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'UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Agustin Garcia Chairman REGION IX 75 Hawthorne Street San Francisco, CA 94105-3901

Elem Indian Colony ofPomo Indians OfThe Sulphur Bank Rancheria 16170 Main Street, Suite 

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## c R S'j457 Re : Initiation ofConsultation on Proposed Federal Rulemaking to Revise California's Selenium Aquatic and Aquatic-Dependent Wildlife Criteria Applicable to the San Francisco Bay and Delta Dear Tribal Leader: The U.S. Environmental Protection Agency (EPA) is initiating consultation and coordination with federally recognized tribes on a proposed federal rulemaking. The rulemaking will propose a revision to the current federal Clean Water Act (CWA) selenium water quality criteria applicable to the marine and estuarine waters ofthe San Francisco Bay and Delta (the current chronic selenium criterion is 5 IJ.g/L). The purpose ofthe revision is to consider the best available science and other factors to ensure that the criteria are set at levels that protect aquatic life and aquatic-dependent wildlife, including federally listed threatened and endangered species. Iffinalized, the new criteria would be used in subsequent CWA regulatory processes , including the development ofNational Pollutant Discharge Elimination System (NPDES) permits and Total Maximum Daily Loads (TMDLs). EPA ' s anticipated timeline for the consultation and coordination period is expected to extend from March 30, 2016 through September 30,2016. EPA will prepare a consultation and coordination plan, as well as a more detailed timeline, based on the tribes ' responses to this letter. EPA expects to propose the revised selenium criteria values for the San Francisco Bay and Delta by June 30, 2016. Background The San Francisco Bay and Delta ecosystem is at risk due to environmental degradation. Numerous factors including elevated levels ofpollutants such as selenium are contributing to this problem. Scientific evidence indicates that elevated selenium levels from bioaccumulation through dietary exposure can contribute to the decline of fish and aquatic-dependent birds. EPA promulgated the San Francisco Bay and Delta's existing selenium criteria in 1992 as part ofthe National Toxics Rule (NTR), using EPA ' s recommended aquatic life criteria values at the time. Starting in 2003 , EPA and the Services assisted the USGS in modeling selenium fate and biological uptake in the San Francisco Bay and Delta using recent site-specific and species-specific data for the estuary. EPA analyzed the USGS modeling report and other relevant reports including EPA ' s revised draft national CWA 304(a) recommended criterion for selenium, DraftAquatic L(fe Ambient Water Primed on /00 % Postcons umer

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### Quality Criterionfor Selenium- Freshwater 2015, EPA 822-P-15-001 , July 2015. EPA then conducted more detailed site-specific modeling for several categories of species that live in the estuary to develop the selenium criteria for the San Francisco Bay and Delta in this proposed rule. Consultation and Public Engagement Process EPA is initiating consultation with tribes in order to consider additional, relevant data and/or infonnation that may be considered by the Agency in regards to this rulemaking. The data and/or information will form part ofthe administrative record used to support the proposed selenium criteria values for the San Francisco Bay and Delta. The consultation process is also an opportunity for the tribe to obtain more information on the pmpose and effect of a revised selenium criteria value and to have government-to-government dialogue prior to and during the public comment period. The consultation period is from March 30, 2016 through September 30, 2016. The public conm1ent period for the proposed rule is expected to be from approximately June 30, 2016 to mid-August, 2016. It is tmcertain when EPA will finalize the rule at this time because that process will depend on the number and complexity ofcomments received and how quickly EPA can address comments and incorporate appropriate changes. Next Steps The official contact for this consultation and coordination process on EPA's upcoming proposed federal rule to revise the selenium aquatic and aquatic-dependent wildlife criteria for the San Francisco Bay and Delta is Diane Fleck, who can be reached at 415-972-3527 or email at Fl eck
.Dianer a EPA. !!O\
. Should you choose to engage in govermnent-to-government consultation, please identify a point of contact for coordinating the consultation process and to identify any policies that the Tribe may have regarding consultation. EPA plans to conduct the consultation and coordination process in accordance with the 

### EPA Policy on Consultation and Coordination with Indian Tribes (\\'\Vvv .epa. uo / trihal!consultation/consult-policv
.htm). Working on a government-to-government basis , EPA seeks to solicit feedback and comments from tribes on the proposed rulemaking. Note that in addition to this consultation process, you will have the opportunity to provide input on the proposed rulemaking during the public comment period which is expected to begin around June 30, 2016. Ifyou have any questions or need additional information, please do not hesitate to contact me at 415- 972-3337. EPA looks forward to meeting with you. 

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Tomas Torres Director, Water Division