Joint Appendix — National Ass'n v. Defenders of Wildlife

Supreme Court brief2007

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Text

@Q| ‘FILED

Nos. 06-340 and 06-549 cen 0 2007

In The | OFFICE EO F THE ¢ LER

L. “iT, U.S

Supreme Court of the United-States——

NATIONAL ASSOCIATION OF

HOME BUILDERS, et al., Petitioners,

Vs.

DEFENDERS OF WILDLIFE, et al., Respondents.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Petitioner,

vs.

DEFENDERS OF WILDLIFE, et al., Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

JOINT APPENDIX

PAuL D. CLEMENT NORMAN D. JAMES

Solicitor General (Counsel of Record)

(Counsel of Record) FENNEMORE CRAIG, PC.

U.S. DEPARTMENT OF JUSTICE 3003 North Central Avenue,

Room 5614 Suite 2600

950 Pennsylvania Avenue, N.W. Phoenix, AZ 85012-2913

Washington, D.C. 20005 (602) 916-5346

(202) 514-2217 (602) 916-5546 (facsimile)

(202) 514-2218 (facsimile) Altorneys for National

Attorneys for U.S. Association of Home

Environmental Protection Agency Builders, et al.

Eric R. GLITZENSTEIN

(Counsel of Record)

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Avenue, N.W., Suite 700

Washington, D.C. 20005

(202) 588-5206

(202) 588-5049 (facsimile)

Attorneys for Defenders of

Wildlife, Center For Biological

Diversity and Craig Miller

| Additional Counsel Listed On Inside Cover]

Petitions For A Writ Of Certiorari Filed

September 6 And October 23, 2006, Respectively

Certiorari Granted January 5, 2007

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

MICHAEL P. SENATORE

DEFENDERS OF WILDLIFE

" 1130 Seventeenth Street, N.W.

Washington, DC 20036-4604

(202) 682-9400

Attorney for Defenders

of Wildlife, Center For

Biological Diversity and

Craig Miller

JAMES T. SKARDON

Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

1275 W. Washington Street

Phoenix, AZ 85007

(602) 542-1610

(602) 542-7798 (facsimile)

Attorneys for the

State of Arizona

RUSSELL S. FRYE

FRYE LAW PLLC

3050 K Street NW, Suite 400

Washington, DC 20007-5108

(202) 527-8265

(866) 850-5198 (facsimile)

DUANE J. DESIDERIO

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, N.W.

Washington, DC 20005-2800

(202) 266-8200

(202) 266-8161 (facsimile)

Attorneys for National

Association of Home

Builders, et al.

MATTHEW J. MCKEOWN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the

Solicitor General

ANDREW C. MERGEN

DAvID C. SHILTON

Attorneys

DEPARTMENT OF JUSTICE

(202) 514-2217

ROGER R. MARTELLA, JR.

Acting General Counsel

MICHAEL G. LEE

JULIE K. WALTERS

Attorney

ENVIRONMENTAL

PROTECTION AGENCY

950 Pennsylvania

Avenue, N.W.

Washington, DC 20005

(202) 564-8064

11.

12.

JOINT APPENDIX

TABLE OF CONTENTS

Page

Relevant Docket Entries: Defenders of Wildlife

v. U.S. Environmental Protection Agency. Nos.

03-71439, 03-72894, No. CIV 02-195-TUC-CKJJ......... 1

1/23/2002 letter from Terry Oda to David

Harlow requesting initiation of informal

ee ccisisscinisnctaaisaetssiiniaiinabinittaiiaiintiaiiaaieiaiainniaiin 7

2/15/2002 letter from Alexis Strauss to Karen

Smith regarding concerns on Arizona’s

i isiiiicsnntnenieneningricenninuninenmesinnninntiaenetiv 10

2/28/02 e-mail from Matthew Mitchell and

attached table summarizing the issues. .................... 13

5/16/2002 letter from Terry Oda to Vera

Kornylak regarding timeline for the ESA

I I sccctenentaecntinmiccistinneiniicnanpiincnions 27

7/09/2002 letter from David Harlow to Terry

Oda with cover e-mail dated 7/09/2002 from

ET ciscrttninsenncetadtianberenindcmniasnapiiinininpiindininies 30

7/11/02 letter from Wayne Nastri to Jacqueline

Schafer regarding completeness determination....... 34

Various e-mails of 7/15/02-7/17/02............ccccceeeeeesenees 36

I OE We iacsintinhccttisccininitiidiitnidndiatiinsansiaanieineie 39

Informal undated memo concerning Southwestern

ED cnnccsictiomnscthocsnemeavicmmetannintamsinanniens 41

7/31/2002 Briefing Statement....................... ules 44

8/20/2002 letter from Brian Hanson to Terry

SEIED: choseteietdeesibnieinciilsdhieubinaigieikiaciageliaiieeieiaiiieiaaainiie

13.

15.

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17.

18.

19.

20.

21.

22.

23.

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26.

JOINT APPENDIX

TABLE OF CONTENTS -- Continued

Page

8/22/2002 letter from Terry Oda to Brian

anti cevipercsnidsinnaieninideihetniadiancannnisinionssidanindiinieianbinenintaninien 59

9/6/2002 letter from Jeffrey Homer to Matthew

TTT cirhicenietialenaeitahaeinaiidit tetanic ieateaiaiiaahie 64

9/9/2002 letter from Kenneth Abrahams to

URI cinciscisscerndniinnicuitpeninendnstitnetisidaiinmnnaniaiiaioens 66

9/13/2002 letter from Robert Anderson to

Se BN ntrcrisssuiitetnccsiisttnicatepiniiiiieninstivelinemintidobianin 70

9/13/2002 comments from Vera Komylak to

Matthew Mitchell on Arizona application................ 82

9/14/2002 letter from David Kimball to

NT NTI csscinstsninctentssntnstinneondesamneniennnnadiinimias 94

Undated letter from Connie Wilhelm to

eT SIN ciisssesinbeinodensenanicithestanditinnineinninenneiniénens 106

9/16/2002 letter from Bob Broscheid to

Re sericgsitcinncentisnninsiectgnintitninintnnnmantianepeins 118

NIN occscssicbsitcsceaintiinieiaidininundansintnettaee 120

9/26/2002 letter from Steven Spangle to Terry

Sit seuisehieitiseiidiinibancinesdsmnbindinaddtanpidiadanieianieonianitinieniines 124

Undated FWS internal analysis of NPDES

transfer to the State of Arizona ..................::eeeeeeeees 127

9/27/2002 e-mail from Gary Frazer...............::see 140

10/09/2002 memo entitled “Briefing for the

Assistant Director for Endangered Species”........... 141

10/16/2002 letter from Terry Oda to Steven

rin icindcahechdessassiinsciitabaiciiianenelsimiampalihedaiaindiiiaiialiaeniedied 145

27.

28.

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30.

31.

32.

33.

34.

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ili

JOINT APPENDIX

TABLE OF CONTENTS - Continued

Page

10/17/2002 memo entitled “Briefing for the

SEIT” csicunctotisibabiannemnincaidanianeontiembsdnipimasetiuniiniipgunsatiin 147

11/18/2002 letter from John Kennedy to Steve

SII csiestcneseiteasiabadeiadiinaninncdnanenenbapaittaneniandiniindndnmiiinties 149

11/20/2002 letter from Terry Oda to Steven

STII xlenscidiitthiesisheiulibiinduntaninietiiglibibumnatnaienianeaniiniaiengéi 152

12/02/20002 letter from Terry Oda to Steven

PIII scnsirnissnseinciniitstecepheliaieecncnentinhinisiaiiindibineionpsssiaiuieseete 161

12/04/2002 letter from Steven Spangle to Terry

IIT icciessiuisbebaiendpeniealaaiithldininatndiinnicntenininiinininaheunndageieindidiiuinnien 167

12/05/2002 letter from Nastri to Hull

regarding approval of Arizona’s application........... 190

12/05/2002 EPA Responses to Comments on

Arizona’s Application with Notice of Proposed

eR icccnvininiiinaianinnniadendaiiniinicnnimeineinineinriagecis 192

4/02/2003 Petition for Review ..............cccccccseseseeeeeee 257

5/01/2003 Home. Builders Motion to Intervene

and Supporting Memorandum.....................see0eeee 270

7/17/2003 Order of District Court................ccceeeeeeee 312

7/27/2005 letter from Robert Gulley, counsel

for EPA, to the Ninth Circuit Clerk......................65 321

8/4/2005 letters from Robert Gulley to the

UII IIIT i scsstnisisttinisiindinbiniendupiaginienensedsasuns 323

9/17/02 letter from Alexis Strauss, EPA, to

RPE ea ee 327

JOINT APPENDIX

TABLE OF CONTENTS -- Continued

Page

40. E-mails of 10/15/03, 7/23/02 and 7/25/02 ................ 328

41. 11/27/02 letter from Steven Spangle to Terry

GPU. cocecconnossunsesseveunmmnennenienennentninniensmmtenninnnmennensinaalh 331

The following items were reproduced in the Petitions for

Writ of Certiorari and are not reproduced herein:

42. 2/21/01 Memorandum of Agreement between

EPA, FWS and NMFS Regarding Enhanced

Coordination Under the Clean Water Act and

Endangered Species Act............. HB Pet. App. 245-317

43. 6/21/02 letter from EPA to FWS requesting

initiation of formal consultation ... HB Pet. App. 583-586

44, 6/21/02 Biological Evaluation on proposed approval

of Arizona’s NPDES program .... HB Pet. App. 587-620

45. 8/01/02 Federal Register Notice of Application °

to Administer NPDES Program ..HB Pet. App. 543-561

46. 10/04/2002 EPA/DOI Interagency Elevation

Document, Summary of Issues _ for

I scvcstacencinsnnsnsccsvovesniiits .HB Pet. App. 562-582

47. 12/03/2002 FWS Biological Opinion.. HB Pet. App. 77-125

48. 8/22/05 opinion of the court of appeals... HB Pet. App. 1-68

49 6/08/06 order of the court of appeals on

petitions for rehearing ............... HB Pet. App. 134-158

50. 10/13/06 letter to the Honcrable H. Dale

Hall from Benjamin H. Grumbles regarding

Applicability of ESA Requirements to EPA

Clean Water Act NPDES State Program

° FI icccccenristsninnnia EPA Pet. App. 93a-102a

51.

52.

JOINT APPENDIX

TABLE OF CONTENTS ~ Continued

Page

10/17/06 letter to Benjamin H. Grumbles from

H. Dale Hall in response to his 10/13/06 letter

Re: Applicability of Endangered Species Act

Requirements to the Environmental Protection

Agency’s Clean Water Act, National Pollutant

Discharge Elimination System State Program

i cccnccccnsnpsecsccsessssionn EPA Pet. App. 103a-110a

10/18/06 letter to Benjamin H. Grumbles from

William T. Hogarth III regarding his 10/13/06

letter requesting NMFS position concerning

EPA’s obligation to consult under Section

7(a)(2) of the ESA.................. EPA Pet. App. 11la-116a

- - : a Te see et >

peo een nie ia _ a aa) pee hoe on Pa a oe 4.

+ 5 {i oa OT ;

hea as : aaa

a ot eRe = a

DOCKET ENTRIES

U.S. Court of Appeals for the Ninth Circuit

04/03/03

05/01/03

05/02/03

05/13/03

08/15/03

09/23/03

11/06/03

PETITION FOR REVIEW DOCKETED

(File date 04/03/03)

FILED HOME BUILDERS’ MOTION TO

INTERVENE WITH EXHIBITS; SERVED

ON 04/29/03 (File date 05/01/03)

FILED STATE OF ARIZONA'S MOTION TO

INTERVENE; SERVED ON 05/01/03 (File

date 05/02/03)

FILED ARIZONA CHAMBER OF

COMMERCE’S MOTION TO INTERVENE

SERVED ON 05/01/03 (File date 05/02/03)

STATE OF ARIZONA'S, ARIZONA

CHAMBER OF COMMERCE’S AND HOME

BUILDERS’ MOTIONS TO INTERVENE

ON BEHALF OF RESPONDENT IS

GRANTED (File date 05/13/03)

PURSUANT TO THE DISTRICT COURT'S

07/17/03 ORDER A PORTION OF THE

DISTRICT COURT ACTION HAS BEEN

TRANSFERRED TO THIS COURT. THE

TRANSFERRED ACTION HAS BEEN

ASSIGNED NO 03-72894. NOS 03-71439

AND 03-72894 ARE CONSOLIDATED. (File

date 08/15/03)

FILED PETITIONERS’ CONSOLIDATED

OPENING BRIEF. (File date 09/23/03)

FILED RESPONDENT USEPA'’S BRIEF.

(File date 11/06/03)

12/19/03

09/02/04

08/22/05

09/20/05

09/30/05

RECEIVED ORIGINAL AND 16 COPIES

PETITIONERS’ REPLY BRIEF OF 39

PAGES. (File date 12/19/03)

CALENDARED: SAN FRANCISCO

NOVEMBER 1, 2004 9:00 AM. COURTROOM

1 (File date 09/02/04)

FILED OPINION: WE TRANSFER

DEFENDERS OF WILDLIFE’S

ENDANGERED SPECIES ACT AND

ADMINISTRATIVE PROCEDURE ACT

SUIT CHALLENGING THE VALIDITY OF

THE BIOLOGICAL OPINION TO THE

DISTRICT COURT WHERE IT WAS

ORIGINALLY FILED FOR PROCEEDINGS

CONSISTENT WITH THIS OPINION. THE

PETITION FOR REVIEW IS GRANTED

AND REMANDED TO THE EPA FOR

PROCEEDINGS CONSISTENT WITH THIS

OPINION (File date 08/22/05)

FILED ORDER (MARSHA S. BERZON)

RESPONDENTS’ MOTION FOR AN

EXTENSION OF TIME TO FILE A

PETITION FOR REH#ARING OR PETITION

FOR REHEARING EN ' BANC IS

GRANTED. THE PETITION SHALL BE

FILED NO LATER THAN 10/20/05. (File

date 09/20/05)

FILED ORDER (MARSHA S. BERZON)

INTERVENORS’ MOTION FOR AN

EXTENSION OF TIME WITHIN WHICH

TO FILE A PETITION FOR REHEARING

OR REHEARING EN BANC IS GRANTED.

THE PETITION SHALL BE FILED NO

LATE THAN 10/20/05. (File date 09/30/05)

10/19/05

10/20/05

11/14/05

12/23/05

06/08/06

‘ 06/12/06

06/15/06

FILED INTERVENOR-RESPONDENT

PETITION FOR REHEARING EN BANC.

(PANEL ALL ACTIVE AND ANY

INTERESTED SENIOR JUDGE). (File date

10/19/05)

FILED RESPONDENT USEPA & US FISH

AND WILDLIFE SERVICE’S PETITION

FOR REHEARING EN BANC. (File date

10/20/05)

FILED ORDER (MARSHA S. BERZON):

PETITIONER DEFENDERS OF WILDLIFE

IS REQUESTED TO FILE A RESPONSE

TO THE PETITION FOR REHEARING EN

BANC WITHIN 21 DAYS OF THE DATE

OF THIS ORDER. THE RESPONSE SHALL

NOT EXCEED 15 PAGES IN LENGTH. (File

date 11/14/05)

FILED DEFENDERS OF WILDLIFE’S

RESPONSE TO FEDERAL RESPONDENTS

AND INTERVENORS-RESPONDENTS’ PFR

EB OF 22 PAGES; SERVED ON 12/22/05.

(File date 12/23/05)

FILED ORDER DENYING PETITIONS

FOR REHEARING AND REHEARING EN

BANC. (File date 06/08/06)

FILED INTERVENORS’ JOINT MOTION

TO STAY MANDATE; SERVED ON

06/12/06. (File date 06/12/06)

FILED INTERVENOR STATE OF ARIZONA'S

MOTION FOR STAY THE MANDATE;

SERVED ON 06/13/06. (06/15/06)

FILED RESPONDENT’S MOTION WITH

DECLARATION TO STAY THE MANDATE.

(File date 06/15/06)

06/16/06

FILED ORDER (MARSHA S. BERZON)

INTERVENOR’S JOINT MOTION TO STAY

THE MANDATE IS GRANTED. THE

MANDATE IS HEREBY STAYED FOR 90

DAYS PENDING THE FILING OF A

PETITION FOR WRIT OF CERTIORARI IN

THE U.S. SUPREME COURT. IF SUCH A

PETITION IS FILED AND IF THE WRIT

OF CERT IS GRANTED BY THE

SUPREME COURT THE STAY SHALL

CONTINUE UNTIL DISPOSITION BY

THE SUPREME COURT. (File date

06/16/06)

U.S. District Court

District of Arizona (Tucson Division)

04/17/02 1

01/09/03 42

01/31/03 49

01/31/03 50

COMPLAINT FILED (File date 4/17/02)

SECOND AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

BY DEFENDERS OF WILDLIFE, CENTER

FOR BIOLOGICAL; ADDING DFT GALE

NORTON, STEVEN WILLIAMS. MODIFIED

ON 01/27/2003 (ENTERED 01/27/2003).

(File date 01/09/03)

MOTION TO INTERVENE WITH RESPECT

TO CLAIM SEVEN BY NATIONAL

ASSOCIATION OF HOME BUILDERS,

SOUTHERN ARIZONA HOME BUILDERS

ASSOCIATION AND HOME BUILDERS

ASSOCIATION OF CENTRAL ARIZONA.

(File date 01/31/03)

DECLARATION OF CONNIE WILHELM

BY HOME BUILDERS ASSOCIATION OF

CENTRAL ARIZONA. MODIFIED ON

04/09/2003). (File date 01/31/03)

01/31/03 51 DECLARATION OF ALAN LURIE BY

SOUTHERN ARIZONA HOME BUILDERS

ASSOCIATION. MODIFIED ON 04/09/2003.

(File date 01/31/03)

06/02/03 151 ORDER BY JUDGE CINDY CK.

JORGENSON DENYING MOTION FOR

PRELIMINARY INJUNCTION BY

PLAINTIFF; WITHIN TEN DAYS OF THE

ENTRY OF THIS ORDER THE PARTIES

SHALL ADVISE THIS COURT WHETHER

THEY WISH TO PROCEED ON CLAIM 7;

AND IF NO TIMELY REQUEST IS FILED

THIS COURT WILL SEVER CLAIM 7

PURSUANT TO RULE 21 FED.R.CIV.P.

AND TRANSFER IT TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT PURSUANT TO 28 USC

§ 1631. (File date 06/02/03)

07/17/03 178 ORDER BY JUDGE CINDY = K.

JORGENSON RE: COMPLAINT (AMENDED),

IT IS HEREBY ORDERED THAT: CLAIM

7 OF PLAINTIFFS’ SECOND AMENDED

COMPLAINT IS SEVERED FROM

PLAINTIFFS’ REMAINING CLAIMS, AND

TRANSFERRED TO THE UNITED STATES

COURT OF APPEAL FOR THE NINTH

CIRCUIT, THE CLERK OF THE COURT

SHALL FORWARD A COPY OF THIS ORDER,

THIS COURT'S JUNE 2, 2003 ORDER #151,

AND A COPY OF PLAINTIFFS’ SECOND

AMENDED COMPLAINT #42 TO THE

NINTH CIRCUIT; THE NINTH CIRCUIT

IS ADVISED THAT THIS MATTER IS

A RELATED CASE TO THE PENDING

MATTER OF DEFENDERS OF WILDLIFE

V. UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, NINTH CIRCUIT

CASE #03-71439; AND IF ANY PARTY OR

INTERVENOR WISHES ADDITIONAL

PORTIONS OF THIS COURT'S RECORD

TO BE FORWARDED TO THE NINTH

CIRCUIT, IT SHALL PREPARE A MOTION

AND/OR STIPULATION ALONG WITH A

PROPOSED FORM OF ORDER THAT

CLEARLY INDICATES WHICH SPECIFIC

PORTIONS OF THE RECORD IT WISHES

FORWARDED TO THE NINTH CIRCUIT.

SUCH MOTION AND/OR STIPULATION

ALONG WITH A PROPOSED FORM OF

ORDER SHALL BE SUBMITTED TO THE

COURT WITHIN 10 BUSINESS DAYS OF

THE ENTRY OF THIS ORDER. (File date

07/17/03)

[LOGO] UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105

In Reply

Refer toWTR-5

January 23, 2002

Mr. David L. Harlow

Field Supervisor

U.S. Fish and Wildlife Service

2321 W. Royal Palm Rd.

Suite 103

Phoenix, AZ 85021

Re: Consultation Regarding Possible

Environmental Protection Agency (EPA)

Approval of Program Delegation of the

National Pollutant Discharge Elimination

System (NPDES) Program to the Arizona

Department of Environmental Quality

(ADEQ) and Request for Species List

Dear Mr. Harlow:

The purpose of this letter is to request initiation of

informal consultation under Section 7 of the Endangered

Species Act regarding the possible approval by the EPA for

ADEQ to administer the NPDES program, under the

federal Clean Water Act, in Arizona. The approval does not

include authorization to administer the NPDES program

in Indian Country, as defined in 18 U.S.C. § 1151. The EPA

received Arizona’s submission for the authority to

administer the program on January 14, 2002. Within 90

days of the receipt of a complete program, the EPA

Administrator is required to approve or disapprove the

program. If the program is approved, ADEQ would assume

the following specific activities:

¢ Permitting, compliance, and enforcement of individual

permits for discharges from industrial, commercial,

mining, and silvicultural dischargers; animal feeding

operations and aquatic animal production facilities;

and, domestic wastewater treatment facilities that

include publicly-owned treatment works (POTWs) and

privately-owned treatment works;

e Issuance of general permits;

e Administration of the NPDES sludge (biosolids)

management program;

¢ Administration of the NPDES pretreatment program;

¢ Administration of all stormwater discharge programs,

including municipal storm sewer systems (combined

and separate), general permits for stormwater

discharges, and individual permits for stormwater only

discharges; and

¢ Administration of the NPDES permitting, compliance,

and enforcement programs for federal facilities.

A copy of the Arizona Pollutant Discharge Elimination _

System (AZPDES) Program Submission is enclosed.

Please provide us with a list of any threatened,

endangered, proposed, or candidate species, and designated

or proposed critical habitats that might be affected by

these actions, and any information, recovery plans, maps,

or literature citations of which the Service is aware that

may be useful to us in assessing whether these actions

may affect listed, proposed, or candidate species or critical

habitats. If you have any questions, please contact Jenny

Mann of my staff at (415) 972-3512.

Sincerely,

/3/ Terry Oda

Terry Oda, Chief

CWA Standards and

Permits Office (WTR-5)

Enclosure

[LOGO] UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105-3901

Karen Smith

Director, Water Quality Division

Arizona Department of Environmental Quality

3033 North Central Avenue

Phoenix, AZ 85012-2809

Dear Ms. Smith:

To follow our conference call yesterday, I am writing to

confirm that EPA is unable to determine the Arizona Pollution

Discharge Elimination System program submission is

complete. Based on our review to date, we conclude the

submission is incomplete, as it appears Arizona’s legal

authority may not meet minimum requirements set forth

in EPA’s state program submission regulations. This

conclusion is based on our determination that issues we

identified in our letter of September 20, 2001 remain

unresolved, and differences between State and federal

legal authorities have not been adequately addressed. A

list of concerns was included in yesterday’s electronic mail

message from Matthew Mitchell of our office to you and

others at ADEQ.

As we discussed during the conference call, we may

have additional concerns regarding the State’s authority to

implement a complete National Pollutant Discharge

Elimination System (NPDES) program, including biosolids

and pretreatment. While EPA must, within the first thirty

days determine whether the program submission is

complete, the statute provides that EPA will have ninety

days to make a final determination as to whether or not

the application is approvable. Thus, EPA’s initial review to

determine whether an application is complete is not

intended to be exhaustive, but rather to determine

whether the application meets basic legal requirements.

We and the Office of Regional Counsel hope to have

productive discussion with your office and the Arizona

Attorney General’s (AG’s) Office on these issues, and how

they might be addressed in a complete program

submission. We would also like to have a draft revised

AG’s Statement, which addresses and explains differences

between the State and federal authorities, to inform

these discussions. The AG’s Statement is an essential

component for EPA’s review of any State NPDES program

submission. In certifying that the State program is at least

as stringent as the federal program, the AG must

demonstrate the State’s authority to implement the

program, and address any differences between State and

federal law, explaining why the State is as stringent as the

federal. EPA’s NPDES State Program Guidance indicates

States will send to EPA a draft application, including a

draft AG’s Statement, with opportunity for review prior to

submittal of a formal application. As we did not receive a

draft application, we were unable to provide specific

feedback and seek resolution of issues until reaching this

first crucial point in the forma review process.

I am confident we will continue to work together to

achieve our mutual goal of delegating this program to

Arizona, and believe we can resolve the issues before us.

Our lead staff person for the review, Matthew Mitchell, can

be reached at (415) 972-3508, and I am at (415) 972-3572.

Sincerely yours,

/s/ Alexis Strauss 15 Feb. 2002

Alexis Strauss, director

Water Division

[Image Omitted In Printing]

Matthew Mitchell

02/28/2002 07:08 PM

To: Jane DeRose-Bamman <DeRose-Bamman.Jane@

ev.state.az.us>

cc: nancy.jamison@AG.STATE.AZ.US, Michele

Robertson <Robertson.Michele@ev.state.az.us>,

Karen Smith <Smith.Karen@ev.state.az.us>,

Mike Traubert <Traubert.Mike@ev.state.az.us>,

Chris Varga <Varga.Chris@ev.state.az.us>

Subject: AZPDES issues

Jane,

I have attached one file which is a table summarizing the

issues. The second file contains a fuller explanation of

each issue.

These are the issues we’ve been able to identify in our

review to date in order to comply with your request that

we provide you a list of issues as soon as possible. We will

continue our review and will notify you immediately if we

identify any additional concerns.

We look forward to discussing the NPDES issues with you

on Tuesday morning.

Matt

[File Images Omitted In Printing]

Issues Summary228.wp majorissues228.wpc

DRAFT

Arizona Program Submission - Major Issues

(definition missing)

Issue Regulatory Citation or | Status/

Location in Submission | Resolution

Biosolids Issues

1. Scope of program 40 CFR 503.1(b) —

(elements missing) | Applicability ((b)(2) and (4)

applicability to sewage

sludge and land where

sewage applied

2. Direct 503.3(b) Direct

enforceability enforceability

(capability missing)

3. Additional or 503.ia) Additional or more

more stringent stringent requirements

requirements

(capability limited)

4. Preparer 503.7 Requirement for a

responsibility person who prepares

(enforcement sewage sludge

capability against

preparer for applier

violation) :

5. Definition of 503.%w) definition of

sewage sludge sewage sludge

6. Additional Subpart B Land Application

requirements for | 503.10 Applicability

os 503.10(b\2) and (c)(2)

safi (authority for case-by-case

ety ;

requirements)

7. Selenium limit | 503.13 Table 1 (selenium

waiver limit)

8. Prohibition of 503.14(a) (prohibition of

ESA adverse effects | adverse effects)

9. Reclamation site |503.14(d) (permission from

(application of permitting authority needed)

sewage sludge at

greater than an

agronomic rate)

10. Preparer’s 503.18 Reporting

annual report

11. Inspection of Resource analysis

biosolid

management

facilities

NPDES Issues

12. Public 123.27(d)

participation in

enforcement actions

13. Authority to 123.28

issue permits to

control disposal of

pollutants into wells

14. Judicial review

of approval or

denial of permits

123.30

15. Affirmative

defense to civil

liability (broader

than NPDES

ision)

40 CFR 122.3(d) (AZ goes

beyond scope) ARS 49-262F

123.22(c)

and residential

evaporative cooler

bleedoff

R18-9-A902.G.8

18. Definition of

Tribal lands

A902.A.1

19. Definition of

navigable waters

(State regs lack

language

comparable to

40 CFR 1222)

49-201

20. Definition of

toxic pollutants

(limitation to those

“Snjurious to public

health”)

49,201.37. There are a

number of references

throughout the statute and

regulations to it. See also

49-255.01(F)

21. Extent of

authority for entry,

inspection and

sampling, etc.

(authority for actual

discharges v. for

discharges that

may occur)

49-203(B) and AG Statement

at p. 9

22. Maximum fines

for criminal

penalties (less

stringent than

40 CFR 123.27?)

A.R.S 13-801, 802, 803. See

also AG Statement at page 15

23. Classification

of penalties (as

stringent as

federal?)

49-263

24. Prohibitions

(applicable water

quality

requirements may

include

EPA-promulgated

standards)

R-18-9-A903.3

25. Resources for

compliance with

storm water

regulations, CAFO

regulations, and

implementation

of pretreatment

Program Description

26. Assumption

that Federal

contribution will

continue to be 40%

Program Description

Arizona Program Submission - Major Issues

Biosolids Issues

1. EPA rule: 503.1(b)(2), 1(b)(4): states that the

biosolids regulations apply to sludge applied to the land,

and to the land where sludge is applied or disposed. Allows

for corrective actions to be taken in cases where preparer

and applier are not found to be in violation.

ADEQ rule: no similar statement of authority:

2. EPA rule 503.3(b), known as the “direct enforceability”

provision, allows enforcement against any person that

engages in the use or disposal of sewage sludge without

complying with the sewage sludge regulations, regardless

of whether that person holds a permit for sewage sludge

use or disposal.

ADEQ rule: This provision is missing and should be added

or incorporated by reference to allow adequate

enforcement of the ADEQ biosolids regulations. If a person

does not have a permit and prepares or applies sewage

sludge without complying with the regulations, ADEQ

should have the ability to hold them liable.

3. EPA rule: 503.5(a): authorizes permitting authority

to impose more stringent conditions (on any party) when

needed to protect public health and the environment

ADEQ rule: ADEQ can place specific requirements in a

permit issued to a wastewater treatment plant. It does not

appear that ADEQ has authority to issue a permit to an

applier with requirements above and beyond those

specifically in ADEQ’s rule. -

Example: An applier wants to apply out-of-state biosolids

in an area near an endangered species habitat. It is

desirable from the point of view of the Fish and Wildlife

Service and ADEQ to have a 500' set-back from the

habitat. ADEQ has no mechanism to order the applier to

observe a 500’ set-back in this particular case.

4. EPA rule: 503.7: holds preparer responsible for

compliance with all requirements in the rule.

ADEQ rule: ADEQ can place this requirement in permits

issued to wastewater treatment plants. It does not appear

that ADEQ has authority to take enforcement action

against a preparer if an applier violates ADEQ’s rule ana

the preparer does not have a permit placing responsibility

on the preparer.

Example: A non-NPDES POTW without a permit with

sludge conditions in it contracts with a land applier who

applies biosolids in excess of the agronomic rate. Under 40

CFR 503.7, EPA could penalize the POTW as well as the

applier. ADEQ could penalize the applier but not the

POTW.

5. EPA rule 503.9(w): defines “sewage sludge”

ADEQ rule: This definition was deleted from the final

version of the ADEQ rule.

6. EPA rule 503.10(b)(2), 10(c)(2): Allows permitting

authority to impose management practices on applications

of “exceptional quality” biosolids when necessary to protect

public health and the environment.

ADE@Q rule: ADEQ could impose additional requirements

on a POTW, but does not appear to have authority to

impose these on an applier.

Example: An applier registers to apply pasteurized

exceptional quality biosolids from a California POTW.

Because of the high nitrogen content, it is desirable to

require the applier to apply at the agronomic rate in order

to ensure groundwater protection. ADEQ does not have a

mechanism for requiring the applier to apply at the

agronomic rate.

7. EPArule 503.13 Table 1: Sets a ceiling concentration

for Selenium of 100 mg/kg, with no exceptions, and a

cumulative load limit of 100 kg/ha.

ADEQ rule: allows ceiling concentration for Selenium

greater than 100 mg/kg, and cumulative load greater than

100 kg/ha under certain circumstances. This is essentially

a waiver of the selenium limit.

Example: a small POTW that only has to monitor once per

year could apply biosolids with very high selenium levels

for several months but then take additional samples and

meet the ADEQ standards if the average for the year is

greater than 100 mg/kg. ADEQ thus could not take

enforcement action in what would be a violation of 503.13.

There may be an impact from short term effects of high

Selenium concentrations.

8. EPA rule: 503.14(a): prohibits application of sewage

sludge if it is likely to adversely affect a threatened or

endangered species or its designated critical habitat.

ADE@Q rule: Lacks this provision, although it incorporates

503.24(a) by reference, which prohibits the surface

disposal of sewage sludge if it is likely to adversely affect a

threatened or endangered species or its designated critical

habitat. ADEQ states that under its rule, “the issuance of

a permit does not authorize any ... infringement of

federal, state, or local law or regulations.” It also notes

that “the express or implied approval to use, dispose, or

transport under the Articles, falls under the definition of

“license” ... including “the whole or part of any agency

permit, certificate, approval, registration”. However, these

provisions fall short of the prohibition in 503.14(a) because

an applier does not have an independent duty to avoid an

adverse effect under applicable Federal law, though he has

a duty to avoid a “take” under the Endangered Species Act.

The current provisions in the ADEQ rule do not appear to

give ADEQ authority to take enforcement action if a

biosolids application adversely affects a threatened or

endangered species. Furthermore, ADEQ does not have

authority to take enforcement, under the Endangered

Species Act, for impacts to designated critical habitat.

Example: It is found that an applier has razed the critical

habitat cf an endangered plant species. ADEQ does not

have authority to penalize the applier. Further, it would

not have the authority to penalize the preparer, as

contemplated by 40 CFR 503.7 and explained in the

preamble to the sewage sludge regulations.

9. EPA rule: 503.14(d): prohibits application at greater

than the agronomic rate, unless, in the case of a reclamation

site, it is specified by the permitting authority.

ADEQ rule: The ADEQ rule sets requirements for

application at a reclamation site, but does not specifically

require an approval from the permitting authority to

operate the site as a reclamation site.

10. EPA rule: 503.18: requires POTWs and other Class 1

Sludge Management Facilities to submit annual reports to

the permitting authority with the information in 503.17.

ADEQ rule: requires applier to collect this information

from the preparer and to submit it in the applier’s report.

It is unclear whether ADEQ could enforce against POTW

if applier fails to provide preparer’s report to ADEQ.

11. ADEQ lists as a responsibility conducting inspections

of Class 1 Biosolids Management Facilities. It commits to

only 5 inspections per year. There are 17 Class 1 facilities

in Arizona. It does not commit to any inspections of other

majors or minors, when necessary. There are an additional

14 majors which are not Class 1 facilities. A full inventory

of minors has not been provided. There is no provision for

including inspections of biosolids operations during

NPDES inspections of major and minor POTWs.

NPDES Issues

12. 123.27(d): public participation in enforcement actions

State must either allow intervention as of right in any

civil or administrative action to obtain remedies (injunctive

and penalties) OR provide assurances that it will investigate

and provide written responses to all citizen complaints,

not oppose intervention, and publish notice and provide at

least 30 days comment on proposed settlement of state

enforcement action. Could not find.

13. 123.28: state law must provide authority to issue

permits to control the disposal of pollutants into wells.

AG’s statement needs to address.

14. 123.30. Must provide an opportunity for judicial

review in state court of the final approval or denial of

permits that is sufficient to provide for, encourage and

assist public participation in the permitting process. Must

be as expansive as $309. Insufficient if narrowly restricts

the class of persons who may challenge the permit decision

(e.g., if only permittee, or if persons must demonstrate a

property interest near a discharge or injury to pecuniary

interest. Judicial review of approval or denial of permits.

Could not find.

15. ARS 49-262F. Affirmative defense to civil liability.

State law provides an affirmative defense for violations of

water quality standards or permit conditions, if from a

facility that is undertaking cleanup action under CERCLA

or state analog. Federal regulation exempts discharges in

compliance with instructions from an OSC.

16. 123.22(c): PD needs to contain a description of state

administrative and judicial review procedures.

17. R18-9-A902.G.8 — permit exemption for discharges

from charity carwashes, residential swimming pools and

evaporative cooler bleed-off water.

18. Section II of the MOA states that ADEQ is not

seeking authorization to administer the NPDES in Indian

Country, as that term is defined in 18 U.S.C. 1511.

However, the regulations at A902.A.1 require ADEQ, upon

EPA’s approval of the State NPDES program, to give

notice to all Arizona NPDES permittees, “except NPDES

permittees located on and discharging to tribal lands,...”

“Tribal lands” is not a defined term. Need to clarify use of

different terms in regulations and MOA.

19. The State statute defines “navigable waters” as

“waters of the U.S. as defined by §502(7) of the clean water

act.” The Federal statute defines “navigable waters” as

“waters of the United States, including the territorial

seas.” “Waters of the U.S.” is not defined in the Clean

Water Act but in the federal regulations. Therefore, the

AG’s statement should clarify that State’s definition of

“navigable waters” encompasses what is found in EPA’s

regulation and not just the Clean Water Act (which does

not have a definition).

20. The package’s references to “toxic pollutants” are not

consistent with EPA’s. Section 49-201.37 defines toxic

pollutant as a substance that would cause significant

adverse reactions if ingested in drinking water. Other

references in the package to toxic pollutants describe them

as listed under the section 307 of the Clean Water Act as

“injurious to public health”. EPA’s definition of toxic

pollutants are broader and are defined as those pollutants

listed under section 307 of the Clean Water Act regardless

of whether they are injurious to public health. The State’s

narrower definition could be problematic in establishing

discharge limitations for toxic pollutants based on best

professional judgement” (see 122.44), as well as for the

biosolids program.

21. Arizona’s Attorney General’s Statement interprets

the Directors authority at § 49-203(B) for entry, inspection

and sampling, and applying monitoring, recording and

reporting requirements, as applying to those who actually

discharge. However, section § 49-203(B) also extends this

authority to facilities where discharges may occur.

Therefore, AG’s Statement should be amended to be

consistent with state statute and § 308 of the CWA (which

extends to “point sources” which are defined to include

discrete conveyances where discharges “may occur.”)

22. State’s criminal penalty statutes set caps on

penalties for individuals and enterprises. These caps are

set for felonies and for three classes of misdemeanors (see

13-801, 802, 803). Section 49-263.01.H provides “each day of

violation of any provision of the section constitutes a

separate offense.” How do “felony,” “misdemeanor,”

“violation,” and “offense” fit together? i.e. How do multi-day

“violations” fit with penalty caps which are set per “felony”

and per “misdemeanor?”

23. Prohibitions (R18-9-A903.3). Applicable water quality

requirements may include those imposed by EPA (e.g.,

EPA-promulgated water quality standards).

24. It is not clear from the program description that the

resource analysis performed by ADEQ includes the

resources necessary to oversee compliance with storm

water and CAFO regulations and take any necessary

enforcement. In addition, the resources identified for the

pretreatment program may be insufficient. Section IV

states that the NPDES program regulates “approximately

150 facilities” under permit. Apparently not considered are

the approximately 1,500 facilities in Arizona under storm

water general permits and the approximately 100 CAFOs

in Arizona. The current resource allocation appears

inadequate to address this workload when compared to

similar states. At a minimum, the program description

should explain the resources that will be devoted to this

area and the assumptions that were used.

25. The program description assumes that federal

funding will provide 40% of the funds needed to meet

program expenses in “FY ‘03-FY ‘05. This would require

federal funding to increase about 5% each year. We are

concerned about a potential funding gap in the event of a

shortfall in federal funding.

[LOGO] UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105

May 16 2002

Vera S. Kornylak In reply, refer to WTR-5

The Arizona Center for Law

in the Public Interest

18 E. Ochoa St.

Tucson, AZ 85701-1915

Dear Ms. Kornylak:

I am writing in response to your letter dated April 25,

2002, in which you request USEPA’s timeline with respect

to the consultation process under the federal Endangered

Species Act (ESA) for the State of Arizona’s application to

administer the National Pollutant Discharge Elimination

System (NPDES) Program under the federal Clean Water

Act (CWA). Section 7 of the ESA requires federal agencies

to ensure, in consultation with the U.S. Fish and Wildlife

Service (FWS or Service) and/or National Marine Fisheries

Service (NMFS), as appropriate, that any action

authorized, funded, or carried out by the federal agency is

not likely to jeopardize the continued existence of any _

federally-listed threatened or endangered species (listed

species) or result in the destruction or adverse

modification of designated critical habitat for such species.

Before responding to your question regarding the

timeline, we are providing you some background on this

matter. On January 14, 2002, the State of Arizona, in

accordance with Section 402(b) of the CWA, requested

approval from the USEPA for the Arizona Department of

Environmental Quality (ADEQ) to administer the NPDES

Program. On February 15, 2002, USEPA determined that

the State’s submittal was incomplete.’ USEPA and ADEQ

are continuing to work on the issues of concern. Based on

USEPA’s discussions with the State, USEPA expects that

the State will be able to submit a complete application

shortly.

Given the likelihood that the State would submit a

complete NPDES program application in the near future,

USKEPA initiated informal ESA section 7 consultation with

the FWS on the possible approval of ADEQ’s application

pursuant to the 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

Endangered Species Act dated February 22, 2001 .

(National MOA). (A copy of the National MOA is included

for your reference.) Specifically, on January 23, 2002,

USEPA initiated informal consultation with the Service in

a letter requesting a species list. On May 7, 2002, the

USEPA sent an electronic mail memorandum to the

Service attaching a draft version of a Biological Evaluation

that analyzes the potential effects on listed species and

critical habitat associated with EPA’s approval of the State

NPDES program application. Based on a conversation I

had with the Service, we hope to receive the Service’s

response to our draft Biological Evaluation by May 21,

2002. After reviewing the Service’s comments, the USEPA

* The USEPA has 30 days from receipt of a State NPDES program

submission to notify the State whether its submission is complete. 40

C.F.R. § 123.21. If USEPA determines that the State has a complete

program submittal, the USEPA has 90 days from the submittal date to

approve or disapprove the program. See Section 402(c) of the CWA; 40

C.F.R. § 123.61(b).

will continue with informal section 7 consultation and

request the FWS’s written concurrence with USEPA’s

finding that its approval is not likely to adversely effect

listed species or critical habitat, or will initiate formal

consultation with the Service in accordance with Section

V.B.6 of the National MOA.

In response to your question regarding the timeline for

ESA consultation, if the USEPA continues with informal

consultation and requests the Service’s concurrence on

USEPA’s “not likely to adversely affect” determination, then

the Service should respond to USEPA’s request for

concurrence, in writing, within 30 days. If the Service does

not concur, the Service’s response should include the

species and/or habitat of concern, the perceived adverse

effects, supporting information, and rationale. If the

USEPA initiates formal consultation, applicable law

requires that the Service issue a biological opinion within

135 days following initiation of formal consultation. In the

National MOA, the Service agreed to strive to issue a

biological opinion within 90 days of an initiation of formal

consultation. '

I hope that this addresses your concerns. If you have

any additional questions or concerns, please contact Jenny

Mann at (415) 972-3512 or mann.jenny@epa.gov.

Sincerely,

/s/ Terry V. Oda :

Terry Oda Manager

CWA Standards &

Permits Office

Enclosure

[Image Omitted In Printing]

Debra Bills

07/09/2002 01:41 PM

To: Mima Falk/R2/FWS/DOI@GFWS, Kim Hartwig/

R2/FWS/DOI@GFWS, Carrie Marr/R2/FWS/

DOI@FWS

ec: Sherry Barrett/R2/FWS/DOI@GFWS,

Cindy Schulz/RO/R2/FWS/DOI@FWS

Subject: AZ NPDES

Please take a look at this draft initiation letter.

Since EPA has not bothered to separate the no effects from .

the may affects, I don’t want to take the time to do that

now either. Although less than ideal, we can decide later

which species we will concur with. Granted the

information on effects is sparse; we could argue that we

don’t have enough information to initiate, but I’m not sure

what that would gain us.

What do you think about notifying tribes? Will they be

interested? This consultation specifically excludes Indian

lands, but it is a big change for the state.

Other comments welcome.

[File Image Omitted In Printing}

azpdesinitiate.wpd

Debra

AESO/SE

2-21-02-F-xxx

July 9, 2002

Mr. Terry Oda

Manager, CWA Standards & Permits

Environmental Protection Agency

75 Hawthorne Street

San Francisco, California 94105-3901

Dear Mr. Oda:

This letter acknowledges the Fish and Wildlife Service’s

June 24, 2002, receipt of your June 21, 2002, letter

requesting initiation of formal section 7 consultation

under the Endangered Species Act, as amended. The

consultation concerns the possible effects of the approval

of Arizona’s Pollution Discharge Elimination System

program (AZPDES) for all of Arizona, except on Indian

lands. Your letter concluded that the proposed action may

affect but “is not likely to adversely affect” 60 listed

species and critical habitat. Since you have requested

formal consultation, we will proceed with formal

consultation for those species or critical habitat where we

do not concur with your “is not likely to adversely affect

determination.” A full explanation of our concurrence will

be provided as an appendix to the biological opinion.

All other information required of you to initiate

consultation was either included with your memorandum

or is otherwise accessible for our consideration and

reference. Section 7 allows the Service up to 90 days to

conclude formal consultation with your agency and an

additional 45 days to prepare our biological opinion.

Therefore, we expect to provide you with our biological

opinion no later than November 3, 2002. We acknowledge

your request for an expedited consultation. Although we

will attempt to meet this request, given the complexity

of this project we can not guarantee an expedited

consultation. We will, however, provide a copy of the draft

biological opinion, as requested.

In keeping with our trust responsibilities to Native

American Tribes, by this letter we will notify the Tribes

which may be affected by this proposed action and

encourage EPA to invite the Bureau of Indian Affairs to

participate in the consultation process.

Also, as a reminder, the Endangered Species Act requires

that after initiation of formal consultation, the Federal

action agency make no irreversible or ~irretrievable

commitment of resources that limits future options. This

practice insures agency actions do not preclude the

formulation or implementation of reasonable and prudent

alternatives that avoid jeopardizing the continued

existence of endangered or threatened species or

destroying or modifying their critical habitats.

If we can be of further assistance, please contact Carrie

Marr (x 214) or Debra Bills (x 239).

Sincerely,

David L. Harlow

Field Supervisor

cc: Regional Director, Fish and Wildlife Service,

Albuquerque, NM (ARD-ES)

Project Leader, Fish and Wildlife Service, Pinetop, AZ

(Attn: M. Stegman)

John Kennedy, Arizona Game and Fish Department,

Phoenix, AZ

Director, Navajo Fish and Wildlife Department,

Window Rock, AZ

Director, Bureau of Indian Affairs, Phoenix AZ

——

Pascua Yaqui Tribe, Tucson, AZ

Pueblo of Zuni, Zuni, NM

Tohono O’odham Nation, Sells, AZ

Yavapai Apache Tribe,

Colorado River Indian Tribes, Parker, AZ

Fort McDowell Yavapai Nation, Fountain Hills, AZ

Gila River Indian Community, Sacaton, AZ

Havasupai Tribe, Supai, AZ

Hualapai Nation, Peach Springs, AZ

Kaibab Band of the Paiutes, Fredonia, AZ

[LOGO] UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105

OFFICE OF THE

REGIONAL ADMINISTRATOR

Jul. 11, 2002

Ms. Jacqueline E. Schafer

Director, Arizona Department of Environmental Quality

1110 W. Washington

Phoenix, AZ 85007

RE: Completeness Determination for State of Arizona

Submission for NPDES Program Approval

Dear Ms. Shafer:

I was pleased to receive the proposed Arizona

Pollutant Discharge Elimination System (AZPDES)

Program submitted by your staff on June 11, 2002, and the

subsequent supplements on July 8 and July 10. I am

aware of how hard both your staff and mine have worked

on these documents. I look forward to working with you

throughout the remaining approval process.

After review of the proposed AZPDES program, we

have determined that the program submission is

administratively complete for the purpose of 40 CFR

123.21. As required by 40 CFR 123.61, EPA will soon

publish in the Federal Register a notice of the public

hearing and comment period along with a summary of the

State’s proposed program. EPA will also send to area

newspapers a public notice of the program, hearing, and

comment period.

Again, let me congratulate you and everyone at the

State on their fine effort. If my staff can assist you in any

way, please feel free to call.

Sincerely,

/s/ (Illegible]

for Wayne Nastri 11 July 2002

Regional Administrator

Sherry Barrett To: Scott Richardson/R2/FWS/DOI

@FWS. Kim Hartwig/R2/FWS/

07/17/2002 10:33 AM DOI@FWS, Mi Falk/R2/

FWS/DOI@GFWS

ce:

Subject: Re: Consultation with EPA R9

on transferring the NPDES

program to Arizona

fyi

— Forwarded by Sherry Barrett/R2/FWS/DOI on 7/17/2002

10:25 AM —

Susan MacMullin To: Sherry Barrett/R2/FWS/DOI@

07/16/2002 12:13 PM FWS

SeesesGeatial ce: Dale Hall/RO/R2/FWS/DOI@

FWS, Geoff Haskett/RO/R2/

FWS/DOI@FWS, Steve Spangle

/R2/FWS/DOI@FWS

Subject: Re: Consultation with EPA R9

’ on transferring the NPDES

program to Arizona»)

In Printing]

Sherry, it is very possible that EPA has talked to them. I

gave FWS WO. a heads up because if Quarles knows,

probably the Secretary’s Corridor knows. We are going to

meet next week (RO and FO) to discuss the consultation.

Sherry Barrett

Sherry Barrett To: Cindy Schulz/RO/R2/FWS/DOI

; @FWS, Susan MacMullin/RO/

07/15/02 05:07 PM RYFWS/DOI@FWS

ce: Debra _ Bills/R2/FWS/DOI@

FWS, Mima Falk/R2/FWS/DOI

@FWS, Steve Spangle/R2/FWS/

DOI@FWS, Kim Hartwig/R2/

FWS/DOI@FWS

Subject: Re: Consultation with EPA R9

on transferring the NPDES

program to Arizona)

Susan: I have no idea of how Steve Quarles would know

about our internal discussions regarding the level of effect

for this consultation. It is possible that EPA has informed

the development community. I share your sigh.

Sherry

Cindy Schulz

Cindy Schulz To: Mima Falk/R2/FWS/DOI@

; FWS, Sherry Barrett/R2/FWS/

07/15/2002 03:10 PM DOI@ FWS, Debra Bills/R2/

[Image Omitted FWS/ DOI@GFWS

In Printing]

ce:

Subject: Re: Consultation with EPA R9

on transferring the NPDES

program to Arizona'>

— Forwarded by Cindy Schulz/RO/R2/FWS/DOI on

07/15/2002 04:11 PM —

Susan MacMullin To: Geoff Haskett/RO/RYFWS/DOI

07/15/2002 11:12AM @FWS, Dale Hall/RO/R2/FWS/

3 DOI@FWS

gn fer ce: Steve Chambers/RO/R2/FWS/

DOI@FWS, Brian Hanson/R2/

FWS/DOI@FWS, Steve Helfert/

RO/R2/FWS/DOI@FWS, Cindy

Schulz/RO/R2/FWS/DOI@FWS

Subject: Consultation with EPA R9 on

transferring the NPDES

program to Arizona

Geoff and Dale,

The filed office gave me a heads up that this is looking like

a jeopardy. RO and FO are going to meet around the 22nd

to go through what we have. Then we're going to talk to

Terry Oda (Water Permits Chief in R9.) If we can turn this

around, we ‘vill. We will set up a briefing with you shortly.

Greg Beatty To: Debra Bills/R2/FWS/DOI@FWS

07/24/2002 05:00 PM ce: Carrie Marr/R2/FWS/DOI@FWS

[Image Omitted Subject: Re: npdes transfer®

In Printing]

I think it could effect with respect to losing federal

connections in housing developments Harvard (the

Homestead in Camp Verde), Verde Valley Ranch

(jeopardy), or possibly other ground water developments

that could reduce aquifer amounts and/or stream flow as a

result of housing developments or possibly other Clean

Water Act actions. This could be incredibly significant.

Consider that on the Verde River, most WIFLs are

detected in Verde Valley on private land, on San Pedro

River most WIFLs are on private land, on Gila River

(upstream of San Carlos) in the Safford Area WIFLs are on

private land. These are all growing areas. Think about,

that not considering Roosevelt Lake, there are probably

less than 10 pairs of WIFLs known on Forest Service lands

in AZ, probably les than 50 pairs of BLM Land, and

probably less than 40 pairs on FWS land. Much of the

flycatcher is on private land, thus this could have a

devastating effect.

Debra Bills

Debra Bills To: Greg Beatty/R2/FWS/DOI@FWS

07/24/2002 03:43 PM ec: Carrie Marr/R2/FWS/DOI@FWS

[Image Omitted Subject: npdes transfer

In Printing]

Greg

Carrie and I need to talk to you about how the NPDES

transfer from EPA to the state will effect flycatcher.

How will this loss of section 7 consultation effect the

swwt ?

Debra

(Informal undated memo concerning

Southwestern willow flycatcher]

Seventeen occupied bald eagle breeding areas (18 total) of

Arizona’s 43 occupied sites in 2002 were on the Verde

River. While other breeding areas exist in the state, many

are not regularly productive due to a variety of

anthropogenic factors. As a result, the Verde River is

important to the survival of the eagle in Arizona due to its

central location in the state and the amount of productive

eagles. The 12 sites on the Verde River that produced

young in 2002, produced 20 of the 36 fledglings in Arizona.

Therefore, in 2002, the Verde River possessed 40 percent

(17/43) of the state’s occupied breeding areas and 56

percent (20/36) of the state’s productivity.

Five eagle breeding areas (Tower, Perkinsville, Oak Creek,

Camp Verde, and Ladders) exist in closest proximity

(headwaters to Verde Valley) to the area of development

pressure and water pumping.

The Verde River is contained within the Verde River

Management Unit as a part of the recovery strategy in the

draft Southwestern Willow Flycatcher Recovery Plan. To

achieve recovery of the sub-species, there is a recovery

goal of 50 pairs and other additional habitat measures to

be met within this management unit. Four flycatcher sites

have been discovered (Tuzigoot, Camp Verde, Ister Flat

and Horseshoe Reservoir) along the Verde River, with the

only occupied sites presently occurring at Camp Verde and

in the conservation space of Horseshoe Reservoir. These

two sites together possess less than 10 pairs of flycatchers.

Critical habitat was designated for the flycatcher on the

Verde River from SOB Canyon downstream to Horseshoe

Reservoir (now removed). This area encompasses the

Verde Valley downstream to Horseshoe Reservoir.

The San Pedro River at its confluence with the Gila River

(Winkelman site) is ome the densest areas of nesting

flycatchers (118 territories) in the state of Arizona and the

entire range of this subspecies. Three breeding locations

(San Pedro/Gila River confluence, Roosevelt Lake,

CliffGila Valley) throughout the subspecies range have

contained nearly 50 percent of all known pairs (900). As of

the end of the 2001 breeding season, the Winkelman site

represented 34 percent of all flycatcher territories in

Arizona. The importance of this site is emphasized

because it is one of the few free-flowing rivers in Arizona,

will be the largest site in Arizona when habitat at

Roosevelt is inundated, supports flycatcher habitat along

the Gila River, and is threatened by continued

development and groundwater pumping from upstream

users. Critical habitat was designated for the flycatcher on

the upper and lower thirds of the San Pedro River (now

removed).

In Arizona in 2001, 346 flycatcher territories were

recorded throughout Arizona. The Roosevelt Lake (141

territories) and Winkelman (118 territories) totaled 75

percent of the states total (259/346). Following inundation

and loss of habitat at Roosevelt, the Winkelman site will

possess about 58 percent of all known birds in Arizona if

the numbers stay similar. Flows on the San Pedro River

not only support habitat along its banks, but also along

the Gila River at their confluence. Management of

Coolidge Dam upstream of the Gila/San Pedro confluence

is not conducive to the development and maintenance of

habitat without the sediment, natural hydrograph, and

flows provided by the San Pedro River.

Two known consultations have occurred through EPA on

housing developments on the Verde River. The Verde

Valley Ranch, by Phelps Dodge resulted in a jeopardy

opinion for flycatchers and was located at that time, next

to the only two pairs of flycatchers known on the Verde

River. The Homestead at Camp Verde, by Harvard

Investments was also consulted upon for flycatchers by

EPA. Extensive conservation measures developed by the

applicant with the Service was able to avoid incidental

take of flycatchers.

BRIEFING STATEMENT

PREPARED FOR: Region 2 Director

SUBMITTED: July 31, 2002 STATE: Arizona

TITLE: Arizona Pollutant Discharge Elimination

System Program (AZPDES) Transfer from USS.

Environmental Protection Agency (EPA) Region 9

BACKGROUND/STATUS: The State of Arizona

submitted an AZPDES application to EPA Region 9 in San

Francisco on (date?). This program transfer would shift

Clean Water Act responsibilities from the federal

government to Arizona’s Department of Environmental

Quality. (ADEQ). The program transfer would include all

point source discharges and construction stormwater

permits in Arizona, excluding all Tribal lands. EPA

received the application on June 11, 2002 and had 30 days

to notify the State if the application package was

complete. EPA sent AESFO a request for formal

consultation June 21, 2002. They asked for completion of

consultation by September 9, 2002, which is the EPA’s 90

day deadline to approve or disapprove program transfer.

The proposed action is the delegation of the NPDES

program to the State of Arizona. Additionally, the EPA will

fund 40% of the AZPDES program for the next 3 years. We

have informed them that we believe that they need to

consult on both the delegation of the program and funding

of the State’s implementation of the program. EPA

disagrees on the latter; apparently, EPA has never

consulted on funding the program in other states.

The AZPDES Program will cover the following:

1. Issuance of individual permits for discharges from

industrial, commercial, mining, and _ silvicultural

dischargers; animal feeding operations and aquatic animal

production facilities; and domestic wastewater treatment

facilities that include publicly owned treatment works and

privately owned treatment works;

2. Issuance of general permits;

3. Administration of the NPDES pretreatment program;

4. Administration of all stormwater discharge programs,

including municipal storm sewer systems (combined and

separate), general permits for stormwater discharges, and

individual permits for stormwater-only discharges; and

5. Administration of the NPDES permitting programs for

Federal facilities.

The EPA’s BE states that the program transfer is solely an

administrative transfer of authority and, therefore, this

action may affect, but is not likely to adversely affect all 60

listed species and their critical habitats in Arizona. As

background for their effect determination, EPA cited in

their BE the National MOA (among EPA, the Service, and

the National Marine Fisheries Service), which established

enhanced coordination between our agencies on the CWA.

The MOA establishes a process for elevation of AZPDES -

permits for which AESFO may have concerns. However,

EPA will only federalize a permit if the concerns pertain to

water quality. They will not federalize permits where the

action causing the stormwater discharge adversely affects

an upland species. We also have concerns about decreases

in water quantity resulting from such actions and whether

or not EPA will federalize a permit based on our objections

because it is not strictly ‘water quality’.

We anticipate that the proposed action in EPA’s BE will

appreciably reduce the conservation status of the

endangered Pima pineapple cactus, the Huachuca water

umbel, and cactus ferruginous pygmy-owl. Great strides in

minimizing the disturbance of construction projects in the

range of these species to provide for their survival and

recovery will be diminished, if not lost. The EPA will not

analyze indirect effects and cumulative effects for this

action because it is only an ‘administrative shift in

authority’. Since the definition of indirect effects is that it

is caused by the proposed action, later in time, and

reasonably certain to occur, then this action is more than a

shift in program authority: we will lose our section 7 nexus

for consultation, and construction projects in Maricopa,

Pima, Pinal, Yavapai, and Santa Cruz counties will

destroy important habitat and adversely affect listed

species. For example, construction projects in Pima

County are often large housing developments, with > 1,000

homes, for which authorization under the construction

general permit is required from EPA before the grading

can begin. We also know of several large housing

developments planned for Pinal, Pima, and Yavapai

counties. Without our section 7 tools, development will go

forward unchecked in the aforementioned counties. We

also plan to consult formally on the southwestern willow

flycatcher, the razorback sucker, the bald eagle, and the

Gila topminnow. Specific information for the above-listed

species follows.

- Pima Pineapple Cactus (PPC) (Coryphantha scheeri

var. robustispina)

The species was listed in 1993. PPC is restricted to

Pima and Santa Cruz counties in southeastern

Arizona. PPC occurs at relatively low densities (0.04

to 0.5 cactus per acre) across the Altar and Santa

Cruz valleys, up to elevations of 4,000 feet.

To date, we know of approximately 3,680 cacti. Since

the listing, approximately 1,750 cacti (48% of the total

known) have been transplanted or removed from

projects that underwent section 7 consultation. The

amount of PPC habitat lost during that time is

approximately 7,670 acres.

PPC has a relatively low rate of transplant success,

and the majority of cacti that have been moved are

more than likely dead. If they are still alive, they can

be considered ecologically dead because they have

been removed from their habitat and no longer

maintain their ecological connections to the

landscape.

A total of 2,423 acres of Pima pineapple cactus has

been conserved in some manner. Of that amount,

1,146 acres (47%) were conserved’ through

conservation measures gained through section 7

consultation with EPA, specifically on indirect effects

from authorizing general construction storm water

permits. All of this conservation has taken place since

2000.

Approximately 45% of PPC occur on State lands; 5%

on Federal lands; 30% on private lands; and 20% on

Tribal and other ownerships.

A HCP is being planned for the Altar Valley to

address the effects of livestock grazing and fire

management. PPC will be one of the species of

concern. The Arizona State Land Department is

participating in the development of this HCP.

Progress continues on the Sonoran Desert

Conservation Plan, a regional planning effort that

will result in a multi-species HCP. The cactus is

currently one of the species being evaluated, but

proposed conservation measures for any of the species

have not yet been developed.

There is one PPC conservation bank in place (640

acres) on land owned by Pima County. We are

currently working with a private landowner in the

Altar Valley for the establishment of a 1,300-acre PPC

conservation bank.

In order for these conservation banks to function as

conservation tools, there must be an economic

incentive for landowners to participate. If section 7

consultations diminish, then there will be no

“business” to send to the conservation banks.

No projects have been stopped due to section 7

consultation.

There have been a total of 17 formal consultations

since listing; five of them have been with EPA, all

occurred after 2000.

Through review of proposed developments in Pima

County for the years 2001-2002, there are 12 projects

that would require section 7 consultation with EPA on

their issuance of a storm water construction general

permit. These are all projects that are close to known

locations of Pima pineapple cactus and support

suitable habitat. These projects total approximately

3,527 acres.

With no conservation measures in place with EPA and

the State of Arizona, all of this habitat and the Pima

pineapple cactus on these sites would be lost.

The majority of occupied and suitable habitat for this

species occurs on State trust lands. The majority of

these lands are zoned for development. PPC habitat

will continue to be developed and fragmented, and the

species will be at risk of severe decline.

Huachuca Water Umbel (HWU) (Lilaeopsis schaffneriana

var. recurva)

HWU was listed in 1997. Critical habitat was

designated in 1999.

The largest unit of critical habitat is a 33.7-mile reach

of the San Pedro River, located in Cochise County,

Arizona. This portion of the river supports 43

sub-populations of HWU.

HWU is dependent on perennial water. The plant

requires low flow, low velocity, pools and backwaters

that undergo periodic flooding to reduce competition

and shading from larger perennial plants. HWU

needs saturated soil and is dependent on steady

water levels for habitat stability.

The city of Sierra Vista is experiencing tremendous

growth. Housing and commercial developments use

water that is pumped from the San Pedro River.

Section 7 consultations with EPA have allowed for the

development of conservation measures that minimize

the impact of water withdrawals from the San Pedro.

Without a federal nexus, the cumulative effects

associated with continued development could

compromise the water quantity in critical habitat,

reducing the likelihood of the long-term survival and

recovery of HWU.

, —*80

Cactus ferruginous pygmy-owl (Glaucidium brasilianum

cactorum)

The pygmy-ow] was listed in 1997. Its historical range

included much of southern Arizona; current known

locations are in Pima and Pinal counties.

The pygmy-owl is found in a variety of vegetation

communities below 4,000 feet elevation.

To date, AGFD has documented 18 pygmy-owls in

Arizona. Additional pygmy-owls likely occur on the

Tohono O’odham Nation. Surveys are on-going to

determine pygmy-owl populations in Mexico. There

are currently only 2 pygmy-owls known to occur on

Federal lands (Organ Pipe Cactus National

Monument).

Conservation of the species cannot rely on speculative

populations that occur on the Tohono O’odham

Nation. Conversations with Tribal biologists verify

that this population is experiencing the same

environmental stresses created by the on-going

drought, as are other known populations in the state.

Prior to listing of the pygmy-owl and section 7

consultations, most construction in pygmy-owl

habitat was high-density with no conservation.

Pygmy-owls do not utilize areas of high-density

development; in addition to the loss of habitat, the

resulting habitat fragmentation affects dispersal,

courtship and pair bonding. Currently, areas without

a federal nexus continue to be constructed through

mass grading. We know of at least 7 projects with a

federal nexus that occurred in suitable habitat without

consultation; these projects affected approximately 600

acres of habitat.

Through the section 7 consultation process, we work with

developers to reduce development impacts to 20-25%

disturbance in breeding areas, and maintain dispersal

and movement corridors to reduce the likelihood of

genetically isolated populations. We have conducted

12 formal section 7 consultations on development

projects; in addition, there have several consultation

on other actions such as grazing, road improvements,

etc.

We are in informal consultation for 16 residential and

commercial development projects throughout Maricopa,

Pinal and Pima counties solely because of the EPA

federal nexus; these projects consist of approximately

30,000 acres.

Conserving the northwest Tucson meta-population is

essential to the survival of the species; this

population consistently has the highest productivity

of young produced each year and contains 7 of the 18

known pygmy-owls in the state, or approximately 40%

of the population.

It is highly likely that we will lose our ability to

ensure ANY level of pygmy-owl protection without the

EPA federal nexus as demonstrated with the remand

of critical habitat (at which point the COE withdrew

projects from consultation).

Without section 7 consultation, the only other option

is to pursue incidental take violations through section

9; to date, law enforcement is unwilling to pursue

such cases even when housing developments, schools

and commercial projects are constructed within

breeding territories.

Pursuing future HCP’s with private developers is

strictly a voluntary process; without the probability of

‘take’ liability, landowners see no benefit in pursuing

the HCP’s. We have completed one HCP in northwest

Tucson and are working with another private

developer to complete their HCP; and we are working

with Pima County; the Town of Marana, and the Altar

Valley Alliance to develop regional HCP’s; the latter

_ two are pursuing section 6 grants for funding their

planning processes. All are in the planning phases.

e We have approached four developers with projects

occurring within or adjacent tc pygmy-owl territories;

they declined our recommendation to develop HCPs,

and several of those areas are now mass graded.

e Other conservation tools we are using to conserve the

pygmy-owl include: section 6 Recovery Acquisition

Grants and conservation banks.

e Safe Harbors are not an option for lands undergoing

residential development, as construction activities

take the species below baseline conditions. Safe

Harbors work better in rural areas where landowners

desire to enhance the condition of their properties for

species.

e The Recovery Team is evaluating augmentation of

pygmy-ow] subpopulations through a captive breeding

program or through translocation of birds.

Maintaining suitable habitat, especially in the

northern range of the species, is required for

augmentation. Maintaining suitable habitat is

occurring through section 7 consultations with EPA.

¢ Other species that may be adversely affected by water

quantity issues associated with stormwater discharge

permits are the southwestern willow flycatcher, Gila

topminnow, and razorback sucker in the Verde River

and Santa Cruz River watersheds.

Recommended Alternatives

1. EPA retains administration of individual permits

under the stormwater discharge program. If projects

adversely affect a listed species or critical habitat, the

applicant would not be authorized under the construction

general permit, but would be required to obtain an

individual permit. EPA would retain jurisdiction over the

individual permit and would continue to consult with us

on the adverse effects. This portion of the program could

be delegated to the State in the future if they developed an

adequate conservation and review program. This avenue

would not require special conditions on the permit.

2. Since EPA has committed to funding ADEQ for the

next three years, a Federal nexus will be retained for this

time period, which would allow us time to work on

alternatives 3 and 4.

3. We develop a MOU with the State (ADEQ and Arizona

State Lands Department) to maintain the current level of

review and conservation. Within this framework, the State

would establish their own conservation programs to

conserve priority areas for listed species.

4. We develop a HCP with the State to establish

endangered species review of proposed projects and

conservation measures to minimize and mitigate adverse

effects to listed species.

SERVICE/DEPARTMENT ACTION TAKEN: We have

prepared a letter to EPA requesting more information

before we initiate formal consultation. We need more

information regarding the history of permits that EPA has

approved in certain geographical areas of Arizona in the

last 3 to 5 years. We need to establish in the administrative

record that the EPA did not analyze: adverse effects

thoroughly and because of this, we will have to spend time

doing their work for them.

POSITION OF INTERESTED PARTIES: Mining

companies and developers across the state, including those

in Pima County, are interested in this program transfer

before a new governor is chosen in November.

DEPARTMENT/BUREAU PERSPECTIVE: Loss of section

7 consultation for the PPC, pygmy-owl, and HWU will

result in significant effects to their survival and recovery

through destruction, degradation, and fragmentation of

their habitats.

FOR INFORMATION CONTACT: AESFO — Phoenix,

602-242-0210; Carrie Marr (x214), Debra Bills (x239), or

Sherry Barrett (520-670-4617).

{SEAL) United States Department of the Interior [LOGO]

U.S. Fish and Wildlife Service

Arizona Ecological Services Field Office

2321 West Royal Palm Road, Suite 103

Phoenix, Arizona 85021-4951 -

Telephone: (602) 242-0210

Fax: (602) 242-2513

In Reply Refer to:

AESO/SE 2-21-02-F-268

August 20, 2002

Mr. Terry Oda Manager

Clean Water Act Standards & Permits

Environmental Protection Agency

75 Hawthorne Street

San Francisco, California 94105-3901

Dear Mr. Oda:

This letter acknowledges the Fish and Wildlife Service’s

receipt of your June 21, 2002, letter requesting initiation

of formal section 7 consultation under the Endangered

Species Act, as amended. We received your request on

June 24, 2002. The consultation is regarding the effects of

the approval of Arizona’s Pollution Discharge Elimination

System (AZPDES) program for all of Arizona, except on

Indian lands, on federally proposed and listed species and

proposed and designated critical habitat. The U.S.

Environmental Protection Agency (EPA) concluded that

the proposed action may affect but is not likely to

adversely affect all listed species and critical habitat in

Arizona, but also requested initiation of formal

consultation for the action described in the Biological

Evaluation (BE) and our preparation of a biological

opinion.

We will initiate formal consultation on the AZPDES

program as soon as we receive the information necessary

to prepare a complete analysis as outlined in the

regulations governing interagency consultations (50 CFR

402.14). To complete the initiation package, please provide ~

the following information:

1. A description of how the section 7 consultation

process will continue to be implemented

following delegation of the program to the State

of Arizona.

2. A description of the specific area that may be

affected by the action.

The June 21, 2002, BE gave no indication of the areas that

may be affected by the action. Please define where listed

species and their critical habitat may be affected by the

action. Please include a list of all NPDES permits

previously authorized in Arizona and the location covered

in each permit.

3. A description of the manner in which the action

may affect any listed species or critical habitat,

and an analysis of any cumulative effects.

Provide a description of the manner in which the EPA will

ensure that the analysis of indirect effects associated with

the issuance of permits will continue. Please provide a

description of how the analysis will be completed.

Upon receipt of these items, formal consultation will be

initiated. The regulations governing section 7 consultation

allow 90 days for formal consultation plus an additional 45

days to deliver the biological opinion. This 135 day time

frame does not begin until we have received all

information required to initiate formal consultation

as described in 50 CFR 402.14(c). Therefore, we ask that

you request an extension from your September 9, 2002

deadline with the State of Arizona.

We look forward to working with you and State of Arizona

on resolution of these issues. If we can be of further

assistance, please contact Carrie Marr (x214) or Debra

Bills (x239) at (602) 242-0210.

/s/ Brian Hanson

Brian Hanson

Acting Field Supervisor

ce: Regional Director, Fish and Wildlife Services

Albuquerque, NM (ARD-ES)

Project Leader, Fish and Wildlife Service, Pinetop, AZ

(Attn: M. Stegman)

Assistant Field Supervisor, Tucson Suboffice,

Tucson, AZ

John Kennedy, Arizona Game and Fish Department,

Phoenix, AZ

Director, Arizona Game and Fish Department,

Phoenix, Arizona

Regional Supervisor, Arizona Game and Fish

Department, Tucson, AZ

Director, Navajo Fish and Wildlife Department,

Window Rock, AZ

Director, Bureau of Indian Affairs, Phoenix AZ

Pascua Yaqui Tribe, Tucson, AZ

Pueblo of Zuni, Zuni, NM

Tohono O’odham Nation, Sells, AZ

Yavapai Apache Nation, Camp Verde, AZ

Colorado River Indian Tribes, Parker, AZ

Fort McDowell Yavapai Nation, Fountain Hills, AZ

Gila River Indian Community, Sacaton, AZ

Havasupai Tribe, Supai, AZ

Hualapai Nation, Peach Springs, AZ

Kaibab Band of the Paiutes, Fredonia, AZ

W: \Carrie Marr \az npdes bo\azpdesletter. wpd.cgg

[LOGO] UNITED STATES ENVIRONMENTAL

~ PROTECTION AGENCY

REGION IX

75 Hawthorne Street

San Francisco, CA 94105

AUG 22 2002

Mr. Brian Hanson In reply, refer to WTR-5

Acting Field Supervisor

U.S. Fish and Wildlife Service

Arizona Ecological Services Field Office

2321 West Royal Palm Road, Suite 103

Phoenix, Arizona 85021-4951

Dear Mr. Hanson,

On June 21, 2002, the U.S. Environmental Protection

Agency (USEPA) sent the U.S. Fish and Wildlife Service

(FWS) a biological evaluation (BE) and requested the

initiation of section 7 formal consultation under the

Endangered Species Act (ESA) on the USEPA’s proposed

approval of the State of Arizona’s Pollutant Discharge

Elimination System program (AZPDES program). I am

writing in response to your letter dated August 20, 2002,

in which you requested “information necessary to prepare

a complete analysis as outlined in the regulations

governing interagency consultations (50 CFR 402.14).”

In the August 20, 2002 letter, FWS requested:

1. A description of how the section 7 consultation

process will continue to be implemented following

delegation of the program to the State of Arizona.

USEPA Response: It is unclear to the USEPA what

FWS would like the USEPA to describe in response to

this request. As you know and as discussed in the BE,

the USEPA and the FWS have signed a Memorandum

of Agreement describing the manner in which the

USEPA and the Services will work together to ensure

that States administering the NPDES program

protect federally listed endangered and threatened

species. 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 Endangered Species Act dated

February 22, 2001 (National MOA). Those procedures

are designed to facilitate input by the Service into the

State permit-issuing process and, if necessary, commit

the USEPA to exercise its oversight authority over

State NPDES permits to protect species. Those

procedures contemplate close cooperation, but not

section 7 consultation, on State-issued permits in

light of the fact that a State NPDES permit is not a

federal action, but an action of the State undertaken

wholly under State law. As we indicated in our BE

(see parts VI and VII of the BE), the USEPA is

committed to following the procedures in our MOA to

continue to ensure the protection of listed species

after our approval of the State program. Section

7 would apply, however, if a project requiring a

State-issued NPDES permit were to involve a Federal

action, such as a Clean Water Act section 404 permit

from the U.S. Army Corps of Engineers, that may

affect listed species or critical habitat or if EPA were

to object to a State NPDES permit and ultimately

issue a federal NPDES permit for a discharge because

the State failed to satisfy EPA’s objection. And, of

course, sections 9 and 10 of the ESA will continue to

apply to the State and any entities that may receive

NPDES permits in the State of Arizona.

2. The June 21, 2002, BE gave no indication of the

areas that may be affected by the action. Please

define where listed species and their critical habitat

may be affected by the action. Please include a list of

all NPDES permits previously authorized in Arizona |

and the location covered in each permit.

USEPA Response: Part VII of the June 21, 2002 BE

states, “As the location of future discharges cannot be

anticipated, for purposes of this BE, the USEPA has

determined that all Federally-listed [species] and

critical habitats in, adjacent to, or dependent on all

surface waters may be affected by this action.” As it is

impossible to predict the location of future discharges,

the USEPA believes that all areas containing listed

species or critical habitat in, adjacent to, or

dependent on surface waters maybe affected by the

action. A list of such species was provided in Appendix

C to the BE.

The appendix to this letter lists all NPDES permits

authorized in the state of Arizona (excluding NPDES

permits in Indian Country), and, for each such

permit, the facility address and the name of the

receiving water if available. The USEPA has

previously provided FWS with documents containing

this information.

3. Provide a description of the manner in which the

EPA will ensure that the analysis of indirect effects

associated with the issuance of permits will continue.

Please provide a description of how the analysis will

be completed.

USEPA Response: As described in detail in our BE (see

Part V.B. of the BE), we will address any endangered

species-related concerns regarding State-issued NPDES

permits through the coordination process outlined in

the National MOA.

The USEPA believes that the information requested in

your letter, with the exception of a list of all NPDES

permits in Arizona, was provided in the June 21, 2002 BE.

Therefore, we request that FWS consider the June 21,

2002 submission of the final BE as the initiation of formal

consultation. Regardless, we are under a _ statutory

deadline to approve or disapprove the Arizonc program

submission and would appreciate your cooperation in

helping us to conclude this consultation in a timely

manner so that we may meet our statutory deadline, as

agreed by our respective agencies in section V.B.6 of the

National MOA.

We look forward to continuing to work with you on this

consultation, and we are prepared to assist you in

expediting the process. If you have further questions,

please contact Jenny Mann at (415)972-3512 or

mann. jenny@epa.gov.

Sincerely,

/s/ Terry Oda

Terry Oda, Manager

Clean Water Act Standards

and Permits Office

enclosure:

ce: Regional Director, Fish and Wildlife Service,

Albuquerque, NM (ARD-ES)

Project Leader, Fish and Wildlife Service, Pinetop, AZ

(Attn: M. Stegman)

Assistant Field Supervisor, Tuscon Suboffice,

Tucson, AZ

John Kennedy, Arizona Game and Fish Department,

Phoenix, AZ

Director, Arizona Game and Fish Department,

Phoenix, Arizona

Regional Supervisor, Arizona Game and Fish

Department, Tucson, AZ

Director, Navajo Fish and Wildlife Department,

Window Rock, AZ

Director, Bureau of Indian Affairs, Phoenix AZ

Pascua Yaqui Tribe, Tucson, AZ

Pueblo of Zuni, Zuni, NM

Tohono O’odham Nation, Sells, AZ

Yavapai Apache Nation, Camp Verde, AZ

Colorado River Indian Tribes, Parker, AZ

Fort McDowell Yavapai Nation, Fountain Hills, AZ

Gila River Indian Community, Sacaton, AZ

Havasupai Tribe, Supai, AZ

Hualapai Nation, Peach Springs, AZ

Kaibab Band of the Paiutes, Fredonia, AZ a

ARIZONA [Image 340 East Palm Lane, Suite 250

ASSOCIATION Omitted Phoenix, AZ, USA 85004

INDUSTRIES In 602-252-9415 Fax 602-253-7137

, Printing] www.azind.org

September 6, 2002

Matthew Mitchell (WTR-5)

U.S. Environmental Protection Agency Region 9

Water Division

75 Hawthorne Street

San Francisco, CA 94105

Re: Arizona Association of industries Comments in

Support of ADEQ@ Administration of NPDES

Program (67 Fed. Reg. 49,916 through 49,920

(August 1, 2002))

Dear Mr. Mitchell:

The Arizona Association of Industries’ Environment,

Health and Safety Committee (“AAI”) wishes to express its

strong support for the United States Environmental

Protection Agency (“EPA”) timely approval of the

application of the Arizona Department of Environmental

Quality (““ADEQ”) to administer the National Pollutant

Discharge Elimination System (“NPDES”) program in

Arizona (see 67 Fed. Reg. 49,916-20 (Aug. 1, 2002)). AAT

believes that state administration of the NPDES program

through the Arizona Pollutant Discharge Elimination

System (“AZPDES”) program will result in increased

understanding and responsiveness to local conditions,

more timely resolution of permitting and other important

issues, improved communication, greater efficiency, and

enhanced environmental protection. Arizona clearly has

satisfied the régulatery requirements for state program

approval as set forth in 40 C.F.R. Part 123. Accordingly,

EPA should approve the submitted program within the

90-day statutory review period. There is no reasonable

legal or practical basis for any further delay.

AAI also has reviewed the comments to be submitted

on ADEQ’s NPDES application by the Greater Phoenix

Chamber of Commerce and the Arizona Chamber of

Commerce. AAI supports and endorses these comments

and therefore incorporates the Chamber comments by

reference. Thank you for the opportunity to provide

comments on this important matter to the long-term

benefit of the State of Arizona.

Sincerely,

Jeffrey Horner

Jeff Horner

Chairman, Environmental, Health & Safety Committee

cc: Mr. Chris Varga, Federal Permit Unit,

Arizona Department of Environmental Quality

DIAMOND VENTURES INC.

September 9, 2002 2200 EAST RIVER ROAD

SUITE 115

TUCSON, AZ 85718-6586

520 / 577-0200

520 / 299-5602 FAX

E-MAIL: diamondventures@theriver.com

Mr. Matthew Mitchell (WTR-5)

U.S. Environmental Protection Agency Region IX

Water Division

75 Hawthorne Street

San Francisco, California 94105

Re: Support for ADEQ Administration of NPDES

Program (67 Federal Register 49916-20, dated

August 1, 2002)

Dear Mr. Mitchell:

Our firm is an Arizona based, regional real estate

development company that is frequently involved with

land development projects in various locations around the

State of Arizona and other states in the southwestern

United States. We, therefore, are very familiar with the

requisite federal, state and local permitting procedures

associated with the activities of our firm.

Diamond Ventures, Inc. respectfully requests that the

United States Environmental Protection Agency (“EPA”)

approve the application of the Arizona Department of

Environmental Quality (“ADEQ”) to administer the

National. Pollution Discharge Permit System (“NPDES”)

program, as referenced above. Support for this application

comes from a wide range of “stakeholders” and a vast

majority of the regulated community. The application is

fully supported by the State of Arizona with approval (by

2/3rds margin) by both houses of the Arizona Legislature.

The Arizona Governor’s Office and Arizona Legislature

placed the highest priority upon this application and

resulting program by establishing a full funding

commitment to ADEQ for the administration of this

program, even though these are lean years for state

government.

Our firm believes that the adoption of the program is

good for the State of Arizona and strongly supports the

transition of permitting responsibility from EPA Region IX

to ADEQ. The following reasons support this conclusion:

1.) Local Control and Understanding of

Local Conditions: A state agency is better

prepared to understand and respond to local

conditions in a manner that will result in

improved environmental quality for future

generations. The administration of NPDES

program by the individual states has been

embraced by the U.S. Congress, through the

Clean Water Act, and implemented in 44

states.

2.) Improved Communications: Improved

environmental protection is dependent upon

the quality of communication between the

regulatory agency and regulated community.

ADEQ maintains offices in Phoenix, Tucson

and Flagstaff and is therefore in an

advantageous position to maintain the

highest quality and direct communication

with the regulated community.

3.) ADEQ Qualifications: ADEQ has

demonstrated that it is fully capable of

administering complex environmental

programs. With committed resources, as

4.)

mentioned above, the agency has extensive

permitting and enforcement experience

under the current NPDES and Aquifer

Protection Permit programs. Contrary to

certain criticisms leveled at ADEQ relative

to the proposed application, ADEQ is fully

capable to administer the Arizona Pollution

Discharge Permit (“AZDES”) program.

Endangered Species and _ Historic

Properties: The U.S. Congress has

expressed a strong preference to have states

take the lead role in the protection of waters

within their boundaries so long as sufficient

program support is generated within states

and so long as the statutory elements of the

Clean Water Act are satisfied. The AZDES

program has been designed consistent with

the programs in place in 44 other states

relative to the Endangered Species Act and

Section 7 consultations with the U.S. Fish

and Wildlife Service. Like other states that

administer pollution discharge permits,

procedures have been built into the AZDES

program to provide the appropriate and

legally mandated oversight of the program

by EPA and U.S. Fish and Wildlife. The fact

that Arizona would not be subject to a

Section 7 consultation requirement when

issuing a permit under the AZDES program

is not unusual and is, in fact, typical.

The protection of historic properties is not a

significant concern of the approval of the

AZDES program in that, like under the

Endangered Species Act, ADEQ is not

required to consult with the State Historic

Preservation Office (“SHO”) (in accordance

with Section 106 of the National Historic

Preservation Act.) In the same manner as

stated above, the AZDES program is

designed consistent with the programs in

place in the vast majority of states relative

to the National Historic Preservation Act.

In closing, we urge you to approve the ADEQ application

to administer the NPDES program. We are confident that

such action will result in enhanced environmental

protection within the State of Arizona and improved

environmental quality for future generations of Arizona

residents.

Sincerely, _

/s/ K. Abrahams

Kenneth D. Abrahams Vice President

Withey Anderson & Morris

A PROFESSIONAL LIMITED LIABILITY COMPANY

ROBERT D. ANDERSON 2525 East Arirona

DIRECT: (602) 346-4600 Biltmore ‘i. cle

EMAIL: randerson@wample.com Suite A-212

Phoenix, Arizona 85016

Telephone (602) 230-0600

Facsimile (602) 212-1787

September 13, 2002

Via F. ress

Matthew Mitchell (WTR-5)

U.S. Environmental Protection Agency Region 9

Water Division

75 Hawthorne Street

San Francisco, CA 94105

Re: Comments in Support for Administration

of the NPDES Program by the Arizona

Department of Environmental Quality

67 Fed. Reg. 49916-20 (Aug. 1, 2002)

Dear Mr. Mitchell:

On behalf of the Southern Arizona Home Builders

Association (“Association”), we appreciate the opportunity

to submit the following comments in support of the Arizona

Department of Environmental Quality (“ADEQ”) application

to administer the National Pollutant Discharge Elimination

System (“NPDES”) program. See 67 Fed. Reg. 49916 (Aug. 1,

2002). The Association has over 700 members and represents

builders, developers, contractors, and others engaged in

the development and construction of single-family homes

and apartments. The Association has a _ substantial

interest in administration of the NPDES program because

our meinbers are generally required to obtain storm water

permit coverage for construction activities and to comply

with storm water pollution prevention planning

requirements. The following discussion provides the basis

for the Association’s support of the Arizona Pollutant

Discharge Elimination System.

I. Approval of the ADEQ’s Application Will

Result in Improved Communication, Better

Understanding of Local Conditions, More

Efficiency And Enhanced Environmental

Protection.

We strongly support ADEQ’s application based on the

principle that the government closest to the people is the

best government. Although we appreciate Region 9’s

administration of the NPDES program in Arizona, state

administration of the NPDES program through the

Arizona Pollutant Discharge Elimination System

(‘AZPDES”) program will allow for improved

communication, better understanding of local conditions,

more efficiency and enhanced environmental protection.

¢ Improved communication. It is essential to the

operation of any regulatory program that open and

constant lines of communication be maintained

between the regulated community and the agency.

If good communications are maintained, many

problems associated with permitting and

compliance can be resolved informally, with

minimal devotion of resources. An agency such as

ADEQ, with offices in Phoenix, Flagstaff and

Tucson, is in a better position to maintain

communication with the regulated community

here in Arizona than is an EPA Region based in

San Francisco, notwithstanding the best efforts

of EPA to do so with more limited local resources.

The opportunities for face-to-face and onsite

meetings, so essential to good communications,

will be substantially enhanced.

Increased understanding of local conditions. A

state agency is in a better position to understand

local conditions and to respond to those

conditions in a manner that best enhances

environmental protection. Congress recognized

this in the Clean Water Act (“CWA”) itself by

allowing the states to take the lead in setting

water quality standards and implementing the

TMDL program, and in requiring EPA to step

back from administering the NPDES program if

a state develops its own program that meets

CWA requirements. This attention to local

concerns is highlighted in the AZPDES enabling

legislation, which allows the ADEQ Director to

“adopt rules to reflect local environmental

conditions to the extent the rules are consistent

with and no more stringent than the Clean

Water Act and this article.” Ariz. Rev. Statutes

§ 49-255.01(E).

More Efficiency. We believe that ADEQ is in a

position to administer an efficient program for a

variety of reasons. Obviously, locating offices closer

to the permittees is inherently more efficient, with

less time devoted to travel and the logistics of

communicating over long distances. Further,

ADEQ has the expertise to administer this

program, having had extensive involvement in

the NPDES program -under EPA’s leadership

(ADEQ currently drafts NPDES permits for the

majority of facilities in Arizona) and having

extensive experience in running its own Aquifer

Protection Permit (“APP”) program (which, like the

NPDES program, contains both technology-based

and standards-based permitting requirements).

Finally, the factors discussed previously,

improvements in communications and increased

sensitivity to local concerns will enhance

efficiency. For example, a deeper understanding

of local conditions allows resources to be devoted

to those areas of greatest local concern.

Furthermore, additional operating and budget

efficiencies can be achieved through the

interaction of the AZPDES program with other

state programs, such as Arizona’s APP program.

Some projects often require both an APP and

NPDES permit, and it makes sense to have one

agency do both. Moreover, because most existing

facilities in Arizona requiring an APP already

have that permit, or are in the process of

obtaining it, ADEQ already has a level of

familiarity with sites that should help streamline

permitting if those sites require an NPDES

permit as well.

e Enhanced environmental protection. The inevitable

result of improvements in communications,

sensitivity to local conditions, and program

efficiencies is improved environmental performance.

We support a clean environment and sound

regulatory policies that lead to a clean environment.

Transfer of this program to ADEQ, with the

increased resources devoted to the program and

improved efficiencies, should lead to a cleaner

environment for all Arizonans.

' State law establishes a deadline of January 1, 2004 for most

existing facilities to obtain an APP. See Ariz. Rev. Statutes § 49-241(D).

II. The State of Arizona Is Committed to the

NPDE am and E lily Capable

of Administering the Program Well.

Surprisingly, opposition to ADEQ assumption of the

NPDES program has arisen in some quarters because of

concerns over the State of Arizona’s willingness to support

the program and ADEQ’s ability to manage the program.

We find these criticisms unfounded.

¢ The State of Arizona has shown a solid

commitment to the AZPDES program. The

Arizona Legislature has recognized the benefits

of state administration of the NPDES program.

Both houses of the Arizona Legislature approved

the enabling legislation (House Bill 2426) with

bipartisan support and by two-thirds margins or