83 FR 29113 - Proposed Stipulated Order of Partial Dismissal, Endangered Species Act Claims

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 121 (June 22, 2018)

Page Range		29113-29114
FR Document		2018-13572

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 partial dismissal to address several claims in a lawsuit filed by the Northwest Environmental Advocates (``Plaintiff'') in the United States District Court for the Western District of Washington: Northwest Environmental Advocates v. United States Environmental Protection Agency, No. 2:14- cv-0196. On September 1, 2015, Plaintiff filed an amended complaint alleging, inter alia, that the United States Environmental Protection Agency (``EPA'') 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 water quality standards adopted by Washington and approved by the EPA. The proposed stipulated order of partial dismissal would set a deadline for EPA to complete an ESA effects determination for its February 11, 2008, approval of Washington's revisions to the State's ammonia criteria and, as appropriate, request initiation of any necessary ESA consultation with the Services.

Federal Register, Volume 83 Issue 121 (Friday, June 22, 2018)

[Federal Register Volume 83, Number 121 (Friday, June 22, 2018)]
[Notices]
[Pages 29113-29114]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13572]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2018-0378; FRL-9979-73-OGC]


Proposed Stipulated Order of Partial Dismissal, Endangered 
Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulated order of partial dismissal; 
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 partial 
dismissal to address several claims in a lawsuit filed by the Northwest 
Environmental Advocates (``Plaintiff'') in the United States District 
Court for the Western District of Washington: Northwest Environmental 
Advocates v. United States Environmental Protection Agency, No. 2:14-
cv-0196. On September 1, 2015, Plaintiff filed an amended complaint 
alleging, inter alia, that the United States Environmental Protection 
Agency (``EPA'') 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 water quality standards adopted by Washington and approved by 
the EPA. The proposed stipulated order of partial dismissal would set a 
deadline for EPA to complete an ESA effects determination for its 
February 11, 2008, approval of Washington's revisions to the State's 
ammonia criteria and, as appropriate, request initiation of any 
necessary ESA consultation with the Services.

DATES: Written comments on the proposed stipulated order of partial 
dismissal must be received by July 23, 2018.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2018-0378, 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). 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: Thomas Glazer, Water Law Office 
(7426N), Office of General Counsel, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: 
(202) 564-0908; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Stipulated Dismissal

    On February 10, 2014, Plaintiff filed suit in the federal district 
court for the Western District of Washington. Plaintiff's original 
Complaint brought five claims alleging violations of ESA section 7, CWA 
section 303(c), and the Administrative Procedures Act (``APA''). 
Following EPA's motion to partially dismiss on statute of limitations 
grounds, NWEA filed an Amended Complaint on September 1, 2015, which 
alleges four broad sets of claims. Plaintiff's first claim alleges 
that, on February 11, 2008, EPA approved revised State of Washington 
Department of Ecology (Washington) water quality standards involving 
metals conversion factors and ammonia criteria without initiating 
consultation under ESA section 7(a)(2) in contravention of the ESA. 
Plaintiffs' second claim alleges that the listing of new species, 
designation of new critical habit, and Washington's completion of a 
2009 study regarding dissolved oxygen all triggered an obligation for 
EPA to reinitiate consultation on various natural conditions criteria 
provisions pertaining to temperature and dissolved oxygen that EPA 
approved on February 11, 2008.
    The proposed stipulated order of partial dismissal would resolve 
these ESA claims. As described in paragraph three of the proposed 
stipulated order of dismissal, within three years, EPA will complete an 
ESA effects determination pursuant to 50 CFR 402.14(a) for its February 
11, 2008 approval of Washington's revisions to the State's ammonia 
criteria and, as appropriate, request initiation of any necessary ESA 
consultation with the Services. If during that time, Washington submits 
revisions to the ammonia criteria and EPA intends to approve, EPA will 
complete an effects determination and, if appropriate, request 
initiation of any necessary ESA consultation with the Services within 
one year of submission or three years of the Court's approval of the 
stipulated order of dismissal, whichever is later. Portions of claims 
three and four would also be dismissed in exchange for commitments by 
Washington, but EPA is not taking comment on those aspects of the 
proposed stipulated order of partial dismissal. See the proposed 
stipulated order of partial dismissal for specific details.
    For a period of thirty (30) days following the date of publication 
of this notice, the Agency will accept written comments relating to the 
resolution of the ESA claims contained in the proposed stipulated order 
of partial dismissal from persons who are not named as parties or 
intervenors to the litigation in question. If so requested, EPA will 
also consider holding a public

[[Page 29114]]

hearing on whether to enter into the proposed stipulated order of 
partial dismissal. EPA or the Department of Justice may withdraw or 
withhold consent to the proposed stipulated order of partial dismissal 
if the comments disclose facts or considerations that indicate that 
such consent is inappropriate, improper, inadequate, or inconsistent 
with the requirements of the Act. Unless EPA or the Department of 
Justice determines that consent to this proposed stipulated order of 
partial dismissal should be withdrawn, the terms of the proposed 
stipulated order of partial dismissal will be affirmed and entered with 
the Court.

II. Additional Information About Commenting on the Proposed Stipulated 
Order of Partial Dismissal

A. How can I get a copy of the proposed stipulated order of partial 
dismissal?

    The official public docket for this action (identified by EPA-HQ-
OGC-2018-0378) contains a copy of the proposed stipulated order of 
partial dismissal. 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.
    An electronic version of the public docket is available on EPA's 
website at [Insert URL] and also through 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. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the EPA Docket Center.

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.
    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 and with any disk or CD 
ROM you submit. 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: June 11, 2018.
Steven Neugeboren,
Associate General Counsel.
[FR Doc. 2018-13572 Filed 6-21-18; 8:45 am]
BILLING CODE 6560-50-P

Federal Register / Vol. 83, No. 121 / Friday, June 22, 2018 / Notices 29113

review and discuss existing information (‘‘EPA’’) failed to perform duties Western District of Washington.
and identify preliminary information mandated by the Endangered Species Plaintiff’s original Complaint brought
and study needs; (4) review and discuss Act (‘‘ESA’’) to consult with the Fish & five claims alleging violations of ESA
the process plan and schedule for pre- Wildlife Service and the National section 7, CWA section 303(c), and the
filing activity that incorporates the time Marine Fisheries Service (collectively Administrative Procedures Act
frames provided for in Part 5 of the ‘‘the Services’’) regarding water quality (‘‘APA’’). Following EPA’s motion to
Commission’s regulations and, to the standards adopted by Washington and partially dismiss on statute of
extent possible, maximizes coordination approved by the EPA. The proposed limitations grounds, NWEA filed an
of federal, state, and tribal permitting stipulated order of partial dismissal Amended Complaint on September 1,
and certification processes; and (5) would set a deadline for EPA to 2015, which alleges four broad sets of
discuss the appropriateness of any complete an ESA effects determination claims. Plaintiff’s first claim alleges that,
federal or state agency or Indian tribe for its February 11, 2008, approval of on February 11, 2008, EPA approved
acting as a cooperating agency for Washington’s revisions to the State’s revised State of Washington Department
development of an environmental ammonia criteria and, as appropriate, of Ecology (Washington) water quality
document. request initiation of any necessary ESA standards involving metals conversion
Meeting participants should come consultation with the Services. factors and ammonia criteria without
prepared to discuss their issues and/or DATES: Written comments on the initiating consultation under ESA
concerns. Please review the PAD in proposed stipulated order of partial section 7(a)(2) in contravention of the
preparation for the scoping meetings. dismissal must be received by July 23, ESA. Plaintiffs’ second claim alleges
Directions on how to obtain a copy of 2018. that the listing of new species,
the PAD and SD1 are included in item ADDRESSES: Submit your comments, designation of new critical habit, and
n. of this document. identified by Docket ID number EPA– Washington’s completion of a 2009
HQ–OGC–2018–0378, online at study regarding dissolved oxygen all
Meeting Procedures triggered an obligation for EPA to
www.regulations.gov (EPA’s preferred
The meetings will be recorded by a method). For comments submitted at reinitiate consultation on various
stenographer and will be placed in the www.regulations.gov, follow the online natural conditions criteria provisions
public records of the project. instructions for submitting comments. pertaining to temperature and dissolved
Dated: June 15, 2018. Once submitted, comments cannot be oxygen that EPA approved on February
edited or removed from 11, 2008.
Kimberly D. Bose,
The proposed stipulated order of
Secretary. www.regulations.gov. The EPA may
partial dismissal would resolve these
[FR Doc. 2018–13368 Filed 6–21–18; 8:45 am] publish any comment received to its
ESA claims. As described in paragraph
public docket. Do not submit
BILLING CODE 6717–01–P three of the proposed stipulated order of
electronically any information you dismissal, within three years, EPA will
consider to be Confidential Business complete an ESA effects determination
Information (CBI) or other information pursuant to 50 CFR 402.14(a) for its
ENVIRONMENTAL PROTECTION
whose disclosure is restricted by statute. February 11, 2008 approval of
AGENCY
Multimedia submissions (audio, video, Washington’s revisions to the State’s
[EPA–HQ–OGC–2018–0378; FRL–9979–73– etc.) must be accompanied by a written
OGC]
ammonia criteria and, as appropriate,
comment. The written comment is request initiation of any necessary ESA
considered the official comment and consultation with the Services. If during
Proposed Stipulated Order of Partial should include discussion of all points
Dismissal, Endangered Species Act that time, Washington submits revisions
you wish to make. The EPA generally to the ammonia criteria and EPA
Claims will not consider comments or comment intends to approve, EPA will complete
AGENCY: Environmental Protection contents located outside of the primary an effects determination and, if
Agency (EPA). submission (i.e. on the web, cloud, or appropriate, request initiation of any
ACTION: Notice of proposed stipulated other file sharing system). For necessary ESA consultation with the
order of partial dismissal; request for additional submission methods, please Services within one year of submission
public comment. contact the person identified in the FOR or three years of the Court’s approval of
FURTHER INFORMATION CONTACT section. the stipulated order of dismissal,
SUMMARY: In accordance with the For the full EPA public comment policy, whichever is later. Portions of claims
Environmental Protection Agency (EPA) information about CBI or multimedia three and four would also be dismissed
Administrator’s October 16, 2017, submissions, and general guidance on in exchange for commitments by
Directive Promoting Transparency and making effective comments, please visit Washington, but EPA is not taking
Public Participation in Consent Decrees http://www2.epa.gov/dockets/ comment on those aspects of the
and Settlement Agreements, notice is commenting-epa-dockets. proposed stipulated order of partial
hereby given of a proposed stipulated FOR FURTHER INFORMATION CONTACT: dismissal. See the proposed stipulated
order of partial dismissal to address Thomas Glazer, Water Law Office order of partial dismissal for specific
several claims in a lawsuit filed by the (7426N), Office of General Counsel, U.S. details.
Northwest Environmental Advocates Environmental Protection Agency, 1200 For a period of thirty (30) days
(‘‘Plaintiff’’) in the United States District Pennsylvania Ave. NW, Washington, DC following the date of publication of this
Court for the Western District of 20460; telephone: (202) 564–0908; email notice, the Agency will accept written
daltland on DSKBBV9HB2PROD with NOTICES

Washington: Northwest Environmental address: Glazer.Thomas@epa.gov. comments relating to the resolution of
Advocates v. United States SUPPLEMENTARY INFORMATION: the ESA claims contained in the
Environmental Protection Agency, No. proposed stipulated order of partial
2:14–cv–0196. On September 1, 2015, I. Additional Information About the dismissal from persons who are not
Plaintiff filed an amended complaint Proposed Stipulated Dismissal named as parties or intervenors to the
alleging, inter alia, that the United On February 10, 2014, Plaintiff filed litigation in question. If so requested,
States Environmental Protection Agency suit in the federal district court for the EPA will also consider holding a public

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Document Modified: 2018-11-06 09:50:35

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of proposed stipulated order of partial dismissal; request for public comment.
Dates		Written comments on the proposed stipulated order of partial dismissal must be received by July 23, 2018.
Contact		Thomas Glazer, Water Law Office (7426N), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone:
FR Citation		83 FR 29113