2023-08606. Proposed Settlement Agreement, Clean Water Act and Administrative Procedure Act Claims

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed settlement agreement; request for public comment.

SUMMARY:

In accordance with the Environmental Protection Agency (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 settlement agreement in Center for Biological Diversity v. EPA and FWS, No. 21–71306 (9th Cir.). In October 2021, Center for Biological Diversity (Plaintiff) filed a petition in the U.S. Court of Appeals for the Ninth Circuit challenging EPA's issuance of the 2021 Pesticide General Permit (PGP), a permit issued by EPA pursuant to the Clean Water Act (CWA). The petition alleged that EPA failed to comply with the CWA in issuing the 2021 PGP, and that EPA and the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) in issuing the 2021 PGP. EPA seeks public input on a proposed settlement agreement prior to its final decision-making with regard to potential settlement of the litigation.

DATES:

Written comments on the proposed settlement agreement must be received by May 24, 2023.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA–HQ–OGC–2023–0247 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 Settlement Agreement” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Alec Mullee, 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 Settlement Agreement

The PGP covers discharges to waters of the United States from the following pesticide use patterns: mosquito and other flying insect pest control; weed and algae pest control; animal pest control; and forest canopy pest control. Shortly after EPA issued the 2021 PGP, Plaintiff filed a petition for review in the Ninth Circuit. The parties requested a stay before briefing commenced, which the court granted. During the stay, the Parties negotiated this proposed settlement agreement. Under the proposed agreement, EPA would take specified steps with respect to implementation of the 2021 PGP. EPA and FWS would complete ESA consultation on EPA's next issuance of the PGP (the 2026 PGP) by October 31, 2024. When EPA proposes the 2026 PGP, EPA would propose for public comment certain changes to its monitoring and recordkeeping provisions. EPA would issue the 2026 PGP by December 17, 2024, to be effective in October 2026.

For a period of thirty (30) days following the date of publication of this notice, EPA will accept written comments relating to the proposed settlement agreement from persons who are not parties to the litigation. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement 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, ESA or APA.

II. Additional Information About Commenting on the Proposed Settlement Agreement

A. How can I get a copy of the proposed settlement agreement?

The official public docket for this action (identified by Docket ID No. EPA–HQ–OGC–2023–0247 contains a copy of the proposed settlement agreement. 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 (202) 566–1744, and the telephone number for the OEI Docket is (202) 566–1752.

The electronic version of the public docket for this action contains a copy of the proposed settlement agreement 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–2023–0247 via https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. 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. 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, 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 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. 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.

Use of the https://www.regulations.gov website to submit comments to EPA electronically is EPA's preferred method for receiving comments. We strongly encourage you to send your comments electronically to ensure that they are received prior to the close of the comment period. The electronic public docket system is an “anonymous access” system, which means 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.” EPA does not plan to consider these late comments.

Steven M. Neugeboren,

Associate General Counsel.