[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: sweeney.stephen@epa.gov.
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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