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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 

Of The Sulphur Bank Rancheria 

16170 Main Street, Suite I- P. Q, ()ox 75 7 . Lower Lake, CA 954-5-7- l-oLuer L~\li-, c R S'j457 

Re: Initiation of Consultation 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 of the San Francisco Bay and Delta (the current chronic selenium criterion is 5 IJ.g/L). 

The purpose of the 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. If finalized, the new criteria would be used in subsequent CW A 

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 of pollutants 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 of the 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, Draft Aquatic L(fe Ambient Water Primed on /00% Postconsumer ec cled Pape1: Proci "·'i Chlorml:! Free. 
Quality Criterion for 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 of the 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 of comments 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 Fleck.Dianera 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. 

If you 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. 

Sinj y, - J 

Tomas Torres 

Director, Water Division