2024-27604. Proposed Consent Decree, Clean Water Act Claim

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Environmental Protection Agency

1. [EPA-HQ-OGC-2024-0531; FRL-12402-01-OGC]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed consent decree; request for public comment.

( print page 93288)

SUMMARY:

In accordance with the EPA Administrator's March 18, 2022, memorandum regarding “Consent Decrees and Settlement Agreements to resolve Environmental Claims Against the Agency,” notice is hereby given of a proposed consent decree in Ecological Rights Foundation v. EPA, et.al., Docket No. 3:24-cv-03665 (N.D. Cal.). Environmental Advocates, on behalf of the Ecological Rights Foundation, filed a complaint on June 18, 2024 and an amended complaint on September 18, 2024, in the United States District Court for the Northern District of California alleging the EPA failed to perform a non-discretionary duty under Clean Water Act (CWA) to either approve or disapprove revised water quality standards in California's amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan amendments”) within the statutory timeframes. The EPA seeks public input on a proposed consent decree prior to its final decision-making with regard to potential settlement of the litigation.

DATES:

Written comments on the proposed consent decree must be received by December 26, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0531 online at https://www.regulations.gov (EPA's preferred method). Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID number for this action. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided. For detailed instructions on sending comments, see the “Additional Information About Commenting on the Proposed Consent Decree” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Eleanor Garretson, Water Law Office, Office of General Counsel, U.S. Environmental Protection Agency; telephone: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

On August 26, 2019, California submitted the Bay-Delta Plan amendments to the EPA for review and approval of those portions of the submission that constitute new or revised water quality standards. On September 1, 2023, the EPA initiated consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service and is presently engaged in consultation on the EPA's potential action on new and revised water quality standards that EPA identifies in the Bay-Delta Plan amendments.

On April 16, 2024, Plaintiffs sent the EPA a notice of intent to sue (NOI) alleging that the EPA had failed to satisfy its mandatory duty under CWA section 303(c)(3) to either approve or disapprove revised water quality standards in California's amendments to the Bay-Delta Plan within the statutory timeframes. The Plaintiffs filed a complaint on June 18, 2024 and an amended complaint on September 18, 2024, seeking a declaratory judgment that the EPA violated the statutory deadlines and an order from the court requiring the Agency to take action to either approve or disapprove the new or revised water quality standards proposed as part of the Bay-Delta Plan amendments by a date certain.

The parties initiated settlement discussions, which produced the proposed consent decree. Under the consent decree, if the EPA approves all of the new or revised water quality standards that the EPA identifies in the Bay-Delta Plan amendments, the EPA's action must be completed no later than 182 days from the date ESA consultation concludes. If the EPA disapproves in whole or any part of the new or revised water quality standards the EPA identifies in the Bay-Delta Plan amendments, the EPA's action shall be completed no later than 365 days from the date ESA consultation concludes.

For a period of thirty (30) days following the date of publication of this notice, the EPA will accept written comments relating to the proposed consent decree from persons who are not parties to the litigation. The EPA or the U.S. Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments received disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the CWA.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How can I get a copy of the proposed consent decree?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2024-0531) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the OEI Docket is [phone].

The electronic version of the public docket for this action contains a copy of the proposed consent decree and is available through https://www.regulations.gov. You may use https://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search.”

B. How and to whom do I submit comments?

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0531 via https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets. For additional information about submitting information identified as CBI, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document.

If you submit an electronic comment, the EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the ( print page 93289) comment and allows the EPA to contact you in case the EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. 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 the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment.

Use of the https://www.regulations.gov website to submit comments to the EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means the EPA will not know your identity, email address, or other contact information unless you provide it in the body 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.” The EPA does not plan to consider these late comments.

Dawn Messier,

Acting Associate General Counsel.