Notice2024-18436
Proposed Settlement Agreement, Endangered Species Act and Administrative Procedure Act Claims
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66712-66713]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18436]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2024-0390; FRL-12174-01-OGC]
Proposed Settlement Agreement, Endangered Species Act and
Administrative Procedure Act Claims
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed settlement agreement; request for public
comment.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> (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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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: (202) 564-9636; email address: <a href="/cdn-cgi/l/email-protection#aee9cfdcdccbdaddc1c080ebc2cbcfc0c1dceecbdecf80c9c1d8"><span class="__cf_email__" data-cfemail="6a2d0b18180f1e190504442f060f0b0405182a0f1a0b440d051c">[email protected]</span></a>.
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
[[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 (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 consent decree and is available through
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may use <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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.
[FR Doc. 2024-18436 Filed 8-15-24; 8:45 am]
BILLING CODE 6560-50-P
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