[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Notices]
[Pages 64458-64459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22591]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2020-0507; FRL-10015-55-OGC]


Proposed Settlement Agreements, Clean Water Act and Endangered 
Species Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for public comment.

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SUMMARY: In accordance with the Environmental Protection Agency (EPA) 
Administrator's October 16, 2017, Directive Promoting Transparency and 
Public Participation in Consent Decrees and Settlement Agreements, 
notice is hereby given of a proposed stipulated order of dismissal to 
address several claims in a lawsuit filed by Northwest Environmental 
Advocates (``Plaintiff'') in the U.S. District Court for the Western 
District of Washington. On December 7, 2016 the Plaintiff filed a 
complaint alleging, among other things, that the EPA's failed to 
perform duties mandated by the Endangered Species Act (ESA) to consult 
with the Fish & Wildlife Service and the National Marine Fisheries 
Service (collectively ``the Services'') regarding its actions under the 
Clean Water Act (CWA) with respect to nonpoint source management 
programs administered by the State of Washington Department of Ecology 
(``Ecology''). EPA seeks public input on the proposed stipulated order 
of dismissal prior to its final decision-making to settle the 
litigation.

DATES: Written comments on the proposed settlement agreements must be 
received by November 12, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2020-0507, online at www.regulations.gov (EPA's preferred method). 
For comments submitted at www.regulations.gov, follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically 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 
generally will not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). The EPA encourages the public to submit comments 
via www.Regulations.gov, as there will be a delay in processing mail 
and no hand deliveries will be accepted. For additional submission 
methods, please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Stephen Sweeney, Water Law Office 
(2355A), Office of General Counsel, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: 
(202) 564-5491; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Stipulated Dismissal

    On December 7, 2016, Plaintiff filed suit in the federal district 
court for the Western District of Washington. Plaintiff's original 
Complaint brought six claims alleging violations of various statutes by 
EPA and the National Oceanic & Atmospheric Administration (``NOAA''), 
including Administrative Procedure Act (``APA'') claims alleging 
violations of the Coastal Zone Management Act, the CWA, the Coastal 
Zone Act Reauthorization Amendments, and the ESA. The State of 
Washington Department of Ecology (``Ecology'') also intervened as a 
defendant in the litigation, as did the Washington State Farm Bureau 
Federation and Washington Cattlemen's Association. Each party filed 
motions designed to resolve some of the claims in the dispute. The 
proposed stipulated order of dismissal would resolve the remaining 
claims, specifically the remaining claims against EPA under the CWA and 
ESA.
    Plaintiff's remaining claims are that EPA: Violated CWA section 319 
by approving Ecology's 2015 nonpoint source program update; violated 
CWA section 319(h)(8) in successive determinations in 2015, 2016, and 
2017 that Washington had made ``satisfactory progress'' in implementing 
its nonpoint source program over the preceding years (2014, 2015, 
2016); and violated ESA section 7 by failing to consult on the 
preceding actions, as well as on EPA's annual awards of CWA section 319 
grant funds in each year between 2011-2017.
    Under the proposed stipulated order of dismissal, EPA's obligations 
would be as follows: EPA's approval of Ecology's 2015 program update 
submittal would be remanded to EPA, and EPA's reconsideration of the 
program update (and associated ESA procedural commitments) would be 
stayed pending Ecology's action (or inaction as of a date certain) in 
submitting its next anticipated program update under section CWA 
section 319. Under the proposed settlement, EPA would be obligated to 
make an effects determination under ESA regulations, pursuant to 50 CFR 
402.14(a), on EPA's approval, if any, of either Ecology's 2015 
Submittal or its next nonpoint source management program update, 
depending on whether Ecology timely submits an update and, as 
appropriate, request initiation of ESA section 7 consultation with the 
U.S. Fish and Wildlife Service and/or the National Marine Fisheries 
Service. Specifically, if Ecology does not submit a program update by 
December 31, 2021, or a mutually negotiated extension, EPA would 
proceed with an ESA effects determination based on the State's 2015 
submittal (which EPA approved in 2015) and, as appropriate, request 
initiation of ESA section 7 consultation. EPA also would make an 
``effects determination'' under the ESA for the first ``satisfactory 
progress'' determination (under CWA section 319(h)(8)) associated with 
issuance of

[[Page 64459]]

the next (2022) annual federal grant award and, as appropriate, request 
initiation of ESA consultation with the Services. The proposed 
stipulated order of dismissal would not resolve NWEA's claim for 
attorney's fees, which Plaintiff would need to file within 30 days of 
entry of the stipulated order of dismissal. The proposed stipulated 
order of dismissal includes obligations for Ecology; those terms are 
outside the scope of this notice and the Agency is not soliciting 
comment on them.
    For a period of thirty (30) days following the date of publication 
of this notice, the Agency will accept written comments relating to the 
obligations of EPA for resolution of the claims contained in the 
proposed stipulated order of dismissal from persons who are not named 
as original parties or intervenors to the litigation in question. EPA 
also may hold a public hearing on whether to enter into the proposed 
stipulated order of dismissal. EPA or the Department of Justice may 
withdraw or withhold consent to the proposed stipulated order of 
dismissal if the comments disclose facts or considerations that 
indicate that such consent is inappropriate, improper, inadequate, or 
inconsistent with the requirements of the CWA or ESA. Unless EPA or the 
Department of Justice determines that consent to this proposed 
stipulated order of dismissal should be withdrawn, the terms of the 
proposed stipulated order of dismissal will be affirmed and entered 
with the Court.

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 EPA-HQ-
OGC-2020-0507) contains a copy of the proposed settlement agreement. 
The official public docket is located at the Office of Environmental 
Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 
1301 Constitution Ave. NW, Washington, DC. The regular hours of the EPA 
Docket Center Public Reading Room are from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays; however, due to the 
COVID-19 pandemic, there may be limited or no opportunity to enter the 
docket center. At the time of this printing, the docket center is 
closed to public visitors out of an abundance of caution for members of 
the public and EPA staff to reduce the risk of transmitting COVID-19. 
During the closure, Docket Center staff will continue to provide remote 
customer service via email, phone, and webform. For further information 
on EPA Docket Center services, see https://www.epa.gov/dockets. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the OEI Docket is (202) 566-1752.
    An electronic version of the public docket is available on EPA's 
website at www.regulations.gov. You may use 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.'' 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 online at www.regulations.gov without 
change, unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. Information 
claimed as CBI and other information whose disclosure is restricted by 
statute is not included in the official public docket or in the 
electronic public docket.
    EPA's policy is that copyrighted material, including copyrighted 
material contained in a public comment, will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. EPA has not included any 
copyrighted material in the docket for this proposed settlement. If 
commenters submit copyrighted material in a public comment, it will be 
placed in the official public docket and made available for public 
viewing when the EPA Docket Center is open.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section. 
Please ensure that your comments are submitted within the specified 
comment period. The EPA encourages the public to submit comments via 
www.Regulations.gov. There will be a delay in processing mail and no 
hand deliveries will be accepted due to the COVID-19 pandemic.
    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 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. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email address is automatically captured and 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.

    Dated: October 6, 2020.
Steven Neugeboren,
Associate General Counsel.
[FR Doc. 2020-22591 Filed 10-9-20; 8:45 am]
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