonid rearing and currently has a
maximum temperature of 17[deg]C/62.6[deg]F in August, the effluent
temperature used in the compliance analysis would be the maximum
monthly effluent temperature between July and August, and the stream
temperature would be 16[deg]C/61[deg]F. Otherwise, EPA used the maximum
receiving water temperature (i.e., average of maximum 7-day moving
average temperatures, average of maximum monthly temperatures) in those
situations where the waterbody is currently attaining the criterion. In
both cases, EPA calculated the dilution ratio from the 7Q10 stream flow
(minimum 7-day average flow recurring once in 10 years) and the average
dry weather design flow for the facility. EPA's proposed rule specifies
that only 25 percent of the 7Q10 flow be used in the dilution
calculation in waters not currently attaining the applicable
temperature criterion. In many cases, facilities had already calculated
dilution ratios through stream modeling (e.g., CORMIX) or mixing zone
studies. In these cases, if less than 25 percent of the 7Q10 flow was
used in the model, EPA used the facility-calculated value, otherwise,
EPA calculated the dilution ratio assuming 25 percent of the stream
flow is available for dilution.
EPA estimated the most cost-effective control strategy for each
facility to achieve compliance. To estimate the potential costs
associated with the controls, EPA used temperature management plans
(TMPs) from facilities that have already developed them to determine
the necessary controls on point sources to reduce effluent
temperatures. Possible controls include process optimization, pollution
prevention, land application, and cooling towers. EPA determined costs
for these controls from readily available documentation and updated
these sources to 2003 dollars.
There are no IGDO data available for any of the affected waters,
primarily because methods to measure IGDO have only recently been
developed. Therefore, EPA estimated compliance with current and
proposed IGDO criteria based on an estimated 3.0 mg/L differential
between the IGDO and dissolved oxygen (DO) in the overlying water.
Studies cited (Koski, 1965; Hollender, 1981) in EPA's Ambient Water
Quality Criteria for Dissolved Oxygen (EPA, 1986) indicate that 3.0 mg/
L is a good approximation of the differential between water column DO
and IGDO. Therefore, EPA believes it is reasonable to assume that a
water designated for bull trout juvenile rearing and spawning or salmon
and steelhead spawning though fry emergence that has a water column DO
concentration of 11.0 mg/L would achieve 8.0 mg/L IGDO. Using this
differential, the current Oregon IGDO criterion of 6.0 mg/L corresponds
to a minimum instream DO concentration of 9.0 mg/L. EPA's proposed IGDO
criterion of 8.0 mg/L corresponds to a minimum instream DO
concentration of 11.0 mg/L.
Current Oregon water quality standards specify a minimum water
column DO for protection of salmonid spawning is 11.0 mg/L, unless the
minimum IGDO (measured as a spatial median) is 8.0 mg/L, then the
minimum DO may be 9.0 mg/L. If conditions of barometric pressure,
altitude, and temperature preclude attainment of 11.0 or 9.0 mg/L
standards, then the minimum DO may be 95 percent of saturation.
EPA's rule only changes the IGDO criterion, and not Oregon's 11.0
mg/L (or 9.0 mg/L) instream DO criteria. Thus, if a stream is meeting
the current Oregon water quality standards, based on EPA's Ambient
Water Quality Criteria for Dissolved Oxygen (EPA, 1986), the stream
would also meet the revised EPA criterion, and no costs would be
incurred as a result of this part of the rule. If a stream is not
meeting the current water quality standards, the costs of attaining
compliance would be associated with existing Oregon water quality
standards, not as a result of the proposed rule. Therefore, EPA
estimated the cost of this provision to be zero.
To develop an estimate of the incremental impact of the
antidegradation provision of the proposed rule, EPA first estimated the
number of facilities located on newly designated high-quality waters
that might request to increase discharges during their permit term. EPA
assumed that all waters not on the State's 303(d) list are high quality
waters. EPA estimated that 22 major facilities and 130 minor facilities
may discharge to high-quality waters. NPDES permits are issued for a
period of five years, after which they must be renewed. Therefore, on
average, one-fifth (20 percent) or approximately 30 of the 152 existing
permit holders will renew their permits each year. Based on the
frequency of past Oregon antidegradation reviews and EPA's past
experience in calculating costs for its antidegradation rules for other
States, EPA assumed that no more than five percent of facilities that
discharge to high-quality waters would likely request an increase in an
effluent limit to the extent that an antidegradation review would be
required when they renew their permit. Given 30 permit renewals per
year, less than two facilities would require an antidegradation
analysis each year.
Next, EPA estimated the costs of preparing an antidegradation
analysis to justify the need to increase discharges for these
facilities. Entities seeking an antidegradation review will incur costs
to develop financial and economic and social impact analyses, and the
State will incur costs to review the analyses and make a determination.
EPA assumed that the cost incurred by facilities in complying with the
rule is the cost of a preliminary engineering analysis, and the
subsequent financial analysis for which EPA provides guidance and a
workbook. To estimate the potential analytical costs, EPA first
calculated the average capital costs to facilities it identified as
requiring additional controls in economic analyses prepared for recent
water quality standards actions, including establishing criteria for
toxic pollutants and upgrading receiving water use classifications in
the States of Alabama, Iowa, California, and Idaho (U.S. EPA, 2001a;
2001b; 1999; and 1997). EPA's estimates of capital costs for these
facilities average $1 million for major POTWs, $230,000 for minor
POTWs, $2.4 million for major industrial facilities, and $1 million for
minor industrial facilities. Thus, preliminary engineering analysis and
financial analysis costs could range between $10,000 and $72,000 for
major facilities, and between $2,300 and $30,000 for minor facilities
(see Table IV-2). EPA did not estimate costs for installing additional
control measures or limiting increased discharges because EPA would
have to speculate on the multiple unknown factors including the type of
facility, the pollutants being discharged, the water body in question,
the requested increase in discharge, the control technologies currently
being implemented, the alternative control technlogies considered, and
the State's decision following review of the antidegradation analyses.
[[Page 58780]]
Table IV-2. Estimated Cost per Facility to Prepare Antidegradation Review
----------------------------------------------------------------------------------------------------------------
Municipal facilities (POTWs) Industrial facilities
Cost ---------------------------------------------------------------------------
Major Minor Major Minor
----------------------------------------------------------------------------------------------------------------
Installed Controls \1\.............. $1,000,000 $230,000 $2,400,000 $1,000,000
Low Estimate of Review Cost \2\--(1% 10,000 2,300 24,000 10,000
of Installed Capital Cost).........
High Estimate of Review Cost \2\-- 30,000 6,900 72,000 30,000
(3% of Installed Capital Cost).....
----------------------------------------------------------------------------------------------------------------
\1\ Average capital costs to facilities that EPA identified as requiring additional pollution controls in
analyses of recent water quality standards actions, including establishing criteria for toxic pollutants and
upgrading receiving water use classifications, in the States of Alabama, Iowa, California, and Idaho (U.S.
EPA, 2001a; 2001b; 1999; 1997).
\2\ Use of 1 and 3 percent of Installed Capital Cost based on EPA's best professional judgment.
Costs for the proposed antidegradation provision will include the
cost of the State review. EPA assumed that the State's review of the
engineering cost analysis and financial impact analysis could require
up to 24 hours, and that the notification and response to comments
activities will require an average of 100 hours. Thus, based on a
national average hourly compensation rate of $42.24 for State and local
government workers in professional speciality and technical
occupations, the average cost per review is $5,200.
C. Results
EPA estimated the potential costs associated with the temperature,
IGDO, and antidegradation provisions of the proposed rule separately.
For the temperature provision, there are 48 potentially affected
facilities. EPA estimated costs for all affected major facilities
individually, and estimated costs for affected minor facilities by
extrapolating costs from a sample. EPA estimated that the potential
total Statewide annual cost associated with proposed temperature
criteria will be approximately $198,900.
EPA estimated that the potential cost associated with the proposed
IGDO criterion is zero. This estimate is based on compliance with
current State standards.
For the antidegradation provision, EPA estimated that the potential
annual costs range from $22,500 to $50,900. This estimate is based on
combined entity and State costs for two antidegradation reviews per
year.
D. Total Statewide Costs Associated with NPDES Permitted Entities
The following table summarizes the total estimated potential
Statewide costs of today's proposed rule associated with NPDES
permitted entities.
Table IV-3. Total Estimated Annual Statewide Costs Attributable to the
Proposed Rule ($2003/yr)
------------------------------------------------------------------------
Estimated annual
Provision cost \1\
------------------------------------------------------------------------
Temperature Uses and Criteria....................... $198,900
IGDO Criteria....................................... $0
Antidegradation Procedures.......................... $22,500-50,900
Total........................................... $221,400-249,800
------------------------------------------------------------------------
\1\ Costs are annualized at 7 percent over 20 years.
EPA recognizes that the potential indirect costs to nonpoint
sources associated with the State's implementation of these proposed
water quality standards may be higher than the costs EPA has estimated
since temperature exceedences on the affected water bodies could also
result from nonpoint source activities. Major categories of sources
that may be affected by the State's implementation of this proposed
rule include forestry and agriculture, as well as dams. EPA has not
quantified these costs.
E. Small Government and Business Analysis
Today's proposed rule establishes no requirements applicable to
small entities, and so is not susceptible to regulatory flexibility
analysis as prescribed by the Regulatory Flexibility Act. EPA has
nonetheless considered the potential effects of this rule on small
entities to the extent that it can, and has included that analysis in
the administrative record of this rulemaking. EPA evaluated the
potential economic impacts for the facilities that discharge to waters
of the State of Oregon and used this information to develop the cost
estimate for the proposed rule. EPA estimates that, depending on
Oregon's implementation, as many as 128 small municipal entities and 85
business entities could be affected by one or more provisions of the
proposed rule. Data are not available to determine if those 85
businesses potentially affected by the proposed rule would be
classified as small, or what percent of revenues the estimated costs
would represent. Nonetheless, EPA's analysis indicates that, depending
on Oregon's implementation, only 29 small municipal entities and 13
business entities could incur costs under the temperature provision,
and only 1 to 2 small municipal or business entities could incur
antidegradation costs in an average year.
EPA calculated the ratio of potential compliance costs to estimated
revenues for the small municipalities using the annualized facility-
specific cost estimates described above, actual municipal revenues for
facilities potentially affected by the temperature provision, and
estimates of annual municipal revenues for facilities affected by other
provisions. The estimates are based on 2002 municipal population data
and a mean per capita municipal revenue estimate of $860 that EPA
derived from the municipalities potentially affected by the temperature
provision.
Based on its estimated costs of the proposed rule, and possible
Oregon implementation, EPA observed that three small municipal entities
could incur costs that equal or exceed 1 percent of revenues. For two
of these entities, costs may equal or exceed 3 percent of revenues (the
ratios are 4.5 percent and 8.3 percent).
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Background
Data and information may become available after the date of this
rulemaking that will be material to water quality standards for Oregon.
There are several mechanisms available to ensure that the water quality
standards and their implementing mechanisms appropriately take into
account such new information. These
[[Page 58781]]
mechanisms are described in sections B through E below.
The State should be aware, however, that EPA considers designated
use changes and site-specific criteria to be modifications to the
State's water quality standards. Federal regulations at 40 CFR
122.44(d)(1) require that NPDES permits include limitations necessary
to achieve water quality standards adopted under section 303 of the
CWA. Therefore, a designated use change or a site-specific criterion
cannot be the basis for NPDES permit limitations until the State has
adopted it as part of its water quality standards, has submitted it to
EPA, and EPA has approved it. See 40 CFR 131.21(c) and (d). EPA would
also need to withdraw any corresponding Federal use designation or
criteria. As with any other revision to the State's water quality
standards, EPA will review these revisions to determine whether they
are scientifically-defensible in accordance with 40 CFR
131.11(b)(1)(iii), or meet the requirements of 40 CFR 131.10(g), as
applicable. EPA will also consider whether the appropriate procedural
requirements have been met, such as public participation and
certification by the appropriate legal authority within the State.
While 40 CFR 131.13 allows States to adopt variances for State-
adopted water quality standards, States do not have authority to change
Federal regulations. Thus, State procedures may not be used to modify
Federally-promulgated water quality standards. Consequently, EPA has
included in today's proposed rule a Federal variance provision allowing
the Region 10 Administrator to grant water quality standards variances
where a person submits data indicating that an EPA-designated use is
not attainable for any of the reasons in 40 CFR 131.10(g). This process
is discussed in greater detail in section V.C.
B. Process for Federal Agencies Responsible for Federally Owned or
Operated Dams To Request EPA Modify Water Quality Standards
The process EPA used to propose designations for the salmonid uses
and setting the numeric criteria described above utilized the best
scientifically credible data available to date on the water quality
requirements of various life stages of salmonids. However, this data
did not include the type of data that is generally considered in a
waterbody-specific use attainability analysis. EPA recognizes that new
and/or more accurate data may become available that would support
changes to the standards on a particular water body, including data and
information regarding the attainability of EPA's proposed use
designations for specific waters. In the course of developing this
proposal, EPA was approached by several Federal agencies that own or
operate Federal dams with questions about the information requirements
and the process for incorporating data on use attainability into the
process for determining designated uses proposed by EPA in this rule.
Specifically, these agencies indicated that they may submit information
involving Federal dams during the public comment period for this rule
or after promulgation. Also, they sought to better understand the
information needs and process EPA would follow in considering a change
in a designated use for water bodies in Oregon where Federal dams are
operating.
During the public comment period, EPA will review and consider the
information and the need for changes in the standards prior to
promulgation. EPA recognizes that the existence of Federally-owned or
operated dams in a watershed may alter the thermal regime of the
associated stream system, and that even after all feasible and
practicable measures to reduce thermal impacts are implemented, in some
cases, attainment of certain water quality standards for temperature
may not be feasible. Water quality standards should be feasibly
attainable given the existence and operation of these Federally owned
or operated dams. Feasibility should include consideration of whether
there are reasonable alternative operations, structural modifications,
or maintenance approaches a Federally-owned or operated dam could
implement and still fulfill its authorized purpose. In order to be
responsive to the questions raised about how EPA would handle such
information after the close of the comment period and after
promulgation, EPA is proposing in this rule EPA's preferred process for
Federal agencies that own or operate dams to petition EPA to revise
standards for water bodies covered by this rule.
EPA is mindful that the time constraints under which EPA must take
final action on WQS by March 2, 2004, will, no doubt, limit the
opportunities for Federal agencies which own or operate dams to develop
and provide information to EPA and for EPA to fully consider any such
information prior to the deadline for taking final action. Ideally,
such information would be considered up-front in designating uses and
establishing water quality criteria. In reality, precise information
may not be available in advance because of lack of data on natural
variability, varying weather and flow conditions and the difficulty in
predicting the impacts on water quality of feasible management
measures. Therefore, EPA is proposing to establish within the rule a
process by which Federal agencies that own or operate dams may present
information regarding the effect of the presence and operation of
specific dams on the attainability of uses that EPA promulgates for
specific waters, and petition EPA to amend standards if EPA, in
coordination with the regulated agency, determines the uses are not
attainable.
EPA is including this provision for those Federally-owned or
operated dams because EPA believes it is important to ensure that
designated uses properly account for the presence of dams, whose
purposes include, but are not limited to, flood control, irrigation,
navigation, and power generation that Congress has specifically
authorized. EPA wants to ensure that the use designations that it
adopts under the CWA for waters in Oregon fully consider any available
information regarding the effects of dams that have been specifically
authorized by Congress to be constructed and operated on those same
waters. A clear process in the rule for these Congressionally-
authorized dams will allow EPA to address expeditiously a request from
another Federal agency regarding modification of a promulgated use
designation based on the effects of the presence and operation of a
particular dam.
EPA's current WQS regulations at 40 CFR 131.10(g) list six factors
that may be used as a basis for removing a designated use that is not
an existing use if it can be demonstrated that attaining the designated
use is not feasible because of one of those six factors. One of those
factors specifically relates to dams. 40 CFR 131.10(g)(4) provides that
a designated use may be removed if ``dams * * * preclude the attainment
of the use, and it is not feasible to restore the water body to its
original condition or to operate [the dam] in a way that would result
in attainment of the use.'' EPA believes that it is important to
establish a process in this regulation to clarify how a Federal agency
that owns or operates a Federal dam may present information to EPA if
the Federal agency believes that a standard promulgated as a result of
this rulemaking is not attainable due to the presence and operation of
a Congressionally-authorized dam and it is not feasible to operate the
dam in a way that would result in attainment of the use.
[[Page 58782]]
It should be noted that EPA's current regulations also provide that
at a minimum uses are deemed attainable if they can be achieved by the
application of technology-based effluent limitations on point source
dischargers required under CWA section 301(b) and 306 and cost-
effective and reasonable best management practices for nonpoint source
control. 40 CFR 131.10(d) and (h). Pursuant to this regulation, EPA
would take into consideration the controls being implemented by other
sources on a specific waterbody or segment in determining the
attainability of any use.
Federal Agency Submission to EPA
In proposed 40 CFR 131.39(g), EPA provides a process by which a
Federal agency responsible for a Federally-owned or operated dam may
petition EPA to revise a water quality standard.
Federal Agency Documentation
First, proposed 40 CFR 131.39(g)(1) provides that the petition must
be based on a demonstration that the operation of the dam precludes the
attainment of the use, that reasonable alternatives are not feasible to
restore the water to its original condition, and, that there are no
feasible and practicable changes to the operation, maintenance or
structure of the dam, consistent with the purposes for which it was
authorized by Congress, that can be implemented that would result in
attainment of the water's designated use. This language approximates
the language in EPA's current regulation at 40 CFR 131.10(g)(4). As
discussed below, in response to a petition, EPA will conduct a use
attainability analysis (UAA) and determine whether the promulgated use
is attainable. The information provided by the Federal agency with the
petition will be critical to EPA's decision.
EPA expects that this demonstration would include a description of
the current function and purpose of the dam (and how well the dam is
performing its intended function). Further, EPA expects that this
demonstration will include a discussion of potential changes in
operation or maintenance of the dam and potential structural
modifications, accompanied by results of trial runs where practicable,
an engineering analysis, and results of modeling. EPA also expects that
the demonstration would show how much improvement towards attainment of
the standard could be expected from feasible and practicable
alterations. This information would be relevant to EPA should it decide
to revise the standard. Federal agencies that own or operate dams in
Oregon must provide EPA with the following information as specified in
today's proposed rule at 40 CFR 131.39(g)(2):
(1) The current purpose and function of the dam including
information on how well the dam is performing in meeting the
established purpose and function;
(2) Any feasible, practicable alternatives to current operation and
maintenance of the dam that could improve water quality, including
coordination of operations between dams;
(3) Any feasible, practicable structural modifications to the dam
that could improve water quality; and
(4) Any relevant studies of the above factors.
In addition, Federal agencies that own or operate dams in Oregon
are encouraged to consider and submit any results from the following
analyses to expedite EPA's use attainability determination:
[sbull] With regard to the analysis of any feasible, practicable
alternatives to current operation and maintenance of the dam
[sbull] Have alternative methods of operating turbines been
utilized or explored to encourage better mixing where there is a
horizontally- or vertically-stratified forebay?
[sbull] Have modifications to flood control rule curves been used
or explored to allow additional flows in the summer months without
impacting refill?
[sbull] Have modifications to upper reservoir refill probabilities
been used or explored to allow additional flows in the summer months?
[sbull] Have reductions in the cross-section areas of the water
columns behind the dams been utilized or explored? [Such reductions
could, in turn, reduce the resident time for water particles, which
reduces exposure times and surface area, which also reduces exposure
history. This is related to increasing velocity, which can be done
either by increasing flows, or decreasing area. Q(flow) = V(velocity) x
A(area)]
[sbull] With regard to the analysis of any feasible, practicable
structural modifications to the dam, have low level outlet controls
been used or explored to allow selective withdrawals resulting in
temperature improvements in the waterbody?
Federal Agency Public Process
Second, proposed 40 CFR 131.39(g)(1)(iii) provides that the
responsible Federal agency provide an opportunity for the affected
jurisdictions and public to comment on a draft of the agency's
demonstration and to submit any additional information or analyses
(e.g., analyses of how trading could improve water quality) before it
is submitted to EPA. EPA expects that the Federal agency would take
these comments into consideration in preparing a final demonstration
that it will submit to EPA in support of its petition to revise one or
more water quality standards. The proposed rule would also require that
the Federal agency submit to EPA the Federal agency's response to the
comments that the agency received during its public comment process.
EPA's Process for Responding to Petitions
Once the complete petition is submitted to EPA, 40 CFR 131.39(g)(3)
of the proposed rule would provide that EPA will conduct a UAA,
determine if a change in water quality standards is appropriate, and
respond to the petitioning agency within nine months. In making such a
determination, EPA will carefully consider all of the information
provided by the Federal agency and any comments by the affected
jurisdictions and public. 40 CFR 131.39(g)(4) would provide that if EPA
determines after developing a UAA that the promulgated standards should
be revised, EPA will propose to amend the promulgated standards through
a Federal rulemaking and take final action within 15 months. EPA may
also extend either of these deadlines if a large number of petitions
are received during this time. If EPA determines that the standards do
not need to be revised, proposed 40 CFR 131.39(g)(5) provides that EPA
will respond to the petition by providing its reasons for not proposing
to revise the standards.
If EPA determines that a use revision is appropriate and the use
revision may affect threatened or endangered species, EPA would need to
consult with NOAA Fisheries and/or FWS under section 7 of the ESA. EPA
is consulting with the Services regarding the promulgation of today's
rule. EPA also consults with affected Tribes if designating a use that
requires less stringent criteria.
Federal agencies that own or operate dams have also expressed
concern over the status and potential legal vulnerability of dams
during the period that EPA is considering a petition submitted under
this provision. EPA requests comment on how it might address this
concern in the rule.
Availability of the Petition Process to Entities Besides Federally-
Owned or Operated Dams
Of course, any person may petition EPA to revise a water quality
standard that EPA promulgates. Any of the six
[[Page 58783]]
factors at 40 CFR 131.10(g) may serve as the basis for removing a
designated use as long as it is demonstrated that it is not feasible to
attain the use. As discussed above, EPA is proposing to include
specific provisions in this rule related to the condition regarding
dams in 40 CFR 131.10(g)(4) to address Federally-owned or operated dams
in recognition of the specific congressional authorization for the
construction and operation of such dams. It was recognized that the
tight deadlines under which EPA must propose and promulgate water
quality standards for temperature in Oregon waters may not provide
adequate time for the other Federal agencies to gather information
related to the possible effects of Federally-owned or operated dams on
the attainability of EPA's water quality standards or for EPA to fully
evaluate any information that may be generated. Therefore, EPA is
proposing to set out a process, as previously described, by which the
submission of such information by another Federal agency and
consideration by EPA would take place.
C. Variances
Water quality standards variances are a mechanism that can
temporarily modify water quality standards. Today's rule contains a
Federal variance procedure for the designated uses being proposed
today. However, the procedures described later in this section can also
be used by the State to develop variances for State-adopted water
quality standards.
EPA believes variances are particularly suitable when the cause of
nonattainment is discharger-specific and it appears that the designated
use in question will eventually be attained or demonstrated to be
nonattainable. EPA has approved the granting of water quality standards
variances to NPDES permitted entities by States in circumstances that
would otherwise justify changing a use designation on the grounds of
unattainability (i.e., one or more of the six circumstances contained
in 40 CFR 131.10(g) is met). In contrast to a change in standards that
removes a use designation for a water body, a water quality standards
variance applies only to the NPDES permitted discharger to whom it is
granted and only to the pollutant parameter(s) upon which the finding
of unattainability is based, and only for a limited period of time. The
underlying standard remains in effect for all other CWA purposes.
The practical effect of such a variance is to allow an NPDES permit
to be written using less stringent criteria, while encouraging ultimate
attainment of the underlying standard. A water quality standards
variance provides a mechanism for assuring compliance with sections
301(b)(1)(C) and 402(a)(1) of the CWA, while granting temporary relief
to point source dischargers.
While 40 CFR 131.13 allows States to adopt variance procedures for
State-adopted water quality standards, because States cannot amend
Federal law, such State procedures may not be used to grant variances
for Federally-adopted standards. EPA believes that it is appropriate to
provide comparable Federal procedures here. Through today's proposed
rule, the Region 10 Regional Administrator may grant water quality
standards variances where a person submits data indicating that an EPA-
designated use proposed at 40 CFR 131.39(b) is not attainable for any
of the reasons at 40 CFR 131.10(g).
Today's proposed rule spells out the process for applying for and
granting such variances. Authorizing the Regional Administrator to
grant variances should expedite the processing of variance requests.
That process is contained in proposed 40 CFR 131.39(h) of today's rule.
EPA also proposes that the Regional Administrator provide public notice
of the proposed variance and provide an opportunity for public comment.
EPA understands that variance-related issues can often arise in the
context of permit issuance. EPA Region 10 will seek to work closely
with the State permitting authorities to ensure that variance requests
will be considered in tandem with the State NPDES permitting process.
The variance procedures proposed today requires an applicant for a
water quality standards variance to submit a request to the Regional
Administrator (or his/her delegatee) with supporting information. Under
this rule, as in the national program, the burden is on the applicant
to demonstrate to EPA's satisfaction that the designated use is
unattainable for one of the reasons specified in 40 CFR 131.10(g). EPA
believes that because a variance results in a temporary change to the
designated use, the demonstrations needed to justify a variance should
be analogous to those needed to justify removing the use entirely. A
variance may not be granted if the use can be attained, at a minimum,
by all dischargers implementing effluent limitations required under
sections 301(b) and 306 of the CWA and the nonpoint sources
implementing reasonable best management practices for nonpoint source
control as required by the State. In addition, a variance may not be
granted if it would likely jeopardize the continued existence of any
threatened or endangered species listed under section 4 of the ESA or
result in the destruction or adverse modification of such species'
critical habitat.
Under this rule, a variance may not exceed three years or the term
of the NPDES permit, whichever is less. A variance may be renewed if
the permittee again demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if EPA finds that the
conditions of 40 CFR 131.10(g) are not met.
D. Heat Load and Thermal Plume Provisions
1. Heat Load Limit
Questions often arise regarding how to interpret water quality
standards when implementing the standards under the CWA. EPA believes
that with respect to this proposed rule, questions may arise during
NPDES permitting or TMDL establishment as to whether the water quality
temperature criteria proposed here would be attained in impaired waters
by authorizing effluent limitations or establishing waste load
allocations or load allocations that allow an insignificant addition of
heat to impaired waters. In today's proposal, EPA is including a
provision that would allow for insignificant additions of heat by
anthropogenic sources to water bodies or segments that exceed the
applicable temperature criterion. While this provision is not a water
quality standard under CWA section 303(c), this provision will assist
regulatory authorities in carrying out their responsibilities under
sections 303(d) and 402 of the CWA. Specifically, EPA proposes that the
addition of heat from anthropogenic sources will be determined to be
insignificant if all such additions cumulatively, at the point of
maximum impact, cause an instream temperature increase of 0.3[deg]C/
0.5[deg]F or less above the otherwise applicable criterion. In
addition, no single point source may cause, by itself, an instream
temperature increase of 0.3[deg]C/0.5[deg]F or more above the otherwise
applicable criterion assuming complete mixing with 25 percent of the
river flow.
There are several approaches that the State may take to assure that
these conditions are met. For example, to calculate the impact of
single sources, the State may use a simple energy balance equation to
calculate a point source effluent limitation that would meet the heat
load limit, assuming the upstream temperature is at the otherwise
applicable criterion, and calculating an end-of-pipe effluent limit
that would result in an 0.3[deg]C/0.5[deg]F
[[Page 58784]]
increase above the applicable criterion after complete mixing of the
effluent with 25 percent of the river flow. To calculate the impact of
multiple sources, the State may conduct a modeling evaluation.
EPA believes that this provision will continue to protect the uses
proposed to be designated by this rule. Allowing sources to no more
than an increase of 0.3[deg]C/0.5[deg]F is not significant in view of
the accuracy of temperature measurement instruments and the variability
of monitoring field protocol techniques. (``Water Quality Monitoring
Technical Guide Book,'' Oregon Plan for Salmon and Watersheds, July
1999, pp 6-3; ``Monitoring Guidelines to Evaluate Effects of Forestry
Activities on Streams in the Pacific Northwest and Alaska,'' EPA/910/9-
91-001, May 1991. pp 73-76). Furthermore, the scientific studies
assessing the effects of temperature on salmon species which form the
basis for the Regional Temperature Guidance and this rulemaking, are at
a level of resolution of 1[deg]C/2[deg]F (or more). For the previously
stated reasons, allowing an increase of 0.3[deg]C/0.5[deg]F will
protect the uses proposed in this rule.
Even though EPA believes this incremental heating of 0.3[deg]C/
0.5[deg]F or less above the otherwise applicable criterion will have no
adverse effect on the designated uses, even in impaired waters, such
incremental heating would not be allowed by the water quality standards
without this provision. EPA believes, however, that it is important for
the water quality standards to allow such insignificant heat additions,
as long as they meet the thermal plume provisions in proposed 40 CFR
131.39(e)(2), because of their insignificant adverse effect on the
designated uses, and the adverse economic and/or environmental impacts
of either prohibiting such discharges or requiring that they be cooled
prior to discharge.
2. Thermal Plume
EPA's regulation at 40 CFR 131.13 recognizes that States have the
discretion to adopt regulations authorizing mixing zones around point
source outfalls, which are limited zones in which otherwise applicable
criteria may be exceeded, subject to conditions that assure the
protection of the designated use in the waterbody as a whole. In the
case of temperature, areas surrounding point source outfalls could
experience ``thermal plumes'' in which water temperatures exceed the
otherwise applicable temperature criteria. In this rule, EPA proposes
conditions on such thermal plumes to protect the designated uses by
preventing instantaneous lethality, thermal shock, migration blockage,
or adverse impact to salmon and trout spawning areas in order to
protect the designated uses proposed in this rule.
EPA is proposing that for any permitted point source discharge of
heat that the discharge meet the conditions described in proposed 40
CFR 131.39(e)(2). These provisions describe conditions that must be
avoided in order to protect salmonids from adverse impacts. As such,
EPA is proposing that these provisions apply to all NPDES-permitted
dischargers, regardless of whether the permittee is discharging to a
water body that is attaining or not attaining its temperature water
quality criterion. In the former case (i.e., where a water body is
meeting its water quality standards), these provisions would work in
conjunction with the State's existing mixing zone policy contained in
its regulation to govern the calculation of effluent limitations for
point sources.
The proposed regulation is designed to ensure that thermal plumes
from point sources do not cause instantaneous lethal temperatures;
thermal shock; migration blockage; adverse impact on spawning, egg
incubation, and fry emergence areas; or the loss of localized cold
water refugia. Based on the scientific literature's finding that
certain conditions may cause adverse impacts in salmonids, EPA believes
these provisions are appropriate to protect these species from
conditions that may exist due to a point source discharge. The
following paragraphs summarize the scientific literature and how the
findings relate to EPA's proposed regulations.
[sbull] Exposures of less than ten seconds at 32[deg]C/89.6[deg]F
can cause instantaneous lethality. (Washington Department of Ecology,
December 2002, ``Evaluating Standards for Protection of Aquatic Life in
Washington's Surface Water Quality Standards, Temperature Criteria,
Draft Discussion Paper and Literature Summary,'' pp. 105-108).
Therefore, EPA has proposed that the maximum temperature within the
plume after two seconds of travel from the point of discharge does not
exceed 32[deg]C/90[deg]F.
[sbull] Thermal shock, which leads to increased predation, can
occur when salmon and trout exposed to near optimal temperatures (e.g.,
15[deg]C/58[deg]F) experience a sudden temperature increase to 26-
30[deg]C/79-86[deg]F for a short period of time. (Coutant, Charles,
1973, Effect of thermal shock on vulnerability of juvenile salmonids to
predation, J. Fish. Res. Board Can. 30(7):965-973.). Therefore, EPA is
proposing that thermal plumes be conditioned to limit the cross-
sectional area of a river that exceeds 25[deg]C/77[deg]F to five
percent of the river.
[sbull] Adult migration blockage conditions can occur at 21[deg]C/
70[deg]F. See Table III-1. Therefore, EPA is proposing that the cross-
sectional area of a river at or above 21[deg]C/70[deg]F be limited to
less than 25 percent or, if upstream temperature exceeds 21[deg]C/
70[deg]F, the thermal plume be limited such that 75 percent of the
cross-sectional area of the river has less than a de minimis (e.g.,
0.3[deg]C/[deg]0.5F) temperature increase.
Adverse impacts on salmon and trout spawning, egg incubation, and
fry emergence can occur when the temperatures exceed 13[deg]C/55[deg]F.
See Table III-1. Therefore, EPA is proposing that the thermal plume be
limited so that temperatures exceeding 13[deg]C/55[deg]F do not occur
in the vicinity of active spawning and egg incubation areas, or that
the plume does not cause more than a de minimis increase in the river
temperature in these areas.
Determining whether or not a preliminary effluent limitation will
result in localized impacts from the thermal plume can be achieved
through plume modeling. The physical characteristics of the thermal
plume (e.g., a three-dimensional profile of temperatures) can be
estimated using a near-field dilution model and adequate input data to
run the model (e.g., river and effluent temperatures and flows). If the
model indicates that the preliminary effluent limitation is likely to
result in any of the localized adverse impacts described above, the
preliminary effluent limit must be lowered to ensure that such impacts
are avoided or minimized.
E. EPA's Basis for Allowing Flexibility Due to Unusually Warm Weather
Conditions
EPA is proposing that a waterbody shall not be determined to be a
water quality-limited segment for CWA section 303(d) listing purposes
if the maximum 7DADM temperature for the year with the second highest
maximum 7DADM from a complete data record of 10 years is at or below
the applicable criterion. EPA recognizes that historically, there were
years of drought and unusually high air temperatures. When those
conditions occurred, water temperatures were also elevated. Further,
EPA believes it is reasonable for a State or Tribe to decide not to
apply the numeric temperature criteria during unusually warm conditions
for purposes of determining if a waterbody is attaining criteria (i.e.,
for the purposes of making decisions under CWA section 303(d) or
305(b)). EPA believes such a provision is justified because unusually
[[Page 58785]]
warm annual peaks in water temperature typically caused by drought
conditions are a natural component of the environment and that these
infrequent conditions should not drive attainment determinations.
Salmonids may experience some adverse effects during these periods, but
by definition, they would be infrequent. It is important to note,
however, that NPDES-permitted facilities would continue to be subject
to the same temperature effluent limits they would be subject to during
normal temperature periods, because they should not be able to
discharge more heat than they would otherwise be authorized to
discharge simply due to a natural event.
Even when accounting for unusually warm conditions in temperature
standards, attainment determinations should be based on all climatic
conditions except for those unusually warm and rare conditions in order
to protect the salmonid designated uses. Thus, given that river
temperatures exhibit year-to-year variation in their maximum 7DADM
values, the average maximum 7DADM value from a yearly series, as a
statistical matter, would need to be lower than the numeric criteria in
order to meet the criteria nine out of ten years. Therefore, in most
years, the maximum 7DADM temperature would also need to be lower than
the numeric criteria in order to meet the criteria in the warm years.
EPA took this into consideration when it formulated its proposed
numeric criteria.
F. Total Maximum Daily Loads and Impaired Water Listings
A TMDL is a tool created by the CWA that expresses the total amount
of a given pollutant that a particular water body may receive and still
achieve applicable water quality standards. Section 303(d) of the CWA
and its implementing regulations at 40 CFR part 130 establish the
requirements for TMDLs. The TMDL process can broaden the opportunity
for public participation, expedite water quality-based NPDES
permitting, and lead to technically-sound and legally-defensible
decisions for attaining and maintaining water quality standards. In
addition, the TMDL process provides a mechanism for integrating the
management of both point and nonpoint pollution sources that together
may contribute to a water body's impairment. (See Guidance for Water
Quality-Based Decisions: The TMDL Process, EPA 440-4-91-001, April
1991.)
If Oregon lists waters subject to today's proposed rule on its CWA
section 303(d) list(s) because data or information indicate that water
quality standards have not been achieved, EPA recognizes that this
listing decision does not mean that a TMDL will immediately be
developed. Rather, CWA section 303(d)(1) specifically provides States
with the discretion to establish a priority ranking for TMDL
development for listed waters, and then to establish TMDLs in
accordance with that ranking. EPA notes that even if Oregon establishes
a TMDL for a water body designated today for salmonid lifestage uses,
the question of implementing the TMDL with respect to nonpoint sources
and point sources not required to obtain an NPDES permit is entirely a
matter of State law.
As discussed elsewhere in today's proposal, EPA strongly encourages
the State of Oregon to adopt the appropriate uses for all of the waters
subject to this rulemaking. Once EPA approves the State's adoption of a
new use designation for a water body, and withdraws that water body
from the Federal regulation, the State's use designation will be the
applicable use for that water body for purposes of compiling the CWA
section 303(d) list. Oregon will be required to list that water body
under CWA section 303(d) if data and information show that the use is
impaired or the water body exceeds the applicable water quality
criteria for temperature or IGDO for the protection of the associated
salmonid uses.
For waters that have salmonid use designations (either Federal or
State) at the time Oregon assembles its CWA section 303(d) list(s), EPA
notes that Oregon need not include a water on its list(s) if it lacks
data and information to determine whether the use is being attained, or
if the data and information it has is insufficient to make that
determination. See 40 CFR 130.7(b)(5); ``2004 Integrated Water Quality
Monitoring and Assessment Report Guidance.'' While EPA expects Oregon
to follow the requirements, if any, of its assessment and listing
methodology, EPA also recognizes that it is possible that at the time
Oregon compiles its 2004 CWA section 303(d) list, it will not have data
or information for all of the waters designated by this rule for
salmonid life stage uses. Therefore, it is possible that many of these
waters will not appear on Oregon's next CWA section 303(d) list(s).
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Executive 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, 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 of entitlements, 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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to E.O. 12866 review.
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et. seq. It does not include any information collection, reporting
or recordkeeping requirements. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information
[[Page 58786]]
unless it displays a currently valid OMB control number. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C.
601 et. seq.), generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, a small entity is defined as: (1) A small business
according to RFA default definitions for small business (based on SBA
size standards); (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this rule will not have a significant
economic impact on a substantial number of small entities. This
proposed rule would not impose any requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's proposed rule establishes no requirements applicable to small
entities, and so is not susceptible to regulatory flexibility analysis
as prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is
necessary when an agency determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule,'' United Distribution
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985) (emphasis added by United Distribution court).)
Under the CWA water quality standards program, States must adopt
water quality standards for their waters and must submit those water
quality standards to EPA for approval; if the Agency disapproves a
State standard and the State does not adopt appropriate revisions to
address EPA's disapproval, EPA must promulgate standards consistent
with the statutory requirements. EPA also has the authority to
promulgate water quality standards in any case where the Administrator
determines that a new or revised standard is necessary to meet the
requirements of the Act. These State standards (or EPA-promulgated
standards) are implemented through various water quality control
programs including the NPDES program, which limits discharges to
navigable waters except in compliance with an NPDES permit. The CWA
requires that all NPDES permits include any limits on discharges that
are necessary to meet applicable water quality standards.
Thus, under the CWA, EPA's promulgation of water quality standards
establishes standards that the State implements through the NPDES
permit process. The State has discretion in developing discharge limits
as needed to meet the standards. While the State's implementation of
Federally promulgated water quality standards may result in new or
revised discharge limits being placed on small entities, the standards
themselves do not apply to any discharger, including small entities.
Today's proposed rule, as explained earlier, does not itself
establish any requirements that are applicable to small entities. As a
result of this action, the State of Oregon will need to ensure that
permits it issues include any limitations on discharges necessary to
comply with the standards established in this rule. In doing so, the
State will have a number of choices associated with permit writing.
While Oregon's implementation of the rule may ultimately result in some
new or revised permit conditions for some dischargers, including small
entities, EPA's action today does not impose any of these as yet
unknown requirements on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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 of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
Tribal governments or the private sector. The rule imposes no
enforceable duty on the State or any local or Tribal government or the
private sector; rather, this rule promulgates criteria and designated
uses for certain waterbodies in Oregon, which constitute water quality
standards for those waterbodies. The State may use these resulting
water quality standards in implementing its water quality control
programs. Today's proposed rule does not regulate or affect any entity
and, therefore, is not subject to the requirements of sections 202 and
205 of the UMRA.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The rule imposes no enforceable requirements on any party,
including small governments. Thus, this proposed rule is not subject to
the requirements of section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State
[[Page 58787]]
and local officials in the development of regulatory policies that have
Federalism implications.'' ``Policies that have Federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
This proposed rule does not have Federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The rule will not affect the
nature of the relationship between EPA and States generally, for the
rule only applies to waterbodies in Oregon. Further, the rule will not
substantially affect the relationship of EPA and the State of Oregon,
or the distribution of power or responsibilities between EPA and the
various levels of government. The proposed rule will not alter the
State's authority to issue NPDES permits or the State's considerable
discretion in implementing these water quality standards. Finally, this
proposed rule will not preclude Oregon from adopting water quality
standards that meet the requirements of the CWA. Thus, Executive Order
13132 does not apply to this proposed rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA worked closely with the State of Oregon in developing it. In
the spirit of Executive Order 13132, and consistent with EPA policy to
promote communications between the EPA and State and local governments,
EPA specifically solicits comments on this proposed rule from State and
local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes as specified in Executive Order 13175.
Today's rule proposes water quality standards for waters in the State
of Oregon. These standards do not establish any requirements that are
directly applicable to any entity, including Tribes. In addition, this
proposed rule expressly excludes waters in Indian country. Thus,
Executive Order 13175 does not apply to this rule.
Although Executive Order 13175 does not apply to this rule, EPA
sent letters to 12 potentially interested tribal governments and held a
conference call to provide additional information, answer questions,
and initiate a dialogue regarding any issues or concerns the Tribes may
have regarding this proposed rule. EPA expects to continue this
dialogue on its proposal to establish water quality standards in Oregon
to ensure that EPA's final action takes Tribal government concerns into
account. In the spirit of Executive Order 13175 and consistent with EPA
policies to promote coordination and consultation with tribal
governments, EPA specifically solicits additional comment on this
proposed rule from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under E.O. 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in E.O. 12866, and because
it does not concern an environmental health or safety risk that the
Agency has reason to believe may have a disproportionate effect on
children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995
(NTTAA) Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA
to use voluntary consensus standards in its regulatory activities
unless to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through the Office of Management and Budget, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards.
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
EPA welcomes comments on this aspect of the rulemaking and invites the
public to identify potentially applicable voluntary consensus standards
and to explain why such standards should be used in this regulation.
List of Subjects in 40 CFR Part 131
Environmental protection, Indian lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: October 1, 2003.
Marianne Lamont Horinko,
Acting Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 131 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 131.39 is added to read as follows:
[[Page 58788]]
Sec. 131.39 Oregon.
(a) Definitions.
(1) Natural condition means water temperatures that would exist in
the absence of human activities that alter water temperature.
(2) Seven-day average of daily maximum, or 7DADM, means the average
of daily maximum temperatures over a seven-day period.
(3) Cold water refugia means waters, defined either spatially or
temporally, that are more than 2[deg]C/4[deg]F colder than the daily
maximum temperature at the nearest location in the main river channel.
(b) Designated Uses for Salmonids. The maps at http://www.epa.gov/r10earth/federaloregonwqs.htm
identify the salmonid designated uses
for: bull trout juvenile rearing and spawning, salmon and steelhead
core juvenile rearing, salmon and trout juvenile rearing and migration,
salmon and steelhead migration, and salmon and steelhead spawning
through fry emergence in each of the indicated water bodies or
segments. The salmon and steelhead spawning through fry emergence use
is designated only for the time period indicated in the map legends
(fall through either May 15 or June 15); all other uses apply
throughout the year. [You may also view a copy of the maps at EPA
Region 10's Oregon Operations Office, 811 SW. 6th Avenue, Portland,
Oregon, 97204.] Where EPA designates bull trout rearing and spawning,
EPA also designates salmon and steelhead core juvenile rearing. Where
EPA designates salmon and steelhead core juvenile rearing, EPA also
designates salmon and trout juvenile rearing and migration. Where EPA
designates salmon and trout juvenile rearing and migration, EPA also
designates salmon and steelhead migration.
(c) Temperature Criteria for Salmonid Uses. The following water
quality criteria for temperature, with temperatures expressed as a
7DADM, apply in water bodies or segments designated for the following
uses, except as provided in paragraph (d) of this section:
(1) Bull Trout Juvenile Rearing and Spawning: 12[deg]C/54[deg]F.
(2) Salmon and Steelhead Core Juvenile Rearing: 16[deg]C/61[deg]F.
(3) Salmon and Trout Juvenile Rearing and Migration: 18[deg]C/
64[deg]F.
(4) Salmon and Steelhead Migration: 20[deg]C/68[deg]F. In addition,
the river must have well-distributed cold water refugia. Well-
distributed cold water refugia means cold water refugia that are
sufficiently distributed so as to allow salmon and steelhead to migrate
through a river segment or rear without significant adverse effects
from high water temperatures.
(5) Salmon and Steelhead Spawning through Fry Emergence: 13[deg]C/
55[deg]F.
(d) Alternative Temperature Criteria for Salmonid Uses. The
following criteria, where applicable, apply instead of the criteria
provided in paragraph (c) of this section:
(1) Natural Conditions. Where EPA identifies a water body or
segment where the water temperature under natural conditions exceeds
the applicable criterion set forth in paragraph (c) of this section,
the natural condition so estimated shall be the applicable water
quality criterion. This determination must be based on a
scientifically-defensible method utilizing best available data. Where
the natural temperature conditions so estimated exceed 20[deg]C/
68[deg]F, the river must have well-distributed cold water refugia.
Well-distributed cold water refugia means cold water refugia that are
sufficiently distributed so as to allow salmon and steelhead to migrate
through a river segment or rear without significant adverse effects
from high water temperatures.
(2) Existing Cold Waters. In a water body or segment in which
salmonid species that are listed as threatened or endangered under the
Endangered Species Act are present, and where available data and
information within the 10-year period preceeding the date of
publication of the final rule in the Federal Register reflect the
temperature in the water body and demonstrate that the warmest summer
maximum 7DADM temperature is colder than the applicable numeric
criterion. In these cases, the summer maximum 7DADM temperature shall
be the applicable water quality criterion, unless a complete data
record of 10 years is available, in which case the maximum 7DADM
temperature for the year with the second highest maximum 7DADM shall be
the applicable criterion.
(e) Temperature Standards Implementation. (1) Heat Load Limit. In
water bodies that exceed the applicable temperature criteria,
attainment determinations of these water quality standards for purposes
of NPDES permitting and TMDL establishment shall allow for
insignificant additions of heat by anthropogenic sources to water
bodies or segments that exceed the applicable temperature criteria set
forth in paragraphs (c) and (d) of this section, subject to the
conditions in paragraph (e)(2) of this section. For the purposes of
this paragraph, such additions of heat may be deemed insignificant only
if all such additions cumulatively, at the point of maximum impact,
cause the water temperature to exceed the applicable criterion by
0.3[deg]C/0.5[deg]F or less, assuming complete mixing. In addition, in
water bodies that exceed the applicable temperature criterion, no
single NPDES point source may cause, by itself, a temperature increase
of 0.3[deg]C/0.5[deg]F or more above the applicable criterion assuming
complete mixing with 25 percent of the river flow.
(2) Thermal Plume Impacts. In addition to otherwise applicable
numeric or narrative criteria, the following conditions may not be
exceeded as a result of a discharge from a NPDES point source
discharge, or a combination of NPDES point sources discharges:
(i) Lethality. The maximum temperature within the thermal plume
caused by a point source, or a combination of point sources, may not
exceed 32[deg]C/90[deg]F after two seconds of plume travel from the
point of discharge.
(ii) Thermal Shock. No more than five percent of the cross-
sectional area of a river or creek may exceed 25[deg]C/77[deg]F.
(iii) Migration Blockage.
(A) If the temperature immediately upstream of a point source
discharge, or a combination of point source discharges, is less than
21[deg]C/70[deg]F, then no more than 25 percent of the cross-sectional
area of the receiving water may exceed 21[deg]C/70[deg]F.
(B) If the temperature immediately upstream of a point source
discharge, or a combination of point source discharges, is at or above
21[deg]C/70[deg]F, then no more than 25 percent of the cross-sectional
area of the receiving water may be more than 0.3[deg]C/0.5[deg]F warmer
than the upstream temperature.
(iv) Spawning Impacts. In active spawning or egg incubation areas:
(A) Water temperatures may not exceed 13[deg]C/55[deg]F if they
would not have done so in the absence of point source discharges; and
(B) Where water temperatures would have exceeded 13[deg]C/55[deg]F
in the absence of point source discharges, water temperatures may not
exceed 0.3[deg]C/0.5[deg]F above the temperatures they would have
achieved in the absence of point source discharges.
(v) Cold Water Refugia Impacts. A thermal plume shall not increase
the temperature of spatial cold water refugia by more than 0.3[deg]C/
0.5[deg]F.
(3) Unusually Warm Weather Conditions. A water body shall not be
water quality-limited for CWA section 303(d) listing purposes if the
maximum 7DADM temperature for the year with the second highest maximum
7DADM
[[Page 58789]]
from a complete data record of 10 years is at or below the applicable
criterion.
(f) Numeric Intergravel Dissolved Oxygen (IGDO) Criterion for
Salmonid Uses. (1) In water bodies or segments where the bull trout
juvenile rearing and spawning or salmon and steelhead spawning though
fry emergence designated use applies in the State of Oregon, and during
the applicable time periods, IGDO shall be at least 8.0 mg/L, measured
as a spatial median, except as provided in paragraph (f)(2) of this
section.
(2) Where barometric pressure, altitude, and air temperature
preclude attainment of the intergravel dissolved oxygen criterion set
forth in paragraph (f)(1) of this section, then the criterion shall be
not less than 95 percent of the maximum IGDO level attainable given the
barometric pressure, altitude, and air temperature.
(g) Process for Federal Agencies Responsible for Federally-Owned or
Operated Dams to Request that EPA Modify its Water Quality Standards
for Oregon. (1) A Federal agency responsible for a Federally-owned or
operated dam may petition EPA to revise a water quality standard in
this section. In developing and submitting the petition to EPA, the
Federal agency must ensure that:
(i) The petition includes a description of the current function and
purpose of the dam.
(ii) The petition is based on a demonstration that normal operation
of the dam precludes attainment of the use, that reasonable
alternatives are not feasible to restore the water to its original
condition, and that there are no feasible and practicable changes to
operation, maintenance or structure of the dam that can be implemented
that would result in attainment of the water's designated use.
(iii) The Federal agency provides an opportunity for affected
jurisdictions and the public to comment on a draft of the demonstration
before it is submitted to EPA. The Federal agency must provide EPA with
a response to the comments.
(2) In developing the demonstration under paragraph paragraph
(g)(1) of this section, the Federal agency must address each of the
following:
(i) The current purpose and function of the dam including
information on how well the dam is performing in meeting the
established purpose and function.
(ii) Any feasible, practicable alternatives to current operation
and maintenance of the dam that could improve water quality, including
coordination of operations between dams.
(iii) Any feasible, practicable structural modifications to the dam
that could improve water quality.
(iv) Any relevant studies of the above factors.
(3) If such a petition is submitted, EPA will conduct a use
attainability analysis (UAA) as defined in Sec. 131.3(g) and determine
within nine months of the Federal agency's submission whether a
modification to the water quality standard is justified. EPA may extend
this deadline if a large number of such petitions are submitted during
the same time period.
(4) If EPA determines that the use designation should be revised,
EPA will propose for public comment a rule to revise the applicable use
designation and take final action within 15 months of making the
determination in paragraph (g)(3) of this section.
(5) If EPA determines that the use designation should not be
revised, EPA will respond to the petition, providing EPA's reasons for
not proposing to revise the use designation.
(h) Variances. (1) The Regional Administrator, EPA Region 10, is
authorized to grant variances from the water quality standards in
paragraphs (b) through (d) and (f) of this section where the
requirements of this paragraph (h) are met. A water quality standard
variance applies only to the permittee requesting the variance, and
only to the pollutant or pollutants specified in the variance; the
underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by all dischargers implementing
effluent limitations required under sections 301(b) and 306 of the CWA
and by nonpoint sources implementing cost-effective and reasonable best
management practices required by the State; or
(ii) The variance would likely jeopardize the continued existence
of any threatened or endangered species listed under Section 4 of the
Endangered Species Act, or result in the destruction or adverse
modification of such species' critical habitat.
(3) Subject to paragraph (h)(2) of this section, a water quality
standards variance may be granted if the applicant demonstrates to EPA
that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use; or
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating State water conservation
requirements to enable uses to be met; or
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place; or
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the water body to its original condition or to operate such
modification in a way which would result in the attainment of the use;
or
(v) Physical conditions related to the natural features of the
water body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
(4) Procedures. An applicant for a water quality standards variance
shall submit a request to the Regional Administrator of EPA Region 10.
The application shall include all relevant information showing that the
requirements for a variance have been satisfied. The burden is on the
applicant to demonstrate to EPA's satisfaction that the designated use
is unattainable for one of the reasons specified in paragraph (h)(3) of
this section. If the Regional Administrator preliminarily determines
that grounds exist for granting a variance, he shall provide public
notice of the proposed variance and provide an opportunity for public
comment. Any activities required as a condition of the Regional
Administrator's granting of a variance shall be included as conditions
of the NPDES permit for the applicant. These terms and conditions shall
be incorporated into the applicant's NPDES permit through the permit
reissuance process or through a modification of the permit pursuant to
the applicable permit modification provisions of Oregon's NPDES
program.
(5) A variance may not exceed 3 years or the term of the NPDES
permit, whichever is less. A variance may be renewed if the applicant
reapplies and demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the applicant
[[Page 58790]]
did not comply with the conditions of the original variance, or
otherwise does not meet the requirements of this section.
(i) Antidegradation Implementation Methods. (1) What is an existing
use for purposes of Sec. 131.12(a)(1)? An existing use is a use
actually attained in the waterbody on or after November 28, 1975, as
defined in Sec. 131.3(e).
(2) How is Sec. 131.12(a)(1) implemented? Existing uses must be
protected when authorizing any discharge or conducting any assessment
pursuant to the Clean Water Act.
(3) What is a high quality water for purposes of Sec.
131.12(a)(2)? High quality waters are those which have water quality
that meets or is better than all applicable water quality standards,
including all water quality criteria.
(4) What does not constitute a lowering of water quality for
purposes of Sec. 131.12(a)(2)? For purposes of Sec. 131.12(a)(2),
there is no lowering of water quality in connection with:
(i) a pollutant concentration increase when there is no overall
increase in the total mass load of the pollutant on at least an annual
basis; or
(ii) a de minimis change in temperature (i.e., a 7DADM stream
temperature increase 0.3[deg]C/0.5[deg]F or less across the watershed
above an applicable temperature criteria.)
(5) What information must be considered before a lowering of water
quality is allowed under Sec. 131.12(1)(2)?
(i) No other reasonable alternatives exist except to lower water
quality.
(ii) The action is necessary and justifiable for economic and
social development benefits and outweighs the environmental costs of
lowered water quality.
(iii) All water quality standards will be met and beneficial uses
protected.
(6) What process must be followed in determining whether to allow a
lowering of water quality?
(i) In order to demonstrate the necessity and importance of the
proposed activity in a high quality water, the discharger/applicant/
source must provide the State with enough information to allow for a
financial impact analysis that assesses whether allowing an activity
that lowers water quality has socioeconomic benefits that outweigh the
environmental costs;
(ii) After the permitting authority considers whether the activity
will likely cause a lowering of water quality and whether the
discharger/applicant/source has demonstrated the necessary
justification, the permitting authority will issue a preliminary
decision/recommendation on whether to allow or deny the proposed permit
or certificate; and
(iii) This decision/recommendation will be noted prior to the
intergovermental coordination and public notice phases of the
antidegradation review.
(7) What process should be used by the State of Oregon in
identifying Outstanding Resource Waters (ORWs) for purposes of Sec.
131.12(a)(3)?
(i) The State may designate high quality waterbodies to be
classified as ORWs in order to protect the water quality parameters
that affect ecological integrity of critical habitat or special water
quality values that are vital to the unique character of those
waterbodies.
(ii) The State of Oregon will develop a screening process and
establish a list of nominated waterbodies for ORWs designation in the
Biennial Water Quality Status Assessment Report (305(b) Report). The
priority waterbodies for nomination include: those in State and
National Parks, National Wild and Scenic Rivers, State Scenic
Waterways, those in State and National Wildlife Refuges, and those in
Federally designated wilderness areas.
(iii) The State will publish a list of water bodies which are
proposed for designation as ORWs as appropriate at the time of each
triennial water quality standards review.
(iv) When designating ORWs, the State shall establish the water
quality values to be protected and provide a process for determining
what activities are allowed that would not affect the outstanding
resource values.
(8) What is the significance of an ORW designation?
(i) After the designation, any regulatory authority that is
required to follow water quality standards in authorizing an activity
shall not allow activities that may lower water quality below the level
established except on a short-term basis to respond to emergencies or
to otherwise protect human health and welfare.
(ii) [Reserved]
[FR Doc. 03-25525 Filed 10-9-03; 8:45 am]
BILLING CODE 6560-50-P