[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66712-66713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 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: (202) 564-9636; email address: [email protected].

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 
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.
[FR Doc. 2024-18436 Filed 8-15-24; 8:45 am]
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