| To: | Members & Subscribers |
| From: | National Office |
| Date: | September 19, 1997 |
| Re: | RA 97-23 |
Endangered Species Act Consultation Process
EPA, the Fish and Wildlife Service (FWS), and the National Marine
Fisheries Service (NMFS) are circulating a new draft Memorandum
of Agreement (Agreement) among their agencies which defines the
specific roles of each Agency when addressing Endangered Species
Act (ESA) issues in the context of NPDES permitting, State NPDES
program approvals, and approval of State water quality standards.
Section 7 of the ESA requires Federal agencies to consult with
FWS or NMFS when taking an action which may adversely impact endangered
or threatened species or critical habitat. This includes actions
such as: EPA-issued NPDES permits, approval of State NPDES programs
and State water quality standards, and arguably, oversight of
State-issued NPDES permits.
EPA has described the current consultation process as "random"
and hopes to make the process more consistent and clearer for
each of the agencies involved. The Agreement lays out a specific
process for agency coordination and consultation. The process
described sets up a timely schedule for elevating unresolved consultation
issues between the agencies when an action which may adversely
affect endangered or threatened species, or designated critical
habitat.
Though the Agreement is intended to make ESA Section 7 consultation
requirements more consistent and clear, the draft Agreement also
refers in some instances to ensuring protection of "proposed"
species, and "proposed" critical habitat, which go beyond
the requirements of Section 7. Currently, it is unclear how this
and other stricter requirements may be imposed on permittees once
this Agreement is finalized and implemented.
AMSA's Water Quality Committee will be assessing impacts to permittees
in a more detailed analysis of the Agreement and in future meetings
with EPA. Additional action by AMSA may be warranted based upon
these future discussions and findings. EPA and the Services may
finalize the Agreement as early as October 1997. Impacts to NPDES
permitting and State water quality standards reviews outlined
in the Agreement are summarized below:
NPDES Permits, Section 404 permits, and Sewage Sludge Permits
1. The Agreement specifies that for all EPA-issued
individual, general, or sewage sludge permits, that EPA will review
permit applications to determine the affect of permit-issuance
on any Federally-listed species or critical habitat. Should there
be a determination that permit-issuance does or may affect species
or critical habitat, EPA is required to initiate consultation
with the Services. Any "reasonable and prudent measures"
to minimize takings may be recommended by the Services, and EPA
may delegate these measures to permittees.
2. The Agreement specifies that for all State-issued permits,
EPA may make formal objection, or take other appropriate action
if a State fails to address EPA or Services concerns regarding
the impact of permit issuance on Federally-listed species or critical
habitat. EPA may federalize the permit if a State does not address
EPA's objection.
3. For existing permits, the Agreement recognizes that EPA does
not have authority to require changes to an already-issued State
NPDES, section 404, or sewage sludge permit. The Agreement stipulates
that the Services may request that a State use its authority to
reopen an issued permit if it is likely to adversely affect Federally
listed species.
EPA Approval of State NPDES Programs and State WQ Standards
In addition to the Agreement, a draft biological opinion from
Fish & Wildlife Service and National Marine Fisheries Service
was also circulated for comment. The opinion is intended to address
EPA's Section 7 consultation requirements for existing
and future approvals of state NPDES programs and state water
quality standards. The opinion concludes that "EPA's approval
of the assumption of permitting authority by the States...under
Sections 402, 404, and 405 of the CWA and EPA's approval of water
quality standards under Section 303(c) of the CWA and permitted
activities conducted in accordance with properly implemented Federal
and State regulatory programs are not likely to jeopardize the
continued existence of listed or proposed species, and are not
likely to result in the destruction or adverse modification of
designated or proposed critical habitats."
This conclusion is based on the premise that:
1) EPA follows coordination procedures specified in the Agreement
in its review and objection to state-issued permits;
2) EPA will ensure, through consultation, that new or revised
water quality standards approved by EPA will not likely to adversely
affect endangered or threatened species or designated critical
habitat;
3) EPA will initiative Section 7 consultation as needed to ensure
that any revisions to state water quality standards are not likely
to adversely affect listed or proposed endangered
or threatened species or designated or proposed
critical habitat;
4) EPA, with the Services, will develop a research plan to identify
high priority data and information needed to reduce uncertainty
concerning the degree with which water quality criteria minimize
any incidental take associated with water quality standards.
5) EPA will initiate a national rulemaking as follows:
a) prohibit issuance of any state NPDES or sewage sludge permit
that would be likely to jeopardize the continued existence of
any endangered or threatened species, or result in the destruction
or adverse modification of critical habitat.
b) prohibit mixing zones or variances that would be likely
to jeopardize species or critical habitat.
c) require adoption of site-specific water quality criteria
(tailored to the geographic range of species of concern) where
determined to be necessary to avoid jeopardizing species or critical
habitat.
For more information, please contact Mark Hoeke, AMSA, at 202/833-9106.
ATTACHMENTS:
- Final Review Draft, "Agreement Among EPA, Fish
and Wildlife Service, and National Marine Fisheries Service Regarding
Enhanced Protection and Recovery of Threatened and Endangered
Species Under Sections 303(c), 402, 404 and 405 of the Clean Water
Act and Section 7 of the Endangered Species Act." (Please
contact AMSA's National Office at 202/833-AMSA for a copy of this
document)
