2024-18436. Proposed Settlement Agreement, Endangered Species Act and Administrative Procedure Act Claims

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Environmental Protection Agency

1. [EPA-HQ-OGC-2024-0390; FRL-12174-01-OGC]

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. U.S. Environmental Protection Agency, et al., No. 1:22-cv-486-BAH (D.D.C.). On February 24, 2022, the Plaintiff Center for Biological Diversity filed a complaint in the United States District Court for the District of Columbia against the EPA alleging that the Agency had violated the Administrative Procedure Act and Section 7 of the Endangered Species Act (ESA) in connection with EPA's 1993, 1998, and 2007 approvals under the Clean Water Act of Washington State's water quality criteria for cyanide. 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 September 16, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0390 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:

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 Settlement Agreement

On February 24, 2022, the Plaintiff filed a complaint against the EPA, the National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service (FWS) (collectively “the Agencies”), alleging violations of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., related to EPA's Clean Water Act Section 303(c) actions to approve Washington's water quality criteria for cyanide in 1993, 1998 and 2007. The complaint alleges that the EPA failed to complete ESA Section 7 consultation on its approvals of Washington's cyanide criteria and failed to ensure those approvals would not jeopardize ESA-listed species or adversely modify critical habitat. The complaint further alleges that the Agencies violated the ESA by failing to reinitiate consultation on Washington's cyanide criteria following the designation and revision of critical habitat and new information regarding the impact of Washington's cyanide ( print page 66713) criteria on listed species and designated habitat.

On August 8, 2023, the U.S. District Court for the District of Columbia denied the government's Motion to Dismiss the complaint. The parties then initiated settlement discussions, which produced the proposed settlement agreement. Under the settlement agreement, EPA would be obligated to complete a biological evaluation pursuant to 50 CFR 402.13(c)(1) and 50 CFR 402.14(c)(1) of Washington State's current marine and Puget Sound cyanide criteria and submit its request to initiate formal consultation or a letter requesting concurrence with any “not likely to adversely affect” findings within 18 months of Washington State's submission of revised freshwater cyanide criteria. As noted in the proposed settlement agreement, Washington recently proposed revisions to its freshwater criteria for cyanide and intends to submit the revised criteria to EPA for review and action under CWA Section 303(c). In the event Washington does not submit revised freshwater criteria for cyanide by September 24, 2024, the settlement obligates EPA to complete a biological evaluation on Washington's current freshwater criteria for cyanide. Under the proposed agreement, EPA would be required to complete and submit its biological evaluation of Washington's cyanide criteria within an 18-month period starting no later than September 24, 2024. If NMFS and/or FWS determine the data requirements of 50 CFR 402.14(c) have not been met, EPA would be obligated to resolve any data deficiencies within 60 days of such notification consistent with 40 CFR 402.14(f). Finally, under the proposed agreement, NMFS and FWS would be obligated to issue a concurrence or non-concurrence within 120 days of any EPA request for concurrence or issue biological opinions within 12 months of initiating formal consultation. The schedule set forth in the proposed settlement agreement reflects the Agencies' reasoned consideration of the time needed to address ESA Section 7 consultation requirements.

For a period of thirty (30) days following the date of publication of this notice, EPA will accept written comments relating to the proposed EPA obligations in the 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 settlement agreement is inappropriate, improper, inadequate, or inconsistent with the requirements of the 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-2024-0390) 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 [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-2024-0390 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. 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 Neugeboren,

Associate General Counsel.