[Federal Register: January 15, 1999 (Volume 64, Number 10)]
[Notices]
[Page 2741-2757]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja99-130]
[[Page 2741]]
_______________________________________________________________________
Part V
Environmental Protection Agency
Department of the Interior
Fish and Wildlife Service
Department of Commerce
National Oceanic and Atmospheric Administration
_______________________________________________________________________
Draft Memorandum of Agreement Between the Environmental Protection
Agency, Fish and Wildlife Service, and National Marine Fisheries
Service Regarding Enhanced Coordination Under the Clean Water Act and
the Endangered Species Act; Notice
[[Page 2742]]
ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[FRL-6219-4]
Draft Memorandum of Agreement Between the Environmental
Protection Agency, Fish and Wildlife Service, and National Marine
Fisheries Service Regarding Enhanced Coordination Under the Clean Water
Act and the Endangered Species Act
AGENCIES: Environmental Protection Agency, Fish and Wildlife Service,
Interior, and National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency, Fish and Wildlife
Service, and National Marine Fisheries Service are publishing for
public comment a draft Memorandum of Agreement describing procedures
for enhancing coordination regarding the protection of endangered and
threatened species under section 7 of the Endangered Species Act and
the Clean Water Act's Water Quality Standards and National Pollutant
Discharge Elimination System programs.
DATES: Comments must be received or postmarked by midnight March 16,
1999.
ADDRESSES: An original and 4 copies of written comments should be
submitted to W-98-32, ESA Comment Clerk, Water Docket (MC4101), USEPA
401 M Street SW, Washington, DC, 20460. Commenters who want EPA to
acknowledge receipt of their comments should enclose a self-addressed,
stamped envelope. No facsimiles (faxes) will be accepted. Comments may
also be submitted electronically to ow-docket@epamail.epa.gov.
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption. Electronic comments
must be identified by docket number W-98-32. Comments will also be
accepted on disks in WP 5.1, WP 6.1, or ASCII file format.
The record for this draft Memorandum of Agreement has been
established under docket number W-98-32, and includes supporting
documentation as well as printed, paper versions of electronic
comments. The record is available for inspection from 9 to 4 p.m.,
Monday through Friday, excluding legal holidays at the Water Docket, EB
57, USEPA Headquarters, 401 M Street, Washington, D.C. For access to
docket materials, call 202-260-3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: Barbara McLeod, Office of Water,
Environmental Protection Agency (telephone 202-260-5681); Margaret
Lorenz, Endangered Species Division, National Marine Fisheries Services
(telephone 301-713-1401); or Richard Hannan, Division of Endangered
Species, Fish and Wildlife Service (telephone 703-358-2171).
SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA),
and the Fish and Wildlife Service and the National Marine Fisheries
Service (the Services, referring to each Service individually or
jointly, as appropriate), have developed a draft Memorandum of
Agreement (MOA, or Agreement) describing how we will cooperate in
implementing our respective responsibilities under the Clean Water Act
(CWA) and the Endangered Species Act (ESA). Specifically, the draft MOA
addresses the protection of endangered and threatened species under the
Water Quality Standards and National Pollutant Discharge Elimination
System (NPDES) programs established by sections 303(c) and 402 of the
CWA, respectively.
EPA and the Services believe that a national agreement detailing
how these programs protect an important component of the aquatic
environment--endangered and threatened species--will help achieve the
complementary goals of the CWA and the ESA. Section 101(a) of the CWA
states that the goal of this Act is to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.
One important indicator of biological integrity is the extent to which
the waters provide for the ``protection and propagation of fish,
shellfish and wildlife.'' CWA section 101(a)(2). Conversely, a water
body whose quality is contributing to a species' risk of extinction is
not fulfilling the CWA's objectives or meeting the objectives of the
ESA. Paying attention to the needs of endangered and threatened species
as EPA implements the CWA will help achieve the goals of the CWA as
well as the ESA's objective of providing ``a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved. * * *'' ESA 2(b).
In recent years, EPA and the Services have increased efforts to
achieve greater integration of CWA and ESA programs. These activities
have included ESA section 7 consultations on EPA's actions approving
State and Tribal water quality standards and NPDES permitting programs.
These consultations have generally been conducted by our regional and
field offices on a case-by-case basis. We have found, however, that
certain issues repeatedly arise in these consultations. These issues
include: the extent to which water quality criteria are protective of
listed species; the protection of non-aquatic wildlife; the appropriate
scope of reasonable and prudent measures for minimizing incidental take
of listed species; research needs to address areas of uncertainty; and
interagency coordination with regard to EPA oversight of NPDES permits
issued by States or Tribes. A coordinated national approach would help
ensure an appropriate level of protection for listed species and
greater regulatory predictability for States, Tribes, and the public.
Enhanced cooperation among the agencies, by more effectively ensuring
that effects from pollutants on listed species are addressed under
existing authorities, should also help avoid the need to list new
species under the ESA and facilitate recovery of species so that they
no longer require protection under the ESA.
The draft MOA also seeks to make ESA section 7 consultations more
timely and efficient. Some consultations between the EPA and the
Services have been protracted (the average water quality standards
consultation has, for example, taken approximately eighteen months),
consuming considerable EPA and Service resources. By providing guidance
to our field offices, enhancing coordination, and establishing
procedures for resolving disagreements, the draft MOA seeks to
streamline the consultation process, helping us and interested parties
that depend on timely decision-making by the Federal government.
The draft MOA is a procedural document that addresses how EPA and
the Services intend to exercise our existing statutory and regulatory
authorities in a coordinated manner. A final MOA will be guidance to
our field office staff that does not alter, expand, or substitute for
applicable legal requirements. Therefore, development of the MOA is not
subject to the notice and comment rule-making requirements of the
Administrative Procedure Act, 5 U.S.C. 553. However, we believe that
[[Page 2743]]
these procedures would benefit from public input, and we will consider
all public comments received prior to the date in the DATES section
above.
EPA and the Services have also been engaged in discussions
regarding the development of procedures for coordination with regard to
State/Tribal permitting programs under sections 404 and 405 of the CWA,
and we plan to continue our discussions in these areas.
I. Statutory Background
Section 7 of the ESA imposes substantive and procedural obligations
on Federal agencies. Section 7(a)(1) of the ESA requires Federal
agencies, in consultation with and with the assistance of the Services,
to utilize their authorities to further the purposes of the ESA by
carrying out programs for the conservation of listed threatened and
endangered species. Section 7(a)(2) of the ESA states that Federal
agencies shall, in consultation with, and with the assistance, of the
Services, insure that any action authorized, funded, or carried out by
the agency is not likely to jeopardize the continued existence of any
listed species or result in the destruction or adverse modification of
habitat that has been designated as critical for the species. Section
7(a)(4) of the ESA also requires that Federal agencies confer with the
Services on any agency action that is likely to jeopardize the
continued existence of any species proposed for listing, or result in
the destruction or adverse modification of proposed critical habitat.
Regulations outlining the process for section 7 consultation and
conference are codified at 50 CFR part 402.
The ESA also makes it unlawful for any person to ``take'' any fish
or wildlife species that is listed under the Act. ESA 9(a)(1)(B).
``Take'' is defined to mean ``to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect, or to attempt to engage in such
conduct.'' 16 U.S.C. 1532(19). However, the Services may provide an
exemption to the prohibition on take that is incidental to otherwise
legal activity through a statement that is attached to a biological
opinion. The incidental take statement specifies the terms and
conditions necessary to carry out reasonable and prudent measures that
will minimize the incidental take.
EPA's authorities under the water quality standards and NPDES
permitting programs are contained in sections 303(c), 304(a) and 402 of
the CWA. Under section 303(c), the development of water quality
standards is primarily the responsibility of States and Tribes
qualified for treatment in the same manner as States, with EPA
exercising an oversight role. Water quality standards consist of three
components: (1) the designated uses of waters, which can include use
for public water supplies, propagation of fish and wildlife,
recreational, agricultural, industrial and other uses; (2) water
quality criteria, expressed in numeric or narrative form, reflecting
the condition of the water body that is necessary to protect its
designated use, and (3) an antidegradation policy that protects
existing uses and provides a mechanism for maintaining high water
quality. States and Tribes are required to review their standards every
three years and any revisions or new standards must be submitted to EPA
for approval. Section 303(c) contains time frames for EPA to review and
either approve or disapprove standards submitted by a State or Tribe,
and requires EPA to promulgate Federal standards to supersede
disapproved State or Tribal standards. In addition, section 303(c)
authorizes EPA to promulgate Federal standards whenever the
Administrator determines that such standards are necessary to meet the
requirements of the CWA. Regulations implementing section 303(c) are
codified at 40 CFR part 131.
Under section 304(a) of the CWA, EPA from time to time publishes
recommended water quality criteria that serve as scientific guidance
for use by States or Tribes in establishing and revising water quality
standards. These criteria are not enforceable requirements, but are
recommended criteria levels that States or Tribes may adopt as part of
their legally enforceable water quality standards. States or Tribes may
adopt other scientifically defensible criteria instead of EPA's
recommended criteria (see 40 CFR 131.11(b)).
The NPDES permitting program is established by section 402 of the
CWA. Any person that discharges a pollutant (other than dredged or fill
material) into waters of the United States from a point source must
obtain an NPDES permit. See CWA section 301(a). (Dischargers of dredged
or fill material must obtain a permit under section 404 of the CWA from
the Army Corps of Engineers or an authorized State.) EPA issues permits
under section 402 unless a State or Tribe has been approved by EPA to
administer the permitting program. Any NPDES permit must contain
limitations to reflect the application of available treatment
technologies, as well as any more stringent limitations needed to
ensure compliance with water quality standards. CWA 301(b). EPA has
promulgated regulations governing the administration of the NPDES
program. See 40 CFR parts 122, 124-125.
The CWA authorizes States or Tribes to administer the NPDES program
provided the program meets the conditions specified in section 402(b)
of the Act and EPA regulations. See 40 CFR part 123. Currently, 43
States and the U.S. Virgin Islands have received approval from EPA to
operate the NPDES program. Authorized States and Tribes are required to
maintain their programs consistent with minimum statutory and
regulatory requirements. When EPA approves State or Tribal authority to
administer an NPDES program, EPA maintains oversight responsibility,
including the authority to review, comment on and, where a permit is
``outside the guidelines and requirements'' of the CWA, object to State
or Tribal draft permits. CWA section 402(d)(2). If EPA objects to a
State or Tribal permit and the State or Tribe fails to revise the
permit to satisfy EPA's objection, the authority to issue the permit is
transferred to EPA. Section 402(c) of the CWA authorizes EPA to
withdraw the State's or Tribe's permitting authority if EPA determines
the program is not being administered in accordance with the Act.
II. Public Outreach and Comments Received by EPA and the Services
EPA and the Services have developed this draft MOA after
approximately two years of discussions. In addition, EPA communicated
with stakeholders (e.g., States, Tribes, industry and environmental
groups) about the MOA, and gave copies of a July 31, 1997, version of
the draft MOA to each of the 50 State environmental agencies, several
industry trade associations, environmental groups and any other party
requesting a copy. We also invited these parties to provide comments on
the draft and received approximately 90 comments. We recognize that
other interested parties may not have had an opportunity to provide
comments to the agencies, and therefore are providing an opportunity
for comment on this draft. Below we have responded to some general
concerns that were raised in comments we received to date. We hope that
this discussion will help clarify the purpose and intent of this draft,
and help the public in formulating comments.
While some commenters supported the basic approach in the MOA, most
commenters expressed concerns that the draft MOA would significantly
disrupt State CWA programs and undermine State and Tribal authorities
under sections 303 and 402 of the CWA. Some commenters believed that
the draft MOA raises significant legal issues regarding the
applicability of section 7
[[Page 2744]]
consultation requirements to State, as opposed to Federal, water
quality management activities. We believe that these comments
misunderstand the intent and effect of the MOA, which is to make the
existing coordination and consultation process between EPA and the
Services more efficient and effective, not to impose any burdens on
States or Tribes.
The draft MOA does not change our current policy of conducting
section 7 consultations on EPA's actions approving water quality
standards and NPDES permitting programs that may affect a listed
species. Neither does the draft MOA alter the fact that section 7 of
the ESA applies only to Federal agencies, not to States or Tribes.
Rather, the draft MOA simply contains commitments by EPA and the
Services about how we will work together in carrying out our own
responsibilities under the ESA and the CWA.
EPA and the Services recognize that carrying out section 7
consultations on EPA approval of State and Tribal water quality
standards and permitting programs presents special challenges. In most
section 7 consultations, the Federal agency consults regarding its own
activities or authorization of actions by third parties that affect
listed species. Here, EPA is consulting with the Services on EPA's
approval of State or Tribal programs that will, in turn, authorize
activities potentially affecting listed species on an ongoing basis.
The draft MOA seeks to facilitate Service involvement at the State and
Tribal level, rather than only at the time the State or Tribal action
has been completed and is being reviewed by EPA. Dialogue among EPA,
the Services and States and Tribes through existing State or Tribal CWA
procedures will best ensure that both CWA and ESA requirements are met.
The draft MOA would not override traditional State or Tribal
authority or fundamentally alter relationships between the States,
Tribes and EPA. The CWA gives States and Tribes primary responsibility
for administration of the water quality standards and NPDES permitting
programs, with EPA playing a carefully delineated oversight role. The
draft MOA seeks to ensure that EPA's oversight takes into account the
needs of listed species, but does not augment EPA's existing oversight
authorities under sections 303(c) or 402 of the CWA.
Some commenters concluded that the draft MOA would give the
Services the power unilaterally to ``veto'' State or Tribal NPDES
permits or require changes to water quality standards. EPA is the
agency vested with decision-making oversight authority under the CWA
over State and Tribal water quality standards and permitting programs,
and the MOA does not alter or diminish this authority. Under the MOA,
EPA would continue to exercise its own independent judgment whether to
object to a State or Tribal permit or to approve or disapprove State or
Tribal water quality standards, based on all the available information,
including the advice and recommendations of the Services. One commenter
recognized that EPA would retain decision-making authority, but
asserted that the practical effect of the draft MOA would be to give
the Services veto power because EPA would want to avoid a disagreement
with the Services. The MOA recognizes that EPA and the Services may not
always agree, and the elevation procedures in the MOA will help resolve
differences of opinion. However, the draft MOA does not diminish each
agency's ultimate authority to make final decisions under its statutory
authorities.
One commenter asserted that EPA and the Services have not
demonstrated that the current ``system'' is inadequate and needs to be
replaced with one that is more cumbersome. This comment appears to
misunderstand the status quo. As discussed previously, section 7 of the
ESA gives the Services a consultative role when EPA takes actions
approving State and Tribal water quality standards and NPDES programs
that may affect listed species. The MOA does not change or extend this
role, but rather seeks to ensure consultations are carried out
effectively and efficiently.
III. Summary of the Draft MOA
The major components of the MOA are summarized below. These
components are (1) procedures for interagency coordination and
elevation, (2) national level water quality standards activities, (3)
review of State and Tribal water quality standards, and (4) oversight
of State and Tribal NPDES permitting programs. In addition to
summarizing these aspects of the draft MOA, we address below
significant comments about each section submitted on the July 31, 1997,
draft of the MOA.
A. Interagency Coordination and Elevation
The draft MOA provides that EPA and the Services will establish
interagency coordinating teams at the regional and field office level
to foster early and recurring collaboration on various CWA and ESA
activities. Among other things, these teams will meet regularly and
identify priority areas of concern and upcoming workload requirements.
Enhancing the collaborative working relationships among our regional
and field offices will mean more efficient allocation of our limited
resources and more timely completion of section 7 consultations.
The draft MOA also contains an elevation procedure that we will use
to resolve issues that may arise among EPA and the Services. Under this
procedure, we will elevate areas of disagreement to regional office
senior managers and, if necessary, to managers in our headquarters
offices under specified time lines. This elevation procedure should
help avoid delays in resolving issues, and speed the completion of
section 7 consultations. The elevation procedures recognize, however,
that each agency is responsible for final decisions implementing its
own statutory authority. We intend to follow the elevation process
contained in the draft MOA on an interim basis before finalizing the
MOA to help assess the effectiveness of the process.
B. National Level Water Quality Standards Activities
The draft MOA describes several activities that EPA and the
Services will undertake at the national level to facilitate
consideration of endangered species issues in the water quality
standards program. First, the MOA states that EPA will propose to amend
its water quality standards regulations (40 CFR part 131) to require
that water quality not likely jeopardize the continued existence of
Federally-listed species or destroy or adversely modify designated
critical habitat. The proposed rule would also require that State or
Tribal policies authorizing the granting of mixing zones or variances
not likely result in jeopardy, and require adoption of site-specific
criteria where determined to be necessary to avoid the likelihood of
jeopardy. A similar approach was taken by EPA in regulations
promulgated for the Great Lakes basin. See 40 CFR 132.5(h); 56 FR 15384
(March 23, 1995).
EPA believes that the proposed rule essentially would codify
existing protection for endangered and threatened species under the CWA
since, in EPA's judgment, water quality that is so degraded that it
will likely cause jeopardy to the continued existence of a species
would generally not be consistent with protections provided by the
Clean Water Act. Standards adopted by the State or Tribe to protect
water quality. The proposed rule would be subject to public notice and
opportunity for comment.
Many States commented that EPA should consult with the Services on
[[Page 2745]]
EPA's recommended water quality criteria published under section
304(a). The States believed that such consultations on a national level
would be more efficient than consulting on criteria adopted by
individual States, many of which are based on EPA's recommended
criteria. EPA and the Services have engaged in further discussions in
light of these comments. We recognize that the aquatic life criteria
published by EPA only constitute guidance to the States, Tribes and the
public regarding pollutant levels that EPA believes would protect
aquatic life. These criteria are not binding on the States or Tribes,
which may adopt EPA's criteria or any other criteria that are
``scientifically defensible.'' See 40 CFR 131.11(b). Moreover, water
quality criteria published by EPA, because they are only guidance, do
not establish legally enforceable requirements. Nonetheless, we believe
it would be more efficient for us to consult once nationally on EPA's
recommended criteria, rather than repeat the process on a case-by-case
basis.
The draft MOA therefore provides that EPA and the Services will
conduct a national consultation on EPA's recommended aquatic life
criteria published under section 304(a) of the CWA. The agencies will
undertake the consultation in a collaborative fashion and will endeavor
to complete it within eighteen months of final adoption of the MOA.
After this consultation is completed, separate consultations by EPA
will not be required when approving State or Tribal aquatic life
criteria that are identical to or more stringent than the recommended
criteria, except where new species are listed that may be affected.
Conducting this national consultation will help streamline EPA's
compliance with section 7 of the ESA when approving State or Tribal
water quality standards. During this national consultation, if a State
or Tribe adopts and submits to EPA aquatic life criteria that are
identical to or more stringent than the current 304(a) criteria,
consultation on those criteria will take place through the national
consultation and EPA will proceed with its approval of those criteria,
subject to the understanding that EPA's action would be revised as
appropriate based on the results of the national consultation.
This consultation process, as well as other consultations among EPA
and the Services, may identify research that would facilitate our
understanding of the effects of pollutants on endangered and threatened
species. EPA and the Services recognize our joint interest in, and
responsibility for, funding and conducting research related to the
effects of water pollution on endangered and threatened species. The
agencies' resources for conducting such research are limited, however,
and the agencies must focus their efforts on pursuing research that can
be carried out given budgetary constraints and will provide the
greatest benefit to at-risk species. The agencies will therefore
develop a national research and data gathering plan, which will make
recommendations regarding consolidation and prioritization of any
research and data gathering efforts identified by the agencies through
section 7 consultation on the aquatic life criteria, or any other CWA
consultation or coordination between the agencies. The agencies will
work to incorporate the plan into their respective budgets and to
achieve economies of scale and increased effectiveness in the use of
limited funds by coordinating efforts wherever possible. The plan may
also include recommendations about the development of new criteria
(e.g., criteria to protect non-aquatic wildlife) by the agencies.
C. State and Tribal Water Quality Standards
The draft MOA contains guidance to regional and field offices
regarding section 7 consultations on EPA's approval of new or revised
water quality standards. The draft MOA seeks to facilitate early
involvement of the Services in the State and Tribal water quality
standards development process, since the most effective time for the
Services to become involved is before and during the State's or Tribe's
development of the standards. Therefore, the draft MOA provides that
EPA and the Services will meet to discuss the scope of upcoming
triennial reviews by States and Tribes and that the Services will
provide input in the standards development process. The draft MOA also
provides that, where available information supports a determination
that existing standards are not adequate to avoid causing jeopardy to a
listed species, EPA will work with the State or Tribe to obtain
revisions to the standards in the triennial review process.
One commenter raised the concern that the draft MOA imposed an
obligation on States and Tribes to improve the quality of the
environment, whereas section 9 of the ESA only prohibits a take of
listed species unless an exception has been made. Again, the draft MOA
is solely a procedural document that does not impose any obligations on
any party, including States and Tribes. Moreover, the CWA charges EPA,
States and Tribes with protecting the chemical, physical and biological
integrity of the Nation's waters. We believe our statutory
responsibilities are carried out by ensuring that water is of
sufficient quality to ensure the protection of endangered and
threatened species.
Other commenters raised the concern that the draft MOA would
elevate endangered species considerations above all other
considerations under the CWA, and undermine the flexibility currently
exercised by States and Tribes to establish use designations that take
into account socioeconomic factors or otherwise do not necessarily
maximize protection of fish and wildlife. Nothing in the draft MOA,
however, modifies any existing statutory and regulatory authorities of
EPA, the Services or States and Tribes, including the flexibility
available to States and Tribes in establishing water quality standards.
The draft MOA is solely an internal procedural document about how CWA
and ESA requirements interrelate. We do not share the assumption that
expressly integrating endangered species concerns into the water
quality standards program would lead to irreconcilable conflicts.
D. State and Tribal Permitting Programs
The draft MOA establishes a framework for EPA and the Services to
coordinate with regard to permits issued by States or Tribes under
section 402 of the CWA. All State and Tribal programs must meet the
same minimum requirements under section 402 of the CWA and EPA
regulations, and EPA's authorities for overseeing State and Tribal
permitting decisions are uniform in all States. See 40 CFR part 123,
subpart C. To date, EPA and the Services have developed coordination
procedures on a case-by-case basis, and these procedures have been
fundamentally similar. Given this similarity, we believe that the
procedural framework for interagency coordination regarding State and
Tribal programs can and should be established on a national basis.
Doing so ensures a consistent, appropriate level of protection for
listed species, and avoids the need to continue developing procedures
on a case-by-case basis. These procedures are sufficiently flexible to
address the full range of circumstances that may arise in any
particular permit proceeding.
Under these procedures, EPA would ensure that States and Tribes, in
accordance with existing CWA requirements, provide copies of permits to
the Services for their review. The
[[Page 2746]]
EPA and the Services would work with the State or Tribe where EPA or
the Services believed a permit is likely to adversely affect a listed
species. EPA would coordinate with the Services and State or Tribe to
ensure that the permit complies with all applicable CWA requirements.
If the issue still cannot be resolved, the draft MOA states that EPA
may object to the State or Tribal permit if EPA determines the permit
is likely to adversely affect listed species and the permit is subject
to objection under section 402(d) of the CWA as being ``outside the
guidelines and requirements'' of that Act. If EPA determines, based on
analysis by EPA or the Services, that the permit is likely to
jeopardize the continued existence of the listed species, EPA will use
the full extent of its CWA authority to object to the permit.
EPA and the Services also plan to conduct a national programmatic
consultation on whether the establishment of these procedures is
sufficient to avoid the likely jeopardy of listed species due to
discharges authorized under State and Tribal NPDES programs. Because
these procedures can be applied to any State or Tribe that administers
the NPDES program, we believe that a single programmatic consultation
would be the most efficient means of ensuring that programs throughout
the country are protecting endangered and threatened species in
accordance with the requirements of the CWA. We anticipate that the
consultation will cover existing State and Tribal NPDES programs and
any program submitted after issuance of the biological opinion where
the agreed-upon coordination procedures will be followed.
EPA and the Services believe that this approach ensures that any
issues regarding listed species will be adequately addressed. We
recognize that the Congress intended administration of the NPDES
permitting program to be primarily the responsibility of States and
Tribes, with EPA playing only an oversight role in most instances. EPA
and the Services do not believe that the procedures contained in the
draft MOA would upset the CWA's carefully crafted balance between
Federal and State authorities. We anticipate that the need for EPA
objections to State and Tribal permits will continue to be rare. Where
EPA believes a permit is not in accordance with CWA requirements and
impacts to listed species are of serious concern, however, EPA is
committed to using its CWA authorities to ensure that listed species
are protected.
One comment on the July 1997 draft of the MOA asserted that the
``coordination'' called for in the draft MOA is, in fact, informal
consultation under section 7 of the ESA, with the possibility of formal
consultation to follow. ``Consultation'' under section 7(a)(2) of the
Endangered Species Act (ESA) is a process that imposes certain
procedural obligations on the Federal agency consulting with the
Services (see 50 CFR part 402). The MOA does not adopt those
procedures, but instead directs EPA and the Services to share
information and recommendations with each other and States and Tribes.
The draft MOA does not impose any obligations, procedural or otherwise,
on any State or Tribe, which would continue only to be required to meet
their procedural and substantive obligations under the CWA. The draft
MOA uses the word ``coordination'' precisely to make clear that the
section 7 consultation process is not being applied to State or Tribal-
issued NPDES permits.
One court case, American Forest and Paper Association v. EPA, 137
F.3d 291 (5th Cir. 1998) has addressed the scope of EPA's authority to
ensure protection of listed species in its approval and oversight of a
State NPDES program. In that case, EPA, the Services and the State of
Louisiana entered into Memoranda of Agreement describing the
coordination that would occur with regard to State NPDES permits. The
Court found, contrary to EPA's views, that EPA had required the State
of Louisiana to consult with the Services before issuing permits as a
condition for program approval. The Court held that EPA is not
authorized to add any requirements for a State permitting program
beyond the nine specific criteria enumerated in section 402(b) of the
CWA, and invalidated the endangered species coordination procedures.
While EPA believes that this case was wrongly decided, the
procedures in the draft MOA are within EPA's authorities under the AFPA
Court's reading of the CWA. First, unlike the Louisiana procedures, the
draft MOA is an agreement solely among Federal agencies. It would
impose no obligations or commitments on any State or Tribe
administering the NPDES program, nor would it place any conditions on
EPA's approval of NPDES programs, which would continue to be based on
the criteria enumerated in section 402(b) of the CWA. Moreover, unlike
some of the procedures agreed to in Louisiana, the draft MOA makes
clear that EPA would retain the ultimate authority for determining
whether to object to a State or Tribal permit, and that EPA would do so
pursuant to its authorities under the CWA.
Dated: December 9, 1998.
J. Charles Fox,
Assistant Administrator for Water, U.S. Environmental Protection
Agency.
Dated: January 7, 1999.
Donald J. Barry,
Assistant Secretary for Fish, Wildlife and Parks, U.S. Department of
the Interior.
Dated: December 15, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service, National Oceanic and Atmospheric Administration.
The text of the draft Memorandum of Agreement follows:
Draft Agreement Between the Environmental Protection Agency, Fish
and Wildlife Service, and National Marine Fisheries Service Regarding
Enhanced Coordination Under the Clean Water Act and the Endangered
Species Act.
Table of Contents
I. Purpose
II. Goals and Objectives
III. Guiding Principles
IV. Authorities
A. Fish and Wildlife Service and National Marine Fisheries
Service Authorities
B. Environmental Protection Agency Authorities
C. Reservation of Authorities
V. Provisions and Understandings
A. Procedures to Facilitate Interagency Cooperation
1. Local/Regional Coordinating Teams
2. Interagency Elevation Process
3. Oversight Panel
4. Sub-Agreements
5. Guidance/Training
B. Summary--Section 7 Consultation Process
1. Scope
2. Data and Information Requirements
3. Information Sharing
4. Effects of an Action
5. Biological Evaluation
6. Timeliness of Actions
7. EPA Responsibility at the Conclusion of Section 7
Consultation
8. Reinitiation of Formal Consultation
C. Proposed Species and Proposed Critical Habitat
D. Recovery Program
1. Conservation Recommendations to Assist Recovery
2. Recovery Planning
3. Recovery Implementation
E. Candidate Conservation Activities
VI. National Level Activities to Ensure Protection of Species
A. National Rule-making
B. Development of New Water Quality Criteria Methodological
Guidelines
C. National Consultation on CWA Section 304(a) Aquatic Life
Criteria
1. Overview
2. Procedures for Consultation
VII. Joint National Research and Data Gathering Plan and Priorities
[[Page 2747]]
A. Existing and New Water Quality Criteria
B. Work Group Report to Agreement Signatories
C. National Research and Data Gathering Plan
D. Consultation on State and Tribal Water Quality Standards
VIII. Consultation on Water Quality Standards Actions
A. Development of New or Revised State or Tribal Water Quality
Standards
1. Scoping of Issues to be Considered During the Triennial
Review Process
2. Development of State or Tribal Standards
3. Adoption and Submittal of State or Tribal Standards
4. EPA Develops Biological Evaluation
5. EPA Determination of ``No Effect'' or ``May Affect''
6. Services' Review of ``Not Likely to Adversely Affect''
Determination
7. Formal Consultation
8. EPA Action on State or Tribal Standards
B. Existing Water Quality Standards
C. Consultation on EPA Promulgation of State or Tribal Water
Quality Standards
IX. Permitting Program Activities
A. Programmatic Section 7 Consultation
B. Coordination Procedures Regarding Issuance of State or Tribal
Permits
C. Issuance of EPA Permits
D. Watershed Planning
X. Support in Administrative and Judicial Proceedings
XI. Revisions to Agreement
XII. Reservation of Agency Positions
XIII. Obligations of Funds, Commitment of Resources
XIV. Nature of Agreement
XV. Effective Date; Termination
XVI. Signatories
I. Purpose
This Agreement is designed (1) to improve coordination of the
agencies' compliance with the Endangered Species Act (ESA) for actions
authorized, funded, or carried out by EPA under sections 303(c) and 402
of the Clean Water Act (CWA), and (2) to provide clear and efficient
mechanisms for improved interagency cooperation, thereby enhancing
protection and promoting the recovery of threatened and endangered
species and their supporting ecosystems, and reducing the need for
future listing actions under the ESA. Throughout this Agreement,
``Service'' or ``Services'' shall refer to the Fish and Wildlife
Service (FWS) and/or National Marine Fisheries Service (NMFS), as
appropriate. In this Agreement ``States'' refers to States, Territories
and Commonwealths that qualify as States for the programs covered by
this Agreement.
II. Goals and Objectives
This Agreement is intended to accomplish the following:
--Use a team approach at the national, regional, and field office
levels to restore and protect watersheds and ecosystems to achieve the
goals of the ESA and CWA;
--Improve the framework for meeting responsibilities under section 7 of
the ESA;
--Enhance the existing process in place to protect and recover
Federally-listed and proposed species and the ecosystems on which they
depend;
--Improve methods for coordinating compliance with sections 303(c) and
402 of the CWA and section 7 of the ESA;
--Streamline the Federal agency coordination process to minimize the
regulatory burden, workload, and paperwork for all involved parties;
--Ensure a nationally consistent coordination process that allows
flexibility to deal with site-specific issues;
--Develop mechanisms for EPA participation in the development and
implementation of recovery plans for Federally-listed species
threatened by physical, chemical or biological impairment of waters of
the United States;
--Provide mechanisms for the Services' participation in development of
water quality criteria and standards recognizing any unique
requirements for listed and proposed species and designated and
proposed critical habitat;
--Identify a collaborative mechanism for planning and prioritizing
future CWA/ESA actions and resolving any potential conflicts or
disagreements through a structured time-sensitive process at the lowest
possible level within the agencies.
III. Guiding Principles
The ESA sets forth the goal of protecting and recovering threatened
and endangered species and the ecosystems upon which they depend. It
places responsibility on all Federal agencies, including EPA and the
Services, to meet that goal. The Clean Water Act (CWA) sets forth a
goal of restoring and maintaining the chemical, physical and biological
integrity of the Nation's waters. Sections 303(c) and 402 of the CWA
(as well as other provisions) are directed toward achieving this goal.
EPA and the Services find the goals of the CWA and ESA compatible
and complementary, and are entering into this Agreement to form a
partnership to enhance the realization of the goals of both Acts. This
partnership will also seek to efficiently and effectively fulfill the
requirements of section 7 of the ESA.
The primary principle underlying this Agreement is cooperative
partnership. The ESA requires the involvement of all Federal agencies
in the protection and recovery of our Nation's unique biological
resources. As a result of this Agreement, the signatory agencies will
better coordinate their efforts and will make it easier for the
regulated community and other partners to work with them in achieving
the purposes of the CWA and ESA.
While States and Tribes play a critical role in the administration
and implementation of sections 303(c) and 402 of the CWA, they are not
signatories to this agreement, which only applies to Federal actions
subject to section 7(a)(2) of the ESA. The Services and EPA remain
committed to working with the States and Tribes collaboratively at all
levels to ensure that both the CWA and ESA are implemented in a manner
that fulfills the goals of both statutes in a timely and efficient
manner.
IV. Authorities
A. Fish and Wildlife Service and National Marine Fisheries Service
Authorities
This Agreement relates to the following authorities of the
Services:
--Section 7 of the Endangered Species Act of 1973, as amended (16
U.S.C. 1531-1544).
B. Environmental Protection Agency Authorities
This Agreement relates to the following authorities of EPA:
--Sections 303(c), 304(a) and 402 of the Clean Water Act, as amended,
33 U.S.C. 1251-1387.
C. Reservation of Authorities
This Agreement does not modify existing Agency authorities by
reducing, expanding, or transferring any of the statutory or regulatory
authorities and responsibilities of any of the signatory agencies.
V. Provisions and Understandings
A. Procedures to Facilitate Interagency Cooperation
EPA and the Services intend to work cooperatively to achieve their
mutually shared objectives of protecting the quality of waters of the
United States and species that depend on those waters. To facilitate
collaboration among agency field and regional staff for planning and
prioritizing future CWA/ESA actions and resolving any potential
conflicts or disagreements through a structured, time-sensitive process
at the lowest possible level, the agencies will follow the coordination
and elevation procedures described below.
[[Page 2748]]
1. Local/Regional Coordinating Teams
The regional offices of EPA and the Services will establish
coordinating teams, including representation from field offices, to
foster early and recurring collaboration on various activities related
to the CWA and the ESA. These teams will, as appropriate:
a. Meet at least annually;
b. Identify upcoming workload requirements. This dialogue will
allow signatory agencies to become aware of and provide input on
upcoming activities such as annual work plans, triennial water quality
standards reviews, recovery plan preparation, proposed State or Tribal
program assumptions, proposed listings, or proposed habitat
conservation planning efforts;
c. Identify high priority areas of concern and opportunities for
cooperation.
d. Assist one another in determining which categories of NPDES
permits should be identified for review by EPA and the Services for
endangered species concerns, including waters of high concern in each
State that should be priorities for EPA oversight;
e. Identify current and future research needs and determine which
of these research needs are appropriate to convey to the research
coordinating committee and which are appropriate for local or regional
accomplishment;
f. Identify training needs; and
g. Identify ways to reduce the impacts of proposed agency actions
on endangered and threatened species.
Each of these local/regional coordinating teams should develop
mechanisms to facilitate streamlining of various work activities as
appropriate to the local circumstances. Such streamlining should
facilitate early exchange of information, early prioritization of
workload, and early identification of potential problems. Each local
group should develop mechanisms to work with States and Tribes, as
appropriate, concerning such things as candidate conservation
agreements, recovery planning, triennial reviews, and annual CWA
priorities. Local/regional coordinating teams may develop mechanisms to
involve other Federal agencies such as the U.S. Army Corps of
Engineers, the Forest Service, the Federal Energy Regulatory
Commission, and non-Federal stakeholders whose actions and interests
may impact the CWA/ESA issues.
2. Interagency Elevation Process
The following procedures shall be utilized to elevate any conflict
or disagreement between the agencies. While decisions by all levels,
including decisions to elevate, will be made by consensus to the
greatest extent practicable, any one agency can initiate the elevation
process. Each agency retains its statutory and regulatory authority to
make final decisions within its jurisdiction. Elevation should be
initiated so that all applicable deadlines may be met, taking into
account subsequent levels of review. In any elevation, the agencies
will jointly prepare an elevation document that will contain a joint
statement of facts and succinctly state each agency's position and
recommendations for resolution. If the agencies are aware of a dispute,
they will defer taking final action, where consistent with applicable
legal deadlines, to allow the issue to be resolved through the
elevation process.
The time periods specified below are intended to facilitate
expeditious resolution of the issues. These time periods should be
shortened when necessary for any agency to meet applicable legal
deadlines. The time periods begin to run on the date that the elevating
agency or agencies notify the next level of the elevation request. All
prescribed time frames in the elevation process can be waived by the
mutual consent of the participants at any level when the participants
believe that progress is being made and that resolution at that level
is still possible.
a. Level 1: The Level 1 review team consists of staff personnel
from EPA and FWS and/or NMFS. The overall goal is to design actions to
minimize adverse impacts to listed species by jointly working on
biological evaluations, concurrences and biological opinions for such
actions. General functions include those specified in section V.A.1.
Any contentious issues will be discussed with an attempt to resolve
them without elevation. If disputes cannot be resolved among the Level
1 team members, the issue will be raised with the Level 2 review team
as soon as possible.
b. Level 2: The Level 2 review team consists of field unit line
officers or staff supervisors, (i.e., for NMFS, branch/division chiefs;
for EPA, branch chiefs; and for FWS, field office supervisors). General
functions are to oversee and coordinate activities, including those
specified in section V.A.1.
The Level 2 team will make their best efforts to resolve any issues
elevated to them. Where resolution is not possible at this level, the
Level 2 team will elevate the issue to the Level 3 team no later than
14 days after notification by the Level 1 team, or sooner as agreed
upon or mandatory deadlines require.
c. Level 3: The Level 3 review team consists of all regional
executives (i.e., for NMFS and EPA, regional administrators; and for
FWS, regional directors). Their function is to resolve any elevated
disputes within 21 days of notification of elevation by Level 2 teams,
or sooner as necessary to meet mandatory deadlines, and serve as key
advisors on policy and process. If issues are not resolved by the Level
3 team, the issue will be elevated for Headquarters Review.
d. Headquarters Review: This review consists of the Director of
NMFS (Assistant Administrator for Fisheries, National Oceanic and
Atmospheric Administration, NOAA), the Director of FWS, and the Deputy
Assistant Administrator of Water at EPA or their representatives who
shall attempt to resolve disputes elevated by the regional executives.
Agency administrators shall attempt to issue a decision resolving the
issue within 21 days after elevation. Decisions will be binding upon
the agencies' field staffs. Agency administrators or their designees
shall make every attempt to resolve the dispute before elevation, where
necessary, to the Assistant Secretaries of the Departments of Interior/
Commerce and the Assistant Administrator of EPA. The responsible
Assistant Secretary(s) and Assistant Administrator shall resolve any
issues within 21 days of elevation. At this resolution level, the
decision must rest with the agency exercising the statutory or
regulatory authority in question.
3. Oversight Panel
The Oversight Panel consists of regional and headquarters personnel
from each individual agency. The panel provides oversight and
coordination for all aspects of this agreement. Its functions include,
but are not limited to:
(1) Maintaining and updating process guidance;
(2) Addressing issues about process implementation;
(3) Incorporating/identifying improvements and revisions into the
process;
(4) Convening interagency scientific/technical reviews, as
appropriate;
(5) Facilitating reaching consensus on particular issues at any
level upon requests by personnel at that level; and
(6) Reviewing and evaluating, at least on an annual basis, the
Agreement and its implementation by the three agencies.
4. Sub-Agreements
Regional and field level Federal sub-agreements further
implementing this Agreement may be executed by
[[Page 2749]]
appropriate EPA/Services programs. Any such sub-agreements which
clarify roles, procedures, and responsibilities are encouraged. This
includes any efforts to protect species and water quality on a
watershed or ecosystem basis. Sub-agreements must be consistent with
this Agreement and must be approved by Regional offices and reviewed by
Headquarters.
5. Guidance/Training
EPA and the Services will hold joint training sessions with
regional and field staff to facilitate staff's understanding and
implementation of the Agreement, with a goal of providing such training
to all relevant personnel within eighteen months. The agencies may
issue guidance individually or jointly to assist in carrying out this
Agreement.
B. Summary--Section 7 Consultation Process
1. Scope
The regulations that interpret and implement section 7 of the ESA
establish a framework for efficient and consistent consultation between
Federal agencies regarding listed species and critical habitat.
2. Data and Information Requirements
EPA agrees to include in any biological assessment or evaluation
the best available scientific and commercial information. EPA and the
Services will exercise their scientific judgment to determine the
relevance and validity of the available scientific and commercial
information. The Level 1 review teams will provide a venue for
collaborating among the agencies on these issues.
3. Information Sharing
The Services will initially provide EPA with a consolidated list of
Federally-listed and proposed species and designated and proposed
critical habitat by State. The Services agree to provide to EPA any
additions of species or other relevant information as proposed or final
rule-making occurs. EPA will provide and update copies of Federal
section 304(a) water quality criteria and applicable State and Tribal
water quality standards to the Services.
EPA and the Services will share information and analyses used to
make decisions under this Agreement when requested, including analyses
supporting biological evaluations and biological opinions. The Services
will provide to EPA copies of all draft jeopardy biological opinions
and draft no jeopardy biological opinions with incidental take
statements, unless EPA specifically requests that a draft not be
provided.
4. Effects of an Action
All ``effects of the action'' and ``cumulative effects'' will be
considered in the Service's biological opinions (50 CFR 402.14(c),
402.14(g) (3) and (4), and 402.14(h)). The ``effects of an action''
include all direct as well as indirect effects that are reasonably
certain to occur, even at a later time. Effects of an action include
effects of interrelated and interdependent actions associated with the
proposed action in question. Cumulative effects include future State or
Tribal and private actions that are reasonably certain to occur in the
action area that do not involve Federal activities. Water quality
criteria and State or Tribal water quality standards establish levels
of pollutants from all sources, and so would account for all such
effects insofar as water quality is concerned. Since NPDES permits are
established to achieve water quality standards, they will account for
point source effects insofar as water quality is concerned.
5. Biological Evaluation
Although section 7(c) of the ESA refers to a biological assessment
as an element of the consultation process, a biological assessment is
required only in the case of a major construction activity, as defined
at 50 CFR 402.02. The purpose of a biological assessment is to enable
an agency to determine whether a proposed action is likely to adversely
affect Federally-listed species and designated critical habitat. A
biological assessment also assists an agency in complying with
potential ESA ``conference'' requirements for proposed species and
critical habitat under 50 CFR 402.10. For EPA actions that are not
major construction activities, an alternative document that may be used
for decision-making is a biological evaluation. While a biological
evaluation is not required by regulation, EPA will develop such an
evaluation where the Agency determines it would be appropriate for
determining whether listed species may be affected by the proposed
action and for assisting consultation with the Services. The Services
recognize that the content and format of the biological evaluation are
to be determined by EPA.
A biological evaluation is an analysis of the potential effects of
a proposed action on listed species or their critical habitat based
upon the best available scientific or commercial information. The
biological evaluation will vary in extent and rigor according to the
certainty and severity of an action's deleterious effect. For example,
a biological evaluation may be very brief if the expected result of an
action is straightforward, is beneficial, or is of little or no
consequence. If, on the other hand, the potential effects are severe,
large in scope, complex or uncertain in terms of outcome, the analysis
would need to be more extensive and rigorous.
A biological evaluation can be used for decision-making prior to
and throughout section 7 consultation and for a possible conference on
proposed species or critical habitat. The evaluation can be used to
make a ``may effect'' or ``no effect'' determination, or to support a
judgment that the proposed action is or is not likely to adversely
affect listed species or their critical habitat.
If early or formal consultation is initiated, a biological
evaluation or biological assessment can be used by the appropriate
Service in rendering a preliminary or final biological opinion.
6. Timeliness of Actions
In informal and formal consultation, EPA and the Services agree to
adhere to time frames set forth in 50 CFR part 402 and supplemental
guidance provided in this Agreement, in order to enable EPA to meet
statutory and regulatory deadlines under the CWA. EPA will strive to
provide advance notice to the Services concerning anticipated
consultations, to provide thorough biological evaluations, to comment
promptly on draft opinions and to provide, where appropriate,
additional available information requested by the Services.
If during informal consultation EPA determines that the action is
not likely to adversely affect listed species or critical habitat, then
EPA will notify the Service in writing. The Service will respond in
writing within 30 days of receipt of such a determination, unless
extended by mutual agreement. The response will state whether the
Service concurs or does not concur with EPA's determination. If the
Service does not concur, it will provide a written explanation that
includes the species and/or habitat of concern, the perceived adverse
effects, supporting information, and a basic rationale.
The Services may request that EPA initiate consultation on a
Federal action. The Services do not have the authority, however, to
require the initiation of consultation. The Services' written
explanation of the request shall include the species and/or critical
habitat of concern, manner in which there may be an effect, supporting
information, and a basic rationale.
The Services will strive to issue biological opinions within 90
days of an initiation of formal consultation unless
[[Page 2750]]
the Services and EPA agree to extend the consultation period. The
timing of activities during consultation may be further expedited as
necessary taking into account legal deadlines for EPA action and the
agencies' programmatic needs. EPA, where appropriate, will enter into
early consultation with the Services in order to ensure that EPA meets
its statutory CWA deadlines for decision-making. In addition, EPA and
the Services agree to make every effort to provide prompt and
responsive communications to ensure States, Tribes, and permit
applicants do not suffer undue procedural delays.
7. EPA Responsibility at the Conclusion of Section 7 Consultation
Following issuance of a biological opinion, EPA will determine
whether and in what manner to proceed with the action in light of its
CWA and section 7 obligations. If a jeopardy opinion is issued, EPA
will notify the Services of its final decision on the action.
8. Reinitiation of Formal Consultation
The section 7 regulations define conditions under which EPA or the
Services will request reinitiation of formal consultation at 50 CFR
402.16. The Services and EPA will work cooperatively to evaluate any
new information to determine if reinitiation is necessary.
C. Proposed Species and Proposed Critical Habitat
The Services will identify proposed species and proposed critical
habitat to EPA Regional offices. EPA will evaluate any CWA activities
it authorizes, funds, or carries out that are subject to section 7 and
determine if they are likely to jeopardize proposed species or result
in the destruction or adverse modification of proposed critical
habitat. If so, EPA will confer with the Services using the procedures
under 50 CFR 402.10. The Services may also initiate a request for
conference on a particular action.
D. Recovery Program
Section 7(a)(1) of the ESA provides that Federal agencies shall
utilize their authorities in furtherance of the purposes of the ESA by
carrying out programs for the conservation and recovery of threatened
and endangered species. Section 7 consultation and the recovery
planning and implementation process are two primary mechanisms that EPA
can use as guides to identify actions that EPA or the Services believe
are needed to protect and recover Federally-listed species.
1. Conservation Recommendations to Assist Recovery
The section 7 consultation process is primarily intended to ensure
that EPA's actions are not likely to jeopardize the continued existence
of Federally-listed species or adversely modify their critical habitat.
However, biological opinions may contain discretionary conservation
recommendations to promote the recovery of the subject species. (50 CFR
402.02 defines conservation recommendations as suggestions of the
Services regarding the development of information or discretionary
measures to minimize or avoid adverse effects of a proposed action on
listed species or critical habitat.) Implementation of these
conservation recommendations would help conserve and recover listed
species.
Frequent and informal contact between the Services and EPA is
encouraged during all stages in the development of conservation
recommendations. During section 7 consultation, the Services will work
closely with EPA to identify conservation recommendations and evaluate
the feasibility of their implementation.
2. Recovery Planning
Recovery plans are developed in three stages: (a) Technical drafts
that are intended to provide agencies an opportunity to assist the
Services in developing biologically sound recovery plans; (b) Agency
drafts which outline the various tasks the Services feel may be within
the jurisdiction of other agencies and are circulated for public
comment (the Technical and Agency Draft are sometimes combined into one
document to save time); and (c) the final plan.
The Services will invite EPA to serve as members of Recovery Teams
where water quality is a concern or EPA has particular expertise,
provide to EPA copies of all draft recovery plans that contain water
quality related recovery tasks, and actively solicit EPA's involvement
during all phases of recovery plan development. The Services will also
solicit State or Tribal involvement, where appropriate. EPA will
provide the Services with comments related to water quality threats,
recovery issues, and will suggest areas where plans could be modified
to include specific actions to support the species recovery effort.
3. Recovery Implementation
EPA and the Services will hold recovery planning/implementation
discussions or meetings, on at least an annual basis. The members of
this group and the geographic area covered by this group will vary
among Regions, depending on the geographic range and number of species
impacted by water quality. The meetings could be organized on a
watershed or ecosystem basis and involve field and/or Regional
personnel. These groups will discuss current and upcoming water
quality/listed species related activities, and provide input for
prioritizing watersheds (e.g., the number of listed species, the
seriousness of threats, and the opportunities for conservation/recovery
success) for potential future coordinated activities.
E. Candidate Conservation Activities
The Services and EPA will develop watershed and ecosystem based
initiatives to identify and remove those conditions that may lead to
future listings. Efforts should focus on candidate species and other
species of concern and their associated ecosystems. The local/regional
coordinating teams will identify specific focus areas.
VI. National Level Activities to Ensure Protection of Species
EPA will take the following steps at the national level to ensure
that State and Tribal permitting programs and water quality standards
provide protection for endangered and threatened species.
A. National Rule-making
EPA will propose amendments to its national water quality standards
regulations (40 CFR part 131) to include provisions to ensure the
protection of endangered and threatened species within 24 months
following the execution of this Agreement. EPA will propose to require
that water quality not likely jeopardize the continued existence of
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat, including a
prohibition of mixing zones or variances that would be likely to cause
jeopardy, and a requirement that States or Tribes adopt site-specific
water quality criteria (tailored to the geographic range of the species
of concern) where determined to be necessary to avoid a likelihood of
jeopardy.
After consideration of public comment, EPA will adopt appropriate
provisions in a final regulation.
[[Page 2751]]
B. Development of New Water Quality Criteria Methodological Guidelines
EPA will continue to invite the Services to be represented on EPA's
Aquatic Life Criteria Guidelines Committee. EPA has charged this
committee with revising and updating EPA's methodological guidelines
for issuance of new 304(a) water quality criteria guidance values. As
members of the committee, the Services and EPA will ensure that these
methodological guidelines take into account the need to protect
Federally-listed species. The Services will assist EPA to (1) develop
and have peer reviewed a list of surrogate and target endangered and
threatened species that could be used in pollutant toxicity testing and
(2) assist in the development of biocriteria for streams, rivers,
lakes, wetlands, estuaries or marine waters that contain endangered and
threatened species or designated critical habitat.
These methodological guidelines are subject to peer review, public
notice and comment prior to being finalized. Prior to the public
comment period, the Directors will provide the Services' views
regarding the guidelines so that the public will have the benefit of
the Services' views during the comment period. The Services will also
be invited to participate in the peer review process for the
development of new criteria values under section 304(a), and will
designate technical experts to provide the Services' views during the
peer review process.
C. National Consultation on CWA Section 304(a) Aquatic Life Criteria
1. Overview
Under section 304(a) of the CWA, EPA from time to time publishes
water quality criteria that serve as scientific guidance to be used by
States or Tribes in establishing and revising water quality standards.
These criteria are not enforceable requirements, but are recommended
criteria levels that States or Tribes may adopt as part of their
legally enforceable water quality standards. States or Tribes may,
however, adopt other scientifically defensible criteria in lieu of
EPA's recommended criteria (see 40 CFR 131.11(b)). EPA has to date
published criteria for the protection of aquatic life for 45
pollutants. EPA has developed an interim-final ``Water Quality Criteria
and Standards Plan'' (EPA, June 1998) to guide the development and
implementation of new or modified 304(a) criteria in the coming years.
The objective of EPA's criteria program is to provide scientific
information to States and Tribes that will best facilitate the overall
protection of the aquatic ecosystem. A better understanding of the
effects of water pollution on endangered and threatened species will
help achieve this objective. Therefore, EPA and the Services will
conduct a section 7 consultation on the aquatic life criteria to assess
the effect of the criteria on listed species and designated critical
habitat. EPA and the Services will also conduct a conference regarding
species proposed for listing and proposed designated critical habitat.
EPA will consider the results of this consultation as it implements and
refines its criteria program, including decisions regarding the
relative priorities of revising existing criteria and developing new
criteria.
EPA and the Services have gained considerable experience in
evaluating the potential effects on endangered and threatened species
of pollutants for which EPA has published recommended aquatic life
criteria under section 304(a) of the CWA. For example, the Services
have issued biological opinions as a result of section 7 consultations
on aquatic life criteria approved by EPA in water quality standards
adopted by the States of New Jersey, Alabama, and Arizona, and
promulgated by EPA for the Great Lakes Basin. EPA is currently
conducting consultation with the Services regarding aquatic life
criteria being promulgated by EPA for toxic pollutants for certain
waters in California. These opinions have evaluated (or are evaluating)
the effects of criteria pollutants on 87 aquatic species, which
constitute approximately 42% of listed aquatic species in the country.
Grouped by taxonomic family, these consultations have evaluated the
effects of criteria pollutants on one or more species in approximately
65% of those families to which listed aquatic species belong. In
addition to these comprehensive formal consultations, EPA and the
Services have also conducted informal consultations on State water
quality standards approval actions which have covered water quality
criteria contained in the standards.
EPA and the Services recognize, however, that conducting
consultations on a State-by-State basis is not the most efficient
approach to evaluating the effects of water pollution on endangered and
threatened species throughout the country. A national consultation will
ensure a consistent approach to evaluating the effects of pollutants on
species and identifying measures that may be needed to better protect
them. A national consultation will also ensure better consideration of
effects on species whose ranges cross State boundaries.
2. Procedures for Consultation
The consultation will be conducted in accordance with the
procedures in 50 CFR part 402 and the guidance contained in the
Services' Consultation Handbook. EPA and the Services also anticipate
that the consultation will follow the basic approach described below.
The agencies will endeavor to streamline their processes to complete
this consultation within eighteen months.
EPA and the Services anticipate that the national consultation will
focus on aquatic and aquatic-dependent species. The consultation will
be conducted on a national basis, and therefore, will not be waterbody-
specific. In addition, given the numbers of species involved in the
consultation, the effects on species will be evaluated to the maximum
extent possible based on groupings of species believed to be affected
in a similar manner.
The agencies will take a collaborative approach to evaluating the
effects of the criteria pollutants on listed species, and joint teams
will be established to conduct the consultation. With input from the
Services, EPA will prepare a biological evaluation based on the best
scientific and commercial data available, and will provide a rationale
for any findings regarding the effects of the criteria pollutants on
listed species. EPA will make ``effects determinations'' based on the
direct and indirect effects of the 45 pollutants on listed species. EPA
will evaluate the effects of pollutants on species in the water column
based upon the available toxicological data, principally the data
assembled in EPA's criteria development documents as well any more
recent toxicological information. EPA will consider other exposure
scenarios to aquatic and aquatic-dependent species and provide
available information to the Services.
The Services will work collaboratively with EPA in developing their
biological opinion, including the development of any reasonable and
prudent measures or alternatives to minimize anticipated incidental
take or to avoid likely jeopardy to listed species or adverse
modification or destruction of designated critical habitat. Any
reasonable and prudent measures or alternatives that identify research
needs will be mutually developed and will reflect priorities
established by the national research and data gathering plan. Should
the opinion call for revisions to existing criteria or issuance of new
criteria, the opinion will recognize EPA's practice of subjecting new
or revised criteria to public notice
[[Page 2752]]
and comment and external peer review prior to being finalized. EPA
believes that the existing criteria provide a significant degree of
protection for the aquatic ecosystem (including listed species). The
agencies agree that, until any revisions of criteria are completed, the
agencies will, to the maximum extent practicable, maintain the status
quo by continuing to implement such criteria in water quality standards
programs prior to revisions to the criteria.
Because the effects of the criteria pollutants on certain listed
species have already been evaluated in biological opinions issued by
the Services, the agencies will rely upon the scientific information
and conclusions in those consultations to the maximum extent possible.
Such prior opinions will remain in effect unless consultation is
reinitiated.
The national consultation will provide section 7 coverage for any
water quality criteria included in State or Tribal water quality
standards approved, or Federal water quality standards promulgated, by
EPA that are identical to or more stringent than the recommended
section 304(a) criteria. Therefore, separate consultation on such
criteria will not be necessary, subject to requirements related to
reinitiation of consultation under 50 CFR 402.16. If, during the
national consultation, EPA proposes to take an action approving or
promulgating numeric standards that are identical to or more stringent
than the existing 304(a) criteria, such action will be covered by the
national consultation. EPA and the Services agree that EPA may proceed
with its action pending the conclusion of the national consultation.
EPA will ensure that its action does not have the effect of foreclosing
the formulation or implementation of any reasonable and prudent
alternatives in the national consultation by stating that EPA's action
is subject to revision based on the results of the consultation.
VII. Joint National Research and Data Gathering Plan and Priorities
EPA and the Services will convene a work group of scientific and
technical personnel to develop a research and data gathering plan that
supports water quality standards protective of species of concern and
the ecosystems they inhabit. The goal of the plan is to identify high
priority data and information needed to reduce uncertainty concerning
the degree to which water quality criteria and permits are protective
of endangered or threatened species. The plan also recognizes the
agencies' joint interest in, and responsibility for, funding and
conducting research related to endangered and threatened species. The
information gathered as a result of this joint plan and the national
consultation will be used by EPA in the revision or development of
national 304(a) water quality criteria, in review of State and Tribal
water quality standards, and the evaluation of permits. Similarly, the
Services will use this information in assessing threats and minimizing
adverse effects to listed species. The agencies agree that the plan
should be completed, if possible, within eighteen months of the signing
of this Agreement.
The work group will primarily be concerned with three tasks: (1)
development of the research plan, including the components identified
below; (2) evaluating and prioritizing research or data gathering needs
identified in consultations on EPA's review of specific State and
Tribal water quality standards; and (3) overseeing and coordinating the
implementation of the national research/data gathering plan.
A. Existing and New Water Quality Criteria
The national research work group will identify those CWA section
304(a) aquatic life criteria that are the highest priority candidates
for additional research based on issues identified in consultations on
State and Tribal water quality standards and the national consultation
on the aquatic life 304(a) criteria published by EPA under section
304(a) of the CWA.
The work group will also identify the highest priority areas for
the development of new national 304(a) water quality criteria to
protect listed species. The work group will take into account new
criteria development needs identified in consultations on State and
Tribal water quality standards including, in particular, the priority
to be given to the development of wildlife criteria for areas where
such criteria have not been developed (i.e., outside the Great Lakes
Basin).
B. Work Group Report to Agreement Signatories
Within one year of signing this Agreement, the work group will
submit a comprehensive report to the signatories of this Agreement (or
their successors) that (1) summarizes the range of research options
considered by the work group; (2) makes recommendations regarding
priority research and data gathering undertakings for existing and new
water quality criteria; (3) describes the recommended additional
research; (4) estimates the likely cost of the research; (5) evaluates
available funding for completing the research; and (6) establishes a
specific time frame for completing the research and data gathering.
C. National Research and Data Gathering Plan
After taking into account the recommendations of the work group,
the signatories of this Agreement (or their successors) will adopt a
national research and data gathering plan within eighteen months of the
signing of this Agreement. The plan will identify near-term (1-5 years)
priorities reflecting the highest priorities identified by the agencies
that can be accomplished with available and anticipated funding
sources. The plan will also identify longer term (5-10 years)
priorities. The agencies will work to incorporate the plan into their
respective budgets, and to achieve economies of scale and increased
effectiveness in the use of limited funds by coordinating efforts
wherever possible. The agencies will also work to coordinate the plan
with the White House-sponsored Committee on the Environment and Natural
Resources.
D. Consultation on State and Tribal Water Quality Standards
On an ongoing basis, the work group will provide expertise and
assistance to the field/regional offices regarding research/data
gathering issues raised in consultations on State and Tribal water
quality standards. Where such consultations identify significant
research/data gathering priorities, those priorities will be forwarded
for evaluation by the work group. With input from the regional/field
offices, the work group will determine the priority of such research
and data gathering in relation to other needs contained in the national
plan. This process will enable the agencies to rationally allocate
their resources as new research/data gathering needs arise.
VIII. Consultation on Water Quality Standards Actions
A. Development of New or Revised State or Tribal Water Quality
Standards
EPA will communicate and, where required under section 7 of the
ESA, consult with the Services on new or revised State or Tribal water
quality standards and implementing procedures that are subject to EPA
review and approval under section 303(c) of the CWA.
If a State or Tribe requests, or upon mutual agreement, EPA may, by
[[Page 2753]]
notifying the appropriate Service(s) in writing, designate a State or
Tribe to serve as a non-Federal representative to conduct informal
consultation in accordance with 50 CFR 402.08.
1. Scoping of Issues To Be Considered During the Triennial Review
Process
Section 303(c) of the CWA requires States to adopt and revise
standards at least on a triennial basis. The Services and EPA recognize
that to accomplish timely implementation of standards that may affect
Federally-listed species and designated critical habitat, early
involvement and technical assistance by the Services is needed. In an
effort to facilitate collaboration and the consultation process, EPA
regional offices will provide the Services annually with a list of all
upcoming scheduled triennial reviews for the next 5 year period.
The Services will participate in a meeting with EPA and the State
or Tribe to discuss the extent of an upcoming review. EPA will take the
lead to schedule the meeting near the start of the triennial review
process.
2. Development of State or Tribal Standards
EPA will seek the technical assistance and comments of the Services
during a State's or Tribe's development of water quality standards and
related policies. The Services will provide the States or Tribes and
EPA with information on Federally-listed species, proposed species and
proposed critical habitat, and designated critical habitat in the State
or on Tribal lands. EPA will provide assistance to the Services in
obtaining descriptions of pollutants and causes of water quality
problems within a watershed or ecosystem. The Services will work
cooperatively with the States or Tribes to identify any concerns the
Services may have and how to address those concerns. EPA will request
the Services to review and comment on draft standards, and to
participate in meetings with States or Tribes as appropriate. EPA will
indicate which of these requests are of high priority, and the Services
will make every effort to be responsive to these requests.
Where appropriate, EPA and the Services will encourage the State or
Tribe to adopt special protective designations where listed or proposed
threatened or endangered species are present or critical habitat is
designated or proposed.
EPA will initiate discussions with the Services if there is a
concern that a draft State or Tribal standard or relevant policy may
impact Federally-listed species or critical habitat.
3. Adoption and Submittal of State or Tribal Standards
States or Tribes adopt new and revised standards and implementing
policies from time to time as well as at the conclusion of the
triennial review period.
After the final action adopting the standards, the State or Tribe
sends its adopted and effective standards to EPA. Once received, EPA is
required by the CWA to approve the standards within 60 days or
disapprove them within 90 days. Section 7 consultation is required if
EPA determines that its approval of any of the standards may affect
listed species or designated critical habitat. The time periods
established by the CWA require that EPA and the Services work
effectively together to complete any needed consultation on a State's
or Tribe's standards quickly. In order to provide enough time for
consultation with the Services where the approval may affect endangered
or threatened species, EPA will work with the State or Tribe with the
goal of providing to the Services a final draft of the new or revised
water quality standards 90 days prior to the State's or Tribe's
expected submission of the standards to EPA. When needed, EPA will
prepare a biological evaluation based on the final draft and, where
appropriate, request formal consultation. The Services agree to consult
on the final draft, and to accommodate minor revisions in the standards
that may occur during the State's or Tribe's adoption process. The
Services will make every effort to complete consultation and delivery
of a final biological opinion within 90 days, or on a schedule agreed
upon with the EPA Regional Office.
4. EPA Develops Biological Evaluation
When needed, EPA will develop a biological evaluation to analyze
the potential effect of any new or revised State or Tribe adopted
standards that may affect Federally-listed species or critical habitat.
5. EPA Determination of ``No Effect'' or ``May Affect''
EPA will evaluate proposed new or revised standards and use any
biological evaluation or other information to determine if the new or
revised standards ``may affect'' a listed species or critical habitat.
For those standards where EPA determines that there is ``no effect,''
EPA may record the determination for its files and no consultation is
required. Although not required by section 7 of the ESA for actions
that are not major construction activities as defined by 50 CFR 402.02,
EPA will share any biological evaluation, ``no effect'' determination,
and supporting documentation used to make a ``no effect'' determination
with the Services upon request.
If EPA decides that the new or revised water quality standards
``may affect'' a listed species, then EPA will enter into informal
consultation (unless EPA decides to proceed directly to formal
consultation) to determine whether the standards are likely to
adversely affect Federally-listed species or critical habitat. If EPA
determines that the species or critical habitat is not likely to be
adversely affected, EPA will request the Service to concur with its
finding.
Where EPA finds that a species or critical habitat is likely to be
adversely affected, EPA will consider, and the Services may suggest,
modifications to the standards(s) or other appropriate actions which
would avoid the likelihood of adverse effects to listed species or
critical habitat. If the likelihood of adverse effects cannot be
avoided during informal consultation, then EPA will initiate formal
consultation with the Service or EPA may choose to disapprove the
standard. In addition, if EPA finds that a proposed species is likely
to be jeopardized or proposed critical habitat adversely modified by
EPA approval of a new or revised State or Tribal standard, EPA will
confer with the Services under 50 CFR 402.10.
6. Services' Review of ``Not Likely to Adversely Affect'' Determination
Within 30 days after EPA submits a ``not likely to adversely
affect'' determination, the Services will provide EPA with a written
response on whether they concur with EPA's findings. The Services will
provide EPA with one of the three following types of written responses:
1) concurrence with EPA's determination (this would conclude
consultation), 2) non-concurrence with EPA's determination and, if the
Service cannot identify the specific ways to avoid adverse effects, a
request that EPA enter into formal section 7 consultation (see 7
below), or 3) a request that EPA provide further information on their
determination. If it is not practicable for EPA to provide further
information, the Services will make a decision based on the best
available scientific and commercial information.
7. Formal Consultation
Formal consultation on new or revised standards adopted by a State
or Tribe will begin on the date the Services and EPA jointly agree that
the information provided is sufficient to initiate consultation under
50 CFR
[[Page 2754]]
402.14(c). The consultation will be based on the information supplied
by EPA in any biological evaluation and other relevant information that
is available or which can practicably be obtained during the
consultation period (see 50 CFR 402.14 (d) and (f)).
If the Service anticipates that incidental take will occur, the
Service's biological opinion will provide an incidental take statement
that will normally contain reasonable and prudent measures to minimize
such take, and terms and conditions to implement those measures.
Reasonable and prudent measures can include actions that involve only
minor changes to the proposed action, and reduce the level of take
associated with project activities. These measures should minimize the
impacts of incidental take to the extent reasonable and prudent.
Measures are considered reasonable and prudent when they are consistent
with the proposed action's basic design, location, scope, duration, and
timing. The test for reasonableness is whether the proposed measure
would cause more than a minor change to the proposed action. 50 CFR
402.14(I)(2).
Appropriate minor changes can include, for example, a condition
stating that the EPA Regional Office will work with the State or Tribe
to obtain revisions to the water quality standards in the next
triennial review. Where either of the Services believe that there is a
need for the standards to be revised more quickly, the Service should
work with EPA and the State or Tribe to determine whether any revisions
could be developed more quickly than the next anticipated triennial
review. Because reasonable and prudent measures should not exceed the
scope of EPA actions, reasonable and prudent measures in a water
quality standards consultation should not impose requirements on other
CWA programs unless agreed to by both EPA and the Service(s).
The Services may include research or data gathering undertakings as
conditions of an incidental take statement contained in a biological
opinion where it determines that the way to minimize future incidental
take is through research and data gathering. However, to the maximum
extent possible, the Services will work with EPA to identify research
needs that will be addressed in the National Research and Data
Gathering Plan. The Plan identifies high priority data and information
needed to reduce the uncertainty inherent in the degree to which water
quality criteria would protect listed species. Research and data
identified in the Plan has the goal of minimizing any incidental take
associated with water quality standards.
Where site specific research or data are needed that are not
addressed in the National Plan, the biological opinion will explain how
the research or data gathering will minimize such take while not
altering the basic design, location, scope, duration, or timing of the
action.
Where a regional EPA office finds that it is not practicable to
complete the research or data gathering requested in the draft opinion,
but the Services believe that inclusion of the research condition is
important to minimizing incidental take, the Services may elevate the
issue in accordance with the procedures in section V.A. of this
Agreement. During the elevation process, the agencies will evaluate the
need for the research identified by the Service in the water quality
standards consultation in light of available resources and the National
Plan.
Reasonable and prudent measures and terms and conditions should be
developed in close coordination with the EPA and the State or Tribe, to
ensure that the measures are reasonable, that they cause only minor
changes to the proposed action, and that they are within the legal
authority and jurisdiction of the Agency to carry out. If the
Service(s), EPA, and the States or Tribe cannot reach agreement on
appropriate reasonable and prudent measures or terms and conditions at
the level the consultation is being conducted, the decision can be
elevated by the procedures discussed in section V.A.
As a general matter, EPA disapproval of a State or Tribal water
quality standard is not a minor undertaking because it triggers a legal
duty on the part of EPA to initiate promptly Federal rule-making unless
the State or Tribe revises the standard within 90 days (see CWA
303(c)(3) and (4)). Where the Services and EPA agree, however,
disapproval of a State or Tribal water quality standard may be included
as a condition of incidental take authorization.
The Services will issue a biological opinion that concludes whether
any Federally-listed species are likely to be jeopardized or critical
habitat adversely modified or destroyed by the State or Tribe's new or
revised water quality standards. If either of the Services makes a
jeopardy or adverse modification finding, it will identify any
available reasonable and prudent alternatives, which may include, but
are not limited to, those specified below. EPA will notify the Service
of its final decision on the action.
Some possible ideas for development of specific reasonable and
prudent alternatives:
a. EPA coordinates with the State or Tribe to adopt (or revise)
water quality standards necessary to remove the jeopardy situation.
b. EPA disapproves relevant portions of the State or Tribe's
adopted standards (see 40 CFR 131.21) and initiates promulgation of
Federal standards for the relevant water body (see 40 CFR 131.22).
Where appropriate, EPA would promulgate such standards on an expedited
basis.
c. Using its authority under section 303(c)(4)(B) of the CWA, EPA
promulgates Federal standards as necessary.
8. EPA Action on State or Tribal Standards
After reviewing the biological opinion, EPA will inform the Service
of its intended action.
B. Existing Water Quality Standards
If the Services present information to EPA, or EPA otherwise has
information supporting a determination that existing State or Tribal
water quality standards are not adequate to avoid jeopardizing
endangered or threatened Federally-listed species or adversely
modifying critical habitat or for protecting and propagating fish,
shellfish and wildlife, EPA will work with the State or Tribe in the
context of its triennial review process to obtain revisions in the
State or Tribal standards. Such revisions could include, where
appropriate, adoption of site-specific water quality standards tailored
to the geographic range of the species of concern. If a State or Tribe
does not make such revisions, the EPA regional office will recommend to
the EPA Administrator that a finding be made under section 303(c)(4)(B)
of the CWA that the revisions are necessary.
EPA will engage in section 7 consultation to ensure that any
revisions to the existing standards are not likely to jeopardize the
continued existence of endangered or threatened species or result in
the destruction or adverse modification of designated critical habitat
and to minimize any anticipated incidental take. If EPA and the
Services disagree regarding the need for revisions in the State or
Tribal standards, the issue may be elevated. Consultation will be
consistent with the provisions of 50 CFR 402 and part A above.
C. Consultation on EPA Promulgation of State or Tribal Water Quality
Standards
EPA promulgation of State or Tribal water quality standards is a
Federal
[[Page 2755]]
rule-making process and EPA will comply with the consultation
requirements of section 7 of the ESA with any promulgation.
IX. Permitting Program Activities
This Agreement establishes a framework for coordinating actions by
EPA and the Services for activities under the CWA section 402. These
activities are: (1) EPA approval of State or Tribal permitting
programs, (2) EPA review of permits issued by States or Tribes with
approved permitting programs, and (3) EPA issuance of permits under
section 402 of the CWA.
A. Programmatic Section 7 Consultation
EPA and the Services will conduct a national programmatic
consultation on whether the establishment of the procedures identified
in section IX.B below is sufficient to avoid the likely jeopardy of
listed species due to discharges authorized under State and Tribal
NPDES programs. The consultation will be conducted in accordance with
the procedures in 50 CFR part 402 and the guidance contained in the
Services' Consultation Handbook.
In its consultation request, EPA will provide the Services with a
description of the CWA requirements applicable to the State and Tribal
programs and EPA's program oversight authorities that are proposed to
ensure that species will be protected, including the identification of
State or Tribal water quality standards that ensure the protection of
endangered and threatened species.
If the Services anticipate that State/Tribal NPDES permits would
cause incidental take of listed species, the agencies anticipate that
the Services' opinion will authorize such take, except where the
Service believes that the adverse effects of a permit are more than
minor and, after elevation to headquarters, EPA chooses not to object
to the permit under its CWA authorities. The Services anticipate that
any incidental take authorization will apply to discharges authorized
under permits issued after issuance of the biological opinion.
The agencies anticipate that the Services' biological opinion will
cover all existing State/Tribal NPDES programs and any State/Tribal
program submitted after issuance of the biological opinion where EPA
makes a written commitment to follow coordination procedures that the
Services agree are consistent with the procedures contained in the
biological opinion on the national consultation. The agencies will
determine whether the opinion should also cover existing NPDES programs
that have been subject to section 7 consultation.
As new species are added to the list of threatened and endangered
species, the Services will evaluate the impact of State or Tribal
program assumption on the new species and determine whether
reinitiation of consultation is warranted.
B. Coordination Procedures Regarding Issuance of State or Tribal
Permits
EPA has authority and responsibility for overseeing the operation
of State/Tribal NPDES programs through, among other means, review of
State/Tribal NPDES permits where appropriate. EPA's oversight includes
consideration of the impact of permitted discharges on waters and
species that depend on those waters. EPA does this by determining
whether State or Tribal permits indeed attain water quality standards.
The procedures outlined below are designed to assist EPA in fulfilling
these CWA oversight responsibilities.
EPA and the Services agree to follow the coordination procedures
below with regard to EPA review of State or Tribal permits in all
existing and new permitting programs approved by EPA under section 402
of the CWA. Procedures and time lines for EPA review and objection to
State or Tribal permits are established by statute and regulation. See
CWA section 402(d); 40 CFR 123.44. Where EPA determines that exercise
of its objection authority is appropriate to protect endangered and
threatened species, the Agency will act pursuant to its existing
authorities under the CWA (i.e., where the proposed permit would be
``outside the guidelines and requirements'' of the CWA. See CWA
402(d)(2)). EPA and the Services will follow the coordination
procedures below in a manner consistent with these statutory and
regulatory procedures:
1. The Services will provide the States or Tribes with information
on Federally-listed species and any designated critical habitat in the
States or on Tribal lands, with special emphasis on aquatic and
aquatic-dependent species.
2. States are obligated under existing CWA regulatory authority
requirements to provide notice and copies of draft permits to the
Services. See 40 CFR 124.10(c)(1)(iv) and (e). EPA will exercise its
oversight authority to ensure that States and Tribes carry out this
obligation. EPA and the Services will work with States and Tribes to
share information on permits that may raise issues regarding impacts to
threatened or endangered species or designated critical habitat.
3. If the Service or EPA is concerned that a NPDES permit is likely
to have an adverse impact on a Federally-listed species or critical
habitat, the Service or EPA will contact the appropriate State or
Tribal agency (preferably within 10 days of receipt of a notice of a
draft State or Tribal permit) to discuss identified concerns. The
Service or EPA will provide appropriate information in support of
identified concerns. The Services and EPA will provide copies to each
other of comments made to States or Tribes on issues related to
Federally-listed species.
4. If unable to resolve identified issue(s) with the State or
Tribe, the Service will contact the appropriate EPA Regional Branch not
later than five working days prior to the close of the public comment
period on the State's or Tribe's draft NPDES permit. Telephone contacts
should be followed by written documentation of the discussion with EPA
and include or reference any relevant supporting information.
5. If contacted by the Services, EPA will coordinate with the
Services and the State or Tribe to ensure that the permit will comply
with all applicable CWA requirements, including State or Tribal water
quality standards, which include narrative criteria prohibiting toxic
discharges, and will discuss appropriate measures protective of
Federally-listed species and critical habitat.
6. EPA may make a formal objection, where consistent with its CWA
authority, or take other appropriate action, where EPA finds that a
State or Tribal NPDES permit will likely have an adverse effect on
Federally-listed species or critical habitat.
For those NPDES permits with adverse effects on Federally-listed
species or critical habitat that are minor, it is the intention of the
Services and EPA that the Services will work with the State or Tribe to
reduce the adverse effects stemming from the permit. For those NPDES
permits that have adverse effects on Federally-listed species or
critical habitat that are more than minor, including circumstances
where the discharge fails to ensure the protection and propagation of
fish, shellfish and wildlife, and where the State or Tribe and the
Services are unable to resolve the issues, it is the intention of the
Services and EPA that EPA would work with the State or Tribe to remove
or reduce the adverse impacts of the permit, including, in appropriate
cases, by objecting to and Federalizing the permit where consistent
with EPA's CWA authority.
EPA will use the full extent of its CWA authority to object to a
State or Tribal permit where EPA finds (taking into account all
available information,
[[Page 2756]]
including any analysis conducted by the Services) that a State or
Tribal permit is likely to jeopardize the continued existence of any
listed species or result in the destruction or adverse modification of
critical habitat.
Note: EPA may review or waive review of draft State or Tribal
NPDES permits (40 CFR 123.24(d)). EPA will work with the Services
through the local/regional coordinating teams to help determine
which categories of permits should be reviewed for endangered
species concerns. If EPA finds that a draft permit has a reasonable
potential to have more than a minor affect on listed species or
critical habitat, and review of a draft permit has been waived, EPA
will withdraw this waiver during the public comment period (see 40
CFR 123.24(e)(1)).
7. If EPA objects to a NPDES permit under paragraph 6 above, EPA
will follow the permit objection procedures outlined in 40 CFR 123.44
and coordinate with the Services in seeking to have the State or Tribe
revise its permit. A State or Tribe may not issue a permit over an
outstanding EPA objection. If EPA assumes permit issuing authority for
a NPDES permit, EPA will consult with the Service prior to issuance of
the permit (as a Federal action) as appropriate under section 7 of the
ESA.
8. In the case of State or Tribal permits that have already been
issued, if the Services identify a permitted action which is likely to
have an adverse effect on Federally-listed species or critical habitat,
then the Services will contact the State or Tribe to seek to remedy the
situation. EPA will provide support and assistance to the Services in
working with the State or Tribe. Although EPA may, at the time of
permit issuance, object to and assume permit-issuing authority for
draft NPDES permits, EPA has no authority to require changes to an
already-issued State or Tribal permit. EPA or the Services could
request that the State or Tribe use State or Tribal authority to reopen
an issued permit if it is likely to adversely affect Federally-listed
species or critical habitat.
C. Issuance of EPA Permits
EPA issuance of a permit is an action subject to section 7
consultation if it may affect listed species or critical habitat. EPA
will meet ESA requirements as provided in 40 CFR 122.49(c) on the
issuance of individual and general NPDES permits, and 50 CFR part 402.
If consultation has been completed on State or Tribal water quality
standards and the NPDES permit conforms with those standards, then any
ESA section 7 review process should be simplified.
EPA will assure that all permits ensure the attainment and
maintenance of State or Tribal water quality standards, including those
that have been the subject of consultation or have been determined to
have ``no effect'' on listed species and critical habitat.
EPA and the Services agree to coordinate as follows in the review
of EPA-issued permits.
1. The Services will provide to EPA, when requested, information
regarding the presence of Federally-listed species, critical habitat,
proposed species and proposed critical habitat, including species
lists, maps, and other relevant information.
2. EPA will review permit applications and other available
information (including that previously provided by the Services) to
determine if issuance of a permit may affect any Federally-listed
species or critical habitat. If EPA makes a ``no effect'' finding, EPA
will document this determination in the permit record before public
notice. EPA will also determine whether proposed species are likely to
be jeopardized or proposed critical habitat adversely modified. EPA
will provide the Services with the public notice of the proposed permit
and EPA's determination of no effect. During the 30-day public comment
period, the Services may submit comments on EPA's determination. The
Services may request initiation of consultation on Federally-listed
species or critical habitat or conference on proposed species if it
believes the proposed action may affect listed species.
3. If EPA determines that the permitted action may affect
Federally-listed species or critical habitat, EPA will initiate either
informal or formal consultation. If EPA determines that the permitted
action is likely to jeopardize proposed species or adversely modify
proposed critical habitat, a conference will be initiated.
4. In consultations involving permits, any reasonable and prudent
measures (associated with an incidental take statement) will specify
the measures considered necessary or appropriate to minimize takings.
The Services will describe such measures. EPA may delegate the terms
and conditions of the incidental take statement to permittees. The
Services will rely on EPA to retain the responsibility to ensure the
terms and conditions are carried out. This approach will be reflected
in the Services' incidental take statements. Monitoring reports to
ensure implementation of reasonable and prudent measures and terms and
conditions will be made available to the Services by EPA in accordance
with the terms of the incidental take statement.
Reasonable and prudent measures and terms and conditions should be
developed in close coordination with the EPA to ensure that the
measures are reasonable, that they cause only minor changes to the
proposed action, and that they are within the legal authority and
jurisdiction of the Agency to carry out. If the Services and EPA cannot
reach agreement on appropriate reasonable and prudent measures or terms
and conditions at the level the consultation is being conducted, the
decision can be elevated by the procedures discussed in section V.A.
D. Watershed Planning
Whenever feasible and appropriate, the Services will participate
early on in watershed planning processes. The active participation of
the Services as a core stakeholder in the development of watershed or
basin plans should reduce or eliminate the need for, or facilitate,
consultation on EPA-issued permits and coordination on individual State
or Tribal NPDES permits and other site-specific actions that are
contemplated in watershed plans. Such participation should save the
States, Tribes, EPA and Services time and resources while improving
protection and recovery efforts for both listed and unlisted species.
X. Support in Administrative and Judicial Proceedings
The Services agree to provide support when requested by EPA in
defense of any requirements or actions adopted by EPA as a consequence
of reasonable and prudent alternatives, measures or conservation
recommendations rendered in biological opinions, or reasonable and
prudent measures provided in incidental take statements. Such support
in administrative and judicial proceedings will be subject to approval
by the Department of the Interior's Office of the Solicitor or NOAA
General Counsel's Office and EPA's General Counsel's Office.
XI. Revisions to Agreement
EPA and the Services may jointly revise this document.
XII. Reservation of Agency Positions
No party to this Agreement waives any administrative claims,
positions, or interpretations it may have with respect to the
applicability or the enforceability of the ESA or the CWA.
[[Page 2757]]
XIII. Obligation of Funds, Commitment of Resources
Nothing in this Agreement shall be construed as obligating any of
the parties to the expenditure of funds in excess of appropriations
authorized by law or otherwise commit any of the agencies to actions
for which it lacks statutory authority. It is understood that the level
of resources to be expended under this Agreement will be consistent
with the level of resources available to the agencies to support such
efforts.
XIV. Nature of Agreement
This memorandum is intended only to improve the internal management
of EPA and the Services and is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or
equity by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
XV. Effective Date; Termination
This memorandum will become effective upon signature by each of the
parties hereto. Any of the parties may withdraw from this Agreement
upon 60 days' written notice to the other parties; provided that any
section 7 consultation covered by the terms of this Agreement that is
pending at the time notice of withdrawal is identified by the parties,
and those activities covered by this Agreement that begin the
consultation process prior to and within the 60-day notice period, will
continue to be covered by the terms of this Agreement.
XVI. Signatories [Reserved]
Note: It is anticipated the following individuals will sign the
final Agreement when it is executed: J. Charles Fox, Assistant
Administrator for Water, U.S. Environmental Protection Agency;
Donald J. Barry, Assistant Secretary for Fish and Wildlife and
Parks, U.S. Department of the Interior; Terry D. Garcia, Assistant
Secretary for Oceans and Atmosphere, U.S. Department of Commerce.
[FR Doc. 99-1029 Filed 1-14-99; 8:45 am]
BILLING CODE 6560-50-P