Joint Appendix — Environmental Protection Agency v. Defenders of Wildlife
Supreme Court brief2007
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@)| ‘FILED
Nos. 06-340 and 06-549 otmhe ty | 2007
In The | OFF. = OF THE OLEAt
Supreme Court of ‘the United: States-——=
NATIONAL ASSOCIATION OF
HOME BUILDERS, et al., Petitioners,
Vs.
DEFENDERS OF WILDLIFE, et al., Respondents.
e
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
¢
Pau D. CLEMENT NORMAN D. JAMES
Solicitor General (Counsel of Record)
(Counsel of Record) FENNEMORE CRAIG, P.C.
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
Altorney 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
(2U2) 266-8200
(202) 266-8161 (facsimile)
Attorneys for National
Association of Home
Builders, et al.
MATTHEW J. MCKEOWN
Acving 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
Relevant Docket Entries: Defenders of Wildlife
v. U.S. Environmental Protection Agency. Nos.
03-71439, 03-72894, No. CIV 02-195-TUC-CKJ.......... 1
1/23/2002 letter from Terry Oda to David
Harlow requesting initiation of informal
icine icauitiaicentesinatiaiianitasinessiaaeiiiiniiiliddiaiieasiaiaeteida 7
2/15/2002 letter from Alexis Strauss to Karen
Smith regarding concerns on Arizona’s
i cicciiieicisiissniicgriniinniduiinitaaiabiteieidiansianidamntiniindainipaaiienetian 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 ciictniestticsccnisnicctsctnnscipitninninnininiains 27
7/09/2002 letter from David Harlow to Terry
Oda with cover e-mail dated 7/09/2002 from
SEIT TI icinsiciisaidenediiceinciteadedtahanseaisiapsennanmintiansidaniniiinns 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 .............ccecceeeeeeeees 36
INGE CIE iciteiintinciinictidihintilituentiintinnniacienumemenies 39
Informal undated memo concerning Southwestern
ED cciccencussiniiccsbiubicniieiuinsnscnsistiinndsiniebionnides 41
7/31/2002 Briefing Statement ...................ccceseceeseeeees 44
8/20/2002 letter from Brian Hanson to Terry
| EEC Ne eno ae eI ee RR ARE Et RE NT 55
13.
14
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
i
JOINT APPENDIX
TABLE OF CONTENTS -- Continued
Page
8/22/2002 letter from Terry Oda to Brian
REE E Re eh ter ese RI MOC om RD ee ase 59
9/6/2002 letter from Jeffrey Homer to Matthew
ERD Ae He eH earl OR SHDN este N EO aD arte 64
9/9/2002 letter from Kenneth Abrahams to
SER NRO NN Me RANT rn EIR 66
9/13/2002 letter from Robert Anderson to
EASIER ALESIS eae ORR Nee ero 70
9/13/2002 comments from Vera Komylak to
Matthew Mitchell on Arizona application................ 82
9/14/2002 letter from David Kimball to
CIS LEC OLIN FEST AD OOO TOOT TITIES 94
Undated letter from Connie Wilhelm to
TITEL Lea TENET 106
9/16/2002 letter from Bob Broscheid to
ERSTE SEIS EEE Ser ear aaah ee nON Base 118
SLE IAL ELLA LL 120
9/26/2002 letter from Steven Spangle to Terry
REA IER Pie ta atehe One ee ee PERN Me eee OAT NC ETIeD 124
Undated FWS internal analysis of NPDES
transfer to the State of Arizona ...........cc.ceecceeceeeeees 127
9/27/2002 e-mail from Gary Frazer...................::00064 140
10/09/2002 memo entitled “Briefing for the
Assistant Diréctor for Endangered Species”........... 141
10/16/2002 letter from Terry Oda to Steven
IIIT cciscistisciassiinseisaetceiniuenindariadadeinanabnendiciiieinsttinapimieasaitin 145
27.
28.
29.
30.
31.
32.
33.
34,
35.
36.
37.
38.
39.
ill
JOINT APPENDIX
TABLE OF CONTENTS - Continued
Page
10/17/2002 memo entitled “Briefing for the
gg EERE RS NR were te Ie NE OOS toe 147
11/18/2002 letter from John Kennedy to Steve
IIT isthinds sais ina iibianhalidaaieaiainiieiischbaiodiid ial iebepietaminan 149
11/20/2002 letter from Terry Oda to Steven
REE EAE Noel Ronen re ee a Ee 152
12/02/20002 letter from Terry Oda to Steven
REE TREES eee RNR nee aR near 161
12/04/2002 letter from Steven Spangle to Terry
I ceeds lacie een cian at 167
12/05/2002 letter from Nastri to Hull
regarding approval of Arizona’s applicat: ° .......... 190
12/05/2002 EPA Responses to Comments on
Arizona’s Application with Notice of Proposed
arTerniliticiceacenasedcuieceaceeesoncnsicicilae asin cesaltiiinideesiibcateaidsbensienain 192
4/02/2003 Petition for Review ...............ccccccseeeneseeees 257
5/01/2003 Home Builders Motion to Intervene
and Supporting Memorandum.......................0cee0000+ 270
7/17/2003 Order of District Court... 312
7/27/2005 letter from Robert Gulley, counsel
for EPA, to the Ninth Circuit Clerk........................ 321
8/4/2005 letters from Robert Gulley to the
I 323
9/17/02 letter from Alexis Strauss, EPA, to
I a aliaaielae 327
iv
JOINT APPENDIX
TABLE OF CONTENTS -- Continued
Page
40, E-mails of 10/15/03, 7/23/02 and 7/25/02 ..........:000+- 328
41. 11/27/02 letter from Steven Spangle to Terry
IIE ecccossensssnsrensuceesesctunenndetuduehinnnsnninesimalenmeeianiianlall 331
The following items were reproduced in the Petitions for
Writ of Certiorari and are not reproduced herein:
42.
43.
44,
45.
46.
47.
48.
49
50.
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
6/21/02 letter from EPA to FWS requesting
initiation of formal consultation ...HB Pet. App. 583-586
6/21/02 Biological Evaluation on proposed approval
of Arizona’s NPDES program .... HB Pet. App. 587-620
8/01/02 Federal Register Notice of Application
to Administer NPDES Program ..HB Pet. App. 543-561
10/04/2002 EPA/DOI Interagency Elevation
Document, Summary of Issues _ for
eR comeictencncismmmneninniins .HB Pet. App. 562-582
12/03/2002 FWS Biological Opinion.. HB Pet. App. 77-125
8/22/05 opinion of the court of appeals... HB Pet. App. 1-68
/08/06 order of the court of appeals on
petitions for rehearing ............... HB Pet. App. 134-158
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
NN icorcscmanctenmenaiaians 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
eo 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. 11lla-116a
1
DOCKET ENTRIES
U.S. Court of Appeals for the Ninth Circuit
04/03/03
05/01/03
05/02/03
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 ARIZONAS, 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)
2
12/19/03 RECEIVED ORIGINAL AND 16 COPIES
PETITIONERS’ REPLY BRIEF OF 39
PAGES. (File date 12/19/03)
09/02/04 CALENDARED: SAN FRANCISCO
NOVEMBER 1, 2004 9:00 AM. COURTROOM
i (File date 09/02/04)
08/22/05 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)
09/20/05 FILED ORDER (MARSHA S. BERZON)
RESPONDENTS’ MOTION FOR AN
EXTENSION OF TIME TO FILE A
PETITION FOR REHARING OR PETITION
FOR REHEARING EN’ BANC IS
GRANTED. THE PETITION SHALL BE
FILED NO LATER THAN 10/20/05. (File
date 09/20/05)
09/30/05 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)
3
10/19/05 FILED INTERVENOR-RESPONDENT
PETITION FOR REHEARING EN BANC.
~ (PANEL ALL ACTIVE AND ANY
INTERESTED SENIOR JUDGE). (File date
10/19/05)
10/20/05 FILED RESPONDENT USEPA & US FISH
AND WILDLIFE SERVICE’S PETITION
FOR REHEARING EN BANC. (File date
10/20/05)
11/14/05 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)
12/23/05 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)
06/08/06 FILED ORDER DENYING PETITIONS
FOR REHEARING AND REHEARING EN
BANC. (File date 06/08/06) |
06/12/06 FILED INTERVENORS’ JOINT MOTION
TO STAY MANDATE; SERVED ON
06/12/06. (File date 06/12/06)
06/15/06 FILED INTERVENOR STATE OF ARIZONA'S
MOTION FOR STAY THE MANDATE;
SERVED ON 06/13/06. (06/15/06)
06/15/06 FILED RESPONDENT’S MOTION WITH
DECLARATION TO STAY THE MANDATE.
(File date 06/15/06)
4
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 COMPLAINT FILED (File date 4/17/02)
01/09/03 42 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)
01/31/03 49 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)
01/31/03 50 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
06/02/03 151
5
DECLARATION OF ALAN LURIE BY
SOUTHERN ARIZONA HOME BUILDERS
ASSOCIATION. MODIFIED ON 04/09/2003.
(File date 01/31/03)
ORDER BY JUDGE CINDY K.
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
6
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)
7
[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 auihority 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
8
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 wkstewater 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
9
habitats. If you have any questions, please contact Jenny
Mann of my staff at (415) 972-3512.
Sincerely,
/s/ Terry Oda
Terry Oda, Chief
CWA Standards and
Permits Office (WTR-5)
Enclosure
10
[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
11
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.
12
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
13
[Image Omitted In Printing]
Matthew Mitchell
02/28/2002 07:08 PM
To: Jane DeRose-Bamman <DeRose-Bamman.Jane@
ev.state.az.us>
ce: 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
14
Arizona Program Submission - Major Issues
(definition missing)
Issue Regulatory Citationor | 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.i(a) 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
15
6. Additional Subpart B Land Application
requirements for | 503.10 Applicability
iers to
— ete nary 503.10(bX2) 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
biosolids
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
16
123.30
40 CFR 122.3(d) (AZ goes
beyond scope) AR'S 49-262F
123.22(c)
R18-9-A902.G.8
18. Definition of
Tribal lands
19. Definition of
navigable waters
(State regs lack
language
comparable to
40 CFR 1222)
17
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
18
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
19
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.
ADE@Q 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 am area near an endangered species habitat. It is
20
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 and
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. EPArule 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.
ADEQ rule: ADEQ could impose additional requirements
on a POTW, but does not appear to have authority to
impose these on an applier.
21
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
22
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 of 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.
23
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
24
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
25
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 Genera!’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
26
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
resourcg 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.
27
{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:
| 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
28
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,
USEPA 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 |
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).
29
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
30
[Image Omitted In Printing]
Debra Bills
07/09/2002 01:41 PM
To: Mima Falk/R2/FWS/DOI@FWS, Kim Hartwig/
R2/FWS/DOIGFWS, Carrie Marr/R2/FWS/
DOI@FWS
cc: 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
31
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 v 3 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
32
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
ce: 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
33
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
34
[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.
35
| 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
36
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@FWS
cc:
Subject: Re: Consultation with EPA R9
on transferring the NPDES
progran to Arizona
fyi
— Forwarded by Sherry Barrett/R2/FWS/DOI on 7/17/2002
10:25 AM —
Susan MacMullin To: Sherry Barrett/RY/FWS/DOI@
07/16/2002 12:13 PM FWS
nseesttiatinad cc: 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 arid FO) to discuss the consultation.
Sherry Barrett
Sherry Barrett To: Cindy Schulz/RO/R2/FWS/DOI
"7 @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/
37
DOI@FWS, Kim Hartwig/R2/
FWS/DOI@GFWS
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 disct ssions 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@FWS
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/R2/FWS/DOI
; @FWS, Dale Hall/RO/R2/FWS/
07/15/2002 1:12AM rin Bn.
ge every 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
38
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 will. We will set up a briefing with you shortly.
39
Greg Beatty To: Debra Bills/R2/FWS/DOI@FWS
07/24/2002 05:00 PM cc: 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 03:43PM ce: 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.
40
How will this loss of section 7 consultation effect the
swwt?
Debra
41
{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
42
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 one 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. Thé 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.
44
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 (IPA) 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
consu!t 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.
45
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 fof 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
46
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.
47
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
laridscape.
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
48
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 ‘he Pima
pineapple cactus on these sites would be lost.
49
The majority of occupied and suitable habitat for this
species occurs on State trust lands. The maiority 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.
50
Cactus ferruginous ‘pygmy-owl (Glaucidium brasilianum
cactorum) |
The pygmy-owl 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-ow!ls 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%
51
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 corsultation 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
52
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.
e 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
53
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.
54
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).
55
{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.
56
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 $0 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
57
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
cc: 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
58
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
59
[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, S 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 USHPA to describe in response to
this request. As you know and as discussed in the BE,
the USEPA and the FW$ have signed a Memorandum
60
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 Wildiife
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 werc
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
61
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 availabie. 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
62
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 Arizona 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 Oca
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
63
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
64
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)). AAI
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 regulatory requirements for state program
approval as set forth in 40 C.F.R. Part 123. Accordingly,
EPA should approve the submitted program within the
65
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
66
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
67
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.)
68
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 (“SH?O”) (in accordance
with Section 106 of the National Historic
69
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
70
Withey Anderson & Morris
A PROFESSIONAL LIMITED LIABILITY COMPANY
ROBERT D. ANDERSON 2525 East Arizona
DIRECT: (602) 346-4600 Biltmore Circle
EMAIL: randerson@wample.com Suite A-212
Phoenix, Arizona 85016
Telephone (602) 230-0600
Facsimile (602) 212-1787
September 13, 2002
Via Federal Express
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
71
our members 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
adminis.ration 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
72
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
73
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.
¢ 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).
74
II. The State of Arizona Is Committed to the
NPDES Program and ADEQ Is Fully 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
more on final passage. In addition, the
Legislature has fully funded the NPDES
program despite severe budget pressures facing
Arizona and most states. In 2001, the
Legislature budgeted $472,400 and 9 FTE
positions in FY2001-02 and $432,500 and 9 FTE
positions in FY2002-03 from the General Fund in
order to provide ADEQ the additional resources
necessary to fully administer the AZPDES
program (the State already had 10 federally
funded FTEs devoted to the program). Despite
budget cuts of over ten per cent for ADEQ and
other state agencies during the last two budget
years, the Legislature and the Governor have
maintained full funding for the AZPDES
program. Although any government program,
state or federal, is subject to the vagaries of the
budget process in the future, the fact that
AZPDES funding survived the state’s recent
budget cuts is a sign of Arizona’s firm
commitment to the program.
75
¢ ADEQ is fully capable of administering this
program well. In addition to the expanded
resources made available by the Legislature,
ADEQ has extensive permitting and enforcement
experience under the NPDES and APP programs,
as noted above. The APP program in particular
has been developed and managed entirely
independent of federal direction or oversight.
Ill. The Effects of Approving ADEQ’s Application
on Endangered Species and Historic Property
Are Exaggerated and in Any Event Do Not
Provide a Basis for Denying or Delaying
Approval of ADEQ’s Application.
Concerns have been raised about the implications of
EPA approval of ADEQ’s program on endangered species
and historic properties. We believe these concerns are
exaggerated and in any event do not provide a basis to
deny or delay approval of Arizona’s program. EPA is
required under 33 U.S.C. § 1342(b) to approve Arizona’s
program if it meets the statutory elements set forth in the
Clean Water Act. This expresses Congress’ decision to
allow a state to take the lead role in. protection of the
waters within its boundaries if it can establish an
adequate program to do so.
The endangered species concerns revolve around the
fact that EPA, as a federal agency whose actions are
subject to Section 7 of the Endangered Species Act
(“ESA”), is now required to consult with the U.S. Fish &
Wildlife Service (“USFWS”) to ensure that its permitting
actions do not jeopardize the continued existence of a
listed species or result in the destruction or adverse
modification of the critical habitat of such species. ADEQ,
76
as a state agency, will not be required to formally consult
with USFWS when it issues permits. As an initial matter,
ADEQ is not required to consult because the ESA imposes
consultation requirements only on federal agencies taking
action, not on state agencies. The other 44 states operating
approved NPDES programs, including every other state in
Region 9, do net engage in consultation when issuing state
NPDES permits. The fact that Arizona would not be
subject to a Section 7 consultation requirement when
issuing a state NPDES permit is neither unusual nor
unintended.
Moreover, substantial protections for endangered
species remain, both within the AZPDES program and
outside it:
¢ AZPDES rules require that USFWS and other
agencies with an interest in endangered species
will be provided with copies of draft permits and
invited to comment on those permits. Federal
regulations (see 40 C.F.R. § 124.10(c)(1)(iii))
require that copies of draft permits be provided
to federal and state agencies with jurisdiction
over fish, shellfish and wildlife resources, which
would include, inter alia, USFWS and the
Arizona Game and Fish Department. Federal
regulations (see 40 C.F.R. § 124.59(b)) also invite
these same agencies to submit comments on the
draft permits and to advise EPA in writing if the
imposition of specified conditions in the permit is
necessary to avoid substantial impairment of
fish, shellfish or wildlife resources. EPA may
include these specified conditions in a permit to the
extent they are determined necessary to carry out
EPA's authority under the Clean Water Act. These
same requirements are contained in the AZPDES
regulations. See A.A.C. R18-9-A907(A)\(3d) &
77
R18-9-A908(A)(4)(b). Moreover, EPA’s own review
of the draft permits presumably will be
coordinated with USFWS to ensure that USFWS
concerns are addressed to the extent of EPA’s
authority under the Clean Water Act, as set forth
in the 2001 Memorandum of Agreement (“MOA”)
between the agencies entitled Enhanced
Coordination Under the Clean Water Act and
Endangered Species Act. See 66 Fed. Reg. 11202,
11215-16 (Feb. 22, 2001). That MOA applies to
coordination between federal agencies under the
ESA, and does not require or contemplate that
any additional procedures regarding endangered
species will be in place at the state level.
Effluent limitations established in AZPDES
permits wil! largely be driven by surface water
quality standards established by ADEQ under
EPA oversight, since these standards are typically
more stringent than technology-based standards
for the same pollutants. Surface water quality
standards are reviewed every three years. ADEQ
just completed its latest triennial review early
this year. Surface water quality standards, which
are constantly under review as additional data is
gathered, are designed to be protective of all
species, including threatened and endangered
species. Nevertheless, the 2001 EPA/USFWS
MOA calls for additional steps to be taken to
verify that surface water quality standards are
and remain protective of endangered species,
including a national consultation on EPA’s
existing CWA § 304(a) aquatic life criteria (which
form the basis of most states’ water quality
standards, including Arizona's). See 66 Fed. Reg.
at 11212. When combined with EPA's oversight
authority and coordination with USFWS, these
protections should nean that discharges
78
permitted by ADEQ will not adversely affect
listed species.
¢ Many projects that may affect endangered species
will continue to be subject to Section 7
consultation because of the continued involvement
of a federal agency even after Arizona’s NPDES
application is approved. The extent of federal
control and involvement in this state is
pervasive. The federal government owns almost
70% of the land in this state (including tribal
lands). Furthermore, many development and
discharge activities involve federal permitting or
funding (which triggers Section 7 consultation),
such as fill activities in watercourses regulated
by the Corps of Engineers, energy projects
regulated by the Federal Energy Regulatory
Commission, or transportation and water
projects involving the U.S. Department of
Transportation or the federal Bureau of
Reclamation.
¢ Private action outside of Section 7 that results in
a “taking” (i.e., killing, capturing or harming
members of a listed species of wildlife) is
prohibited by Section 9 of the Endangered Species
Act unless a separate permit is obtained from
USFWS. This prohibition applies to all activities,
whether associated with a federal permit or not,
and will not be affected by the approval of an
Arizona program.
Protection of historic properties should not be a
significant concern for approval of ADEQ’s program.
Similar to the ESA Section 7 obligation, EPA is required
under Section 106 of the National Historic Preservation
Act (“NHPA”) to consult with the State Historic
Preservation Office (“SHPO”) to identify and address
79
adverse impacts of federal actions on sites listed on or
eligible for listing on the National Register of Historic
Places. ADEQ will not be required to consult with SHPO.
However, it is our understanding that since cultural
resources generally are located outside of aquatic areas,
and are not affected by the quality or nature of the
discharges permitted under the NPDES program, there has
been relatively limited review of permitted activity under the
EPA-administered NPDES program. In any event, federal
NPDES regulations (see 40 C.F.R. § 124.10(c\1)(iii)) require
that copies of draft permits be provided to the State Historic
Preservation Officers and any affected Indian Tribes. This
same requirement also appears in the AZPDES
regulations. See A.A.C. R18-9-A907(A)(3)(c) & (d).
As noted above, many projects that require a NPDES
permit also require other federal permits (e.g., CWA
Section 404 permits); for these projects, NHPA
requirements will continue to apply even if the NPDES
program is administered by ADEQ. Moreover, significant
protections exist outside of the NPDES program for
historic properties and other cultural resources, as well as
human remains. Disposition of state property, including
State of Arizona trust lands where a substantial amount of
private development occurs, is subject to state historic
preservation requirements, including consultation with
SHPO. Finally, the State of Arizona has a burial law that
prohibits the disturbance of human remains and funerary
objects without following a process for the orderly
disposition of those remains and objects, including
coordination with appropriate Native American tribes. See
A.R.S. § 41-865. Violation of this state statute is a criminal
offense. See A.R.S. § 41-865(G) & (H).
80
Although protections continue to exist for endangered
species and historic properties, debating the sufficiency of
those protections misses the point of this proceeding. EPA
is being asked to approve the assumption by ADEQ of a
permitting program that, if approved, will significantly
strengthen the protection of water quality in the state. For
example, ADEQ has historically assisted EPA Region 9’s
limited permit staff for Arizona (we believe there may only
be two) in administering the NPDES program with ten
full-time federally funded positions. As noted above, the
Arizona Legislature’s FY2001-02 and FY2002-03 funding
of the AZPDES program has resulted in nine additional
new FTEs on the ground in Arizona dedicated to AZPDES
implementation and enforcement (with EPA Region 9 staff
continuing to play an oversight role). The AZPDES
program clearly will result in a significant increase in the
resources dedicated to water quality protection under the
federal NPDES program.
Concerns over endangered species and historic
properties are properly addressed within the context of
laws designed to protect those resources. Congress has
spoken and neither the ESA nor the CWA requires state
governments implementing approved programs to consult
with USFWS on their permitting actions, and neither the
NHPA nor the CWA requires state governments to consult
with SHPO. To date, 44 states have been delegated this
program and, to our knowledge, nene are consulting under
these laws. There is no legal or policy reason that
Arizona’s program should operate under a different
standard than those in these other states.
81
IV. Conclusion and Request for Approval of
ADEQ’s Application.
ADEQ administration of the NPDES program will
result in significant benefits to our state, including
protection of water quality. There is strong support from
state government to administer this program. Concerns
regarding the implications of EPA approval of the AZPDES
program on endangered species and historic properties
have been exaggerated. These issues can and should be
resolved through USFWS and SHPO cooperation with
ADEQ. We therefore respectfully request that EPA
approve ADEQ’s application to administer the NPDES
program.
We appreciate your consideration of these comments.
If you have any questions or concerns regarding these
comments, please contact the Association at your
convenience at (520) 795-5114.
Sincerely,
/s/ Robert Anderson
Robert D. Anderson
cc: Mr. Chris Varga, Federal Permit Unit, AZ Dept of
Environmental Quality
Alan Lurie, Southern Arizona Home Builders
Association
82
ARIZONA 18 E. OcHOa ST.
TUCSON, ARIZONA 85701-1915
CENIES vee (520) 529-1798
LAW IN THE (520) 529-2927 (Fax)
PUBLIC WWW.ACLPI.ORG
INTEREST
September 13, 2002
Matthew Mitchell
Water Division, WTR-5 EPA Region 9
75 Hawthorne Street
San Francisco, CA 94105
Re: Arizona’s NPDES primacy application
Dear Mr. Mitchell:
The Arizona Center for Law in the Fublic Interest,
Defenders of Wildlife, the Center for Biological Diversity,
and the Sierra Club have the following comments on the
State of Arizona’s application to administer the national
pollutant discharge elimination system (“NPDES”)
program in Arizona (referred to hereafter as “AZPDES
program”) as noticed and described in 67 Fed. Reg. 49916
(August 1, 2002). Unless and until the deficiencies
described below are remedied, EPA lacks the authority to
approve the AZPDES program.
I. EPA Must Comply Fully With En ered
Species Act. :
A. EPA Must Complete Formal Section 7
Consultation Prior To Any Decision
Approving AZPDES Program. .
Every federal agency must, “in consultation with and
with the assistance of the [U.S. Fish and Wildlife Service],
83
insure that any action authorized, funded, or carried out
by such agency [] is not likely to jeopardize the continued
existence of any endangered species or threatened species
or result in the destruction or adverse modification of
[critical] habitat ...” Endangered Species Act (“ESA”), 16
U.S.C. § 1536(a)(2). In furtherance of these obligations,
each federal agency is required to complete formal section
7 consultation with the U.S. Fish and Wildlife Service
_ (*“FWS”) whenever an agency undertakes an action that
“may affect listed species or critical habitat,” unless the
FWS determines “that the proposed action is not likely to
adversely affect any listed species or critical habitat” 50
C.F.R. § 402.14(a)-(b). “Effects” of an action include “...
the direct and indiréct effects of the action on the species
or critical habitat, together with the effects of other
activities that are interrelated or interdependent with that
action ... ” 50 C.F.R. § 402.02. Furthermore, once the
section 7 consultation has been initiated, the consulting
federal agency is prohibited from making any “irreversible
or irretrievable commitment of resources with respect to
the agency action...” 16 U.S.C. § 1536(d).
There is no doubt that EPA’s consideration and
approval of the AZPDES program is an action mandating
formal consultation under section 7 of the ESA. Indeed.
EPA has acknowledged that approval of the AZPDES
program may affect numerous federally-listed species and
designated critical habitats in Arizona and therefore, EPA
requested initiation of formal consultation with FWS. [See
Letter from Terry Oda to David Harlow dated June 21,
2002 (hereafter referred to as “June 21” Letter.”] However,
formal section 7 consultation must be completed prior to
any decision by EPA regarding the AZPDES program.
84
B. EPA Has Failed [sic] Initiate Formal Sec-
tion 7 Consultation.
Notwithstanding EPA’s acknowledgment that it has a
duty to formally consult with FWS regarding the AZPDES
program, EPA has not yet properly initiated formal section
7 consultation. On August 20, 2002, FWS properly rejected
EPA’s request to initiate formal consultation based on
EPA's failure to provide FWS with the basic information
necessary, and required by law, for preparation of a
Biological Opinion (“BO”). [See Letter from Brian Hanson
to Terry Oda dated August 20, 2002 (hereafter referred to
as “August 20” Letter”.| The ESA and its implementing
regulations require that written requests to initiate formal
consultation must include, among other information, a
“description of the specific area that may be affected by
the action,” and a “description of the manner in which the
action may affect any listed species or critical habitat and
an analysis of any cumulative effects.” 50 CFR
402.14(c)2,4). As noted in the August 20° Letter, EPA
failed to meet these minimum requirements. [See August
20" Letter stating, “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).”] Indeed, EPA’s Biological
Evaluation for Endangered Species Act Consultation on
USEPA’s Proposed Approval of the State of Arizona’s
NPDES Program, dated June 21, 2002, (hereafter referred
to as “EPA’s BE”) is woefully deficient in several respects.
For example, EPA’s BE fails to adequately assess the
manner in which approval of the AZPDES program may
affect listed species or critical habitat in Arizona. EPA
asserts that “ijn changing from a Federal permitting
85
program to a State permitting program, the permit-related
ESA Section 7 process for consultation will no longer
apply.” [EPA’s BE at 15 (emphasis added).] The procedural
and substantive requirements of section 7 of the ESA are
among the most fundamental and important protections
afforded to listed species and critical habitat under the
ESA. There is no question that NPDES permitting
decisions have in the past and will, in the future, result in
substantial negative impacts to listed species and critical
habitat. Terminating section 7 consultations on NPDES
permitting actions in Arizona will have monumental
impacts on listed species and critical habitat. Yet, EPA’s
BE fails to analyze these likely impacts whatsoever.
Indeed, EPA’s BE fails to analyze the impacts of this action
for even one of the 60 federally-listed species that
EPA identified as likely to be affected: Instead, EPA
simply concludes that “any potential adverse effects to
Federally-listed species or critical habitat” resulting from
transfer of NPDES permitting authority to Arizona “would
be insignificant and/or discountable.” EPA’s BE at 16. This
conclusion is not only legally defective on its face — there is
no “insignificant and/or discountable” exception for
adverse effects under the ESA — but is completely
unsupported by any meaningful analysis.
EPA’s BE is also legally deficient because it fails to
undertake any analysis of cumulative effects as required
by the ESA. ESA implementing regulations define
“cumulative effects” as “those effects of future State or
private activities, not invo) ing Federal activities, that are
reasonably certain to occur within the action area of the
Federal action subject to consultation.” 50 C.F.R. § 402.02.
If the AZPDES program is approved by EPA, there is an
absolute certainty that in the future, hundreds of state
86
NPDES permits will be issued annually with the potential
of causing substantial negative impacts to listed species
and critical habitat. Yet, EPA’s BE contains no discussion,
let alone analysis, of even basic information essential to
accurately assess these cumulative effects including, for
example, how many NPDES permits are likely to be issued
by the State of Arizona on an annual basis, what specific
species and critical habitats are likely to be impacted by
such permits, and how the specific species or critical
habitat may be affected.
C. EPA’s Approval Of The AZPDES Program
Will Jeopardize The Continued Existence
Of Dozens Of Federally-Listed Species
And Result In The Destruction Or Adverse
Modification Of Critical Habitat.
EPA’s approval of the AZPDES program is no small
procedural matter for the approximately sixty endangered
and threatened species in Arizona. As already noted, it is
EPA's position that transferring the NPDES program to
the State of Arizona will terminate application of the
requirements of section 7 of the ESA with respect to
NPDES permitting, thus eliminating one of the most
important legal protections for these species and their
habitats. Nonetheless, EPA asserts that such action will
have at most “insignificant and/or discountable” impacts
on listed species and critical habitat. One need look no
further than the substantial impacts that have and
continue to occur to listed species and critical habitat in
Arizona from EPA-issued NPDES permits, where the
requirements of section 7 of the ESA are in effect, to
understand that EPA’s claim is simply incorrect.
87
Stormwater discharge and point source discharge
permits for residential and commercial urban development
projects often result in significant adverse impacts to
listed species and critical habitat. Obvious adverse effects
of such NPDES permitting include the elimination of
listed species, destruction of occupied and unoccupied
habitat, and adverse modification of designated critical
habitat. These effects are often significantly multiplied
when considered alongside impacts resulting from Clean
Water Act section 404 permits. Other NPDES permit
impacts include increased domestic water consumption,
degradation of watershed and water quality conditions,
and resulting harm to riparian or aquatic listed species
and designated critical habitat, often many miles away
from the permitted development.
The cactus ferruginous-pygmy owl (“pygmy owl”) is
one of dozens of species in Arizona impacted by projects
and activities authorized by EPA’s NPDES program. The
pygmy owl is threatened primarily by past and ongoing
destruction and fragmentation of habitat, particularly
within the Tucson Basin, from urban and commercial
development, much of which is authorized by NPDES
permits. The harmful effects of NPDES permitting is also
apparent in the San Pedro River basin where increased
pollution is threatening the species that depend on that
water-based ecosystem for survival. The FWS has detailed
a number of concerns with regard to NPDES permitting in
and around the San Pedro River basin including the
impacts of the effects of consumptive water use from
urban development. [See Letter to Alexis Strauss from
U.S. FWS dated April 27, 2000 (hereafter referred to as
“April 27" Letter”).) According to the FWS, annual
groundwater withdrawals exceea replacement in the
88
Sierra Vista subwatershed by roughly 7,000 acre-feet, and
are ultimately expected to diminish or eliminate baseflow
in the river. Listed species such as the southwestern
willow flycatcher, Huachuca water umbel, spikedace and
loach minnow, and their critical habitats, will all be
affected by any such baseflow reduction. Groundwater
pumping for new urban development is clearly an indirect
effect of NPDES permitting in this region.
FWS has also detailed a number of harmful indirect
effects of urban development in the Verde River basin of
central Arizona. For example, in its December 26, 2901
Biological Opinion on the NPDES permit for the
“Homestead at Camp Verde,” a development project the
FWS found that:
Urbanization near the Verde River has reduced
the ability to establish dense riparian vegetation.
Development has created and maintained the
demand for domestic and industrial water use
resulting in increased groundwater pumping and
flood control structures that alter stream
hydrology and also increases bridges, roads,
vehicles, sand and gravel mining and other
industrial and commercial uses detrimental
to riparian habitat. Urbanization has also
increased the demand for recreational use of
remaining riparian areas for trails, campgrounds
and use of river areas for off-road vehicles, etc.
Developments and recreation increase trash,
lawns, bird feeders, and habitat fragmentation,
and as a result, an increase of predators or
passerines such as cowbirds house cats, grackles,
and ravens ...
{Biological Opinion, Homestead et Camp Verde NPDES
Permit, December 26, 2001.] Overuse of groundwater in
89
the Verde River basin is also a major concern. According to
FWS, “the extent of groundwater overdraft | (water
resources that are not being replenished) in [Chino and
Verde valleys] ... was considered critical ... ” Jd.
{Furthermore, urbanization also results in watershed
degradation, including increased runoff, erosion, altered
hydrogeomorphology, incision, lowered water table, and
resulting losses of riparian vegetation. These indirect
effects of NPDES permitting adversely affect Verde River
basin riparian and aquatic habitats, and dependent
federally listed species, including the Bald eagle,
Southwestern willow flycatcher, loach minnow, spikedace,
razorback sucker and their designated critical habitats.
The examples above are merely a sampling of the
negative impacts that are likely to result from EPA
approval of the AZPDES program. At present, these
impacts must, at least, be examined through the ESA’s
section 7 consultation process. Once the program is
transferred to the State, it is apparently EPA’s position
that section 7 consultation will rarely, if ever, occur,
thereby substantially increasing the likely impacts of
AZPDES permits on listed species and critical habitat.
Notwithstanding EPA’s claims to the contrary, neither
the provisions of the Clean Water Act, Arizona’s water
quality standards, or EPA’s proposed oversight of the
AZPDES program are adequate substitutes for section
7 consultation under the ESA. In short, without a
commitment to maintain the existing substantive and
procedural protections of section 7 consultations
concerning individual NPDES permits that may affect
listed species or critical habitat, EPA must disapprove of
the AZPDES program.
90
Il. The AZPDES Appeals Process Is Not Consistent
With Federal Requirements.
EPA may only approve a state’s NPDES permit
program that is consistent with and not less-stringent
than the federal NPDES permit program. 40 C.FR.
§ 123.1. Although states are free to enact provisions that
are more stringent than the federal requirements, the
states must meet the minimum federal requirements.
Federal law requires that states administering NPDES
programs shall provide for public participation in the state
enforcement process by providing either of the following:
(1) Authority which allows intervention as of right
in any civil or administrative action to obtain
remedies specified in paragraphs (a)(1), (2), or (3)
of this section by any citizen having an interest
which is or may be adversely affected; or
(2) Assurance that the state agency or enforcement
authority will:
(i) Investigate and provide written responses to
all citizen complaints submitted pursuant to
the procedures specified in § 123.26 (b)(4);
(ii) Not oppose intervention by any citizen when
permissive intervention may be authorized
by statute, rule, or regulation; and
(iii) Publish notice of and provide at least 30
days for public comment on any proposed
settlement of a state enforcement action.
40 C.F.R. § 123.27 (d) (emphasis added). Furthermore, the
judicial review available under a state’s NPDES program
must be “sufficient to provide for, encourage, and assist
public participation in the permitting process. A State will
meet this standard if State law allows an opportunity for
judicial review that is the same as that available to obtain
91
judicial review in federal court of a federally-issued
NPDES permit .. . A State will not meet this standard if it
narrowly restricts the class of persons who may challenge
the approval or denial of permits.” 40 C.F.R. § 123.30.
There can be no serious dispute that the language in
49-323 (A) fails to comply with federal law.
A.R.S. § 49-323 (A) provides, in pertinent part, that an
appeal may be taken “by any person who is adversely
affected by the action or by any person who may with
reasonable probability be adversely affected by the action
and who has exercised any right to comment on the action
...” This provision is far more restrictive than the federal
standard and clearly violates the requirements of 40
C.F.R. $123.30. This “procedure” will have a chilling effect
on public participation in all aspects of the permitting
process but especially the judicial review because it
severely limits the right to judicial review of a permitting
decision. Again, the Arizona Center for Law in the Public
Interest and the Sierra Club, among others, have been
raising this issue for over a year. We raised it with the
Arizona Legislature, the Governor, and the Arizona
Department of Environmental Quality. At this point it is
evident that unless the State of Arizona is ordered to make
the necessary changes by either EPA or a court, the State
will maintain the status quo of denying citizens their
federally established right to judicial review of permit
decisions.
Ill, The State Of Arizona Cannot Adequately Fund
The AZPDES Program.
Pursuant to the Clean Water Act, the state seeking
delegation must have adequate authority to administer
92
the NPDES program. 33 U.S.C. § 1342(6). In the present
case, Arizona lacks the authority because the program has
no funding mechanism whatsoever. It is our
understanding that EPA is providing the majority of the
funding for the AZPDES program. Without EPA funding, it
is apparent that the State would be unable to support the
AZPDES program thereby forcing EPA to withdraw
delegation. In addition to the State’s ongoing budget crisis,
the State has assured that the AZPDES program would
not be self-supporting by prohibiting itself from instituting
any type of permit fee. A.R.S. § 49-255.01 (J) states that
« _. The Department shall not charge a fee to issue, deny,
modify. suspend or revoke a permit under this Article or to
process permit applications.” Permit fees are a widely-
used for obtaining additional funding for such programs on
both state and federal levels. See e.g., Cal. Water Code
§ 13260 (establishing annual fees). It is our understanding
that the State made the decision to not implement permit
fees in order to gain support for the primacy process from
the regulated community. However, this compromise will
likely cost Arizona the NPDES program because after EPA
funds are terminated, Arizona will most likely be unable to
fund the program as it is currently defined.
IV. International Wastewater Treatment Plants
Must Remain Under EPA’s Authority.
EPA should retain authority for regulating all NPDES
permits for international wastewater treatment plants,
and specifically, the Nogales International Wastewater
Treatment Plant. EPA is an important part of the process
towards repairing the Nogales Plant and it is imperative
that EPA remain the regulator of that facility.
93
Thank you for the opportunity to submit comments on
the AZPDES program. If you have any questions regarding
this letter, please contact Vera Komylak at 520-529-1798
or Michael Senatore with Defenders of Wildlife at
202-682-9400 ext. 123.
Sincerely,
/s/ (Ilegible]
Vera S. Komylak
Staff Attorney
Arizona Center for Law
in the Public Interest
on behalf of,
Michael P. Senatore,
Litigation Director
Defenders of Wildlife
David Hogan,
Urban Wildlands and
Rivers Program Coordinator
Center for Biological Diversity
Sandra Bahr,
Conservation Outreach
Director
Sierra Club
94
[LOGO] [LOGO]
2575 E. Camelback Road
Phoenix, Arizona 85016-9225
September 14, 2002
Via Federal Express
Matthew Mitchell (WTR-5)
U.S. Environmental Protection Agency Region 9
Water Division
75 Hawthorne Street
San Francisco, CA 94105
Re: Support for ADEQ Administration of
NPDES Program (see 67 Fed. Reg. 49916-20
(Aug. 1, 2002))
Dear Mr. Mitchell:
The Greater Phoenix Chamber of Commerce and the
Arizona Chamber of Commerce respectfully request that
the United States Environmental Protection Agency
(“EPA", approve the application of the Arizona
Department of Environmental Quality (“ADEQ”) to
administer the National Pollutant Discharge Elimination
System (“NPDES”) program (see 67 Fed. Reg. 49916-20
(Aug. 1, 2002)). The two chambers have over 5,000
members throughout the State of Arizona. In addition, the
following organizations with over 30,000 additional
members individually express their support for EPA
approval of ADEQ’s NPDES application and the following
comments:
American Forest & Paper Association
Arizona Association of Industries
Arizona Cattlemen’s Asscciation
Arizona Farm Bureau
AMIGOS
95
Arizona Mining Association
Arizona Rock Products Association
Associated General Contractors
(Arizona Chapter)
Homebuilders Association of Central Arizona
National Federation of Independent Business
(Arizona)
Southern Arizona Home Builders Association.
I. Approval] of the ADEQ’s Application Will Resuli 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 throu,. 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
throughout the state, is in a better position to
maintain communication with the regulated
community here in Arizona than is an EPA Region
based in San Francisco. The opportunities for
96
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(B).
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 vunning its own Aquifer
Protection Permit (“APP”) program (which, like the
NPDES program, contains both technology-based
and standards-based permitting requirements).
97
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.
* 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).
98
Il. The State of Arizona Is Committed to the
NPDES a d ADEQ Is Fully Capable
of Administering the Program.
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.
e 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
more on final passage. In addition, the
Legislature has fully funded the NPDES
program despite severe budget pressures facing
Arizona and most states. In 2001, the
Legislature budgeted $472,400 and 9 FTE
positions in FY2001-02 and $432,500 and 9 FTE
positions in FY2002-03 from the General Fund in
order to provide ADEQ the additional resources
necessary to fully administer the AZPDES
program (the State already had 10 federally
funded FTEs devoted to the program). Despite
budget cuts of over ten per cent for ADEQ and
other state agencies during the last two budget
years, the Legislature and the Governor have
maintained full funding for the AZPDES
program. Although any government program,
state or federal, is subject to the vagaries of the
budget process in the future, the fact that
AZPDES funding survived the state’s recent
budget cuts is a sign of Arizona's firm
commitment to the program.
99
* ADEQ is fully capable of administering this
program. In addition to the expanded resources
made available by the Legislature, ADEQ has
extensive permitting and enforcement experience
under the NPDES and APP programs, as noted
above. The APP program in particular has been
developed and managed entirely independent of
federal direction or oversight.
III. The Effects of Approving ADEQ’s Application on
Endangered Species and Historic Property Are
Exaggerated and in Any Event Do Not Provide a
Basis for Denying or Delaying Approval of ADEQ’s
Application.
Concerns have been raised about the implications of
EPA approval of ADEQ’s program on endangered species
and historic properties. We believe these concerns are
exaggerated and in any event do not provide a basis to
deny or delay approval of Arizona’s program. EPA is
required under 33 U.S.C. § 1342(b) to approve Arizona’s
program if it meets the statutory elements set forth in the
Clean Water Act. This expresses Congress’ decision to
allow a state to take the lead role in protection of the
waters within its boundaries if it can establish an
adequate program to do so.
The endangered species concerns revolve around the
fact that EPA, as a federal agency whose actions are
subject to Section 7 of the Endangered Species Act (“ESA”),
is now required to consult with the U.S. Fish & Wildlife
Service (“USFWS”) to ensure that its permitting actions do
not jeopardize the continued existence of a listed species or
result in the destruction or adverse modification of the
critical habitat of such species. ADEQ, as a state agency,
will not be required to formally consult with USFWS when
100
it issues permits. As an initial matter, ADEQ is_not
required to consult because the ESA imposes consultation
requirements only on federal agencies taking action, not
on state agencies. The other 44 states operating approved
NPDES programs, including every other state in Region 9,
do not engage in consultation when issuing state NPDES
permits. The fact that Arizona would not be subject to a
Section 7 consultation requirement when issuing a state
NPDES permit is neither unusual nor unintended.
Moreover, substantial protections for endangered
species remain, both within the AZPDES program and
outside it:
¢ AZPDES rules require that USFWS and other
agencies with an interest in endangered species
will be provided with copies of draft permits and
invited to comment on those permits. Federal
regulations (see 40 C.F.R. § 124.10(c)1)(im))
require that copies of draft permits be provided
to federal and state agencies with jurisdiction
over fish, shellfish and wildlife resources, which
would include, inter alia, USFWS and the
Arizona Game and Fish Department. Federal
regulations (see 40 C.F.R. § 124.59(b)) also invite
these same agencies to submit comments on the
draft permits and to advise EPA in writing if the
imposition of specified conditions in the permit is
necessary to avoid substantial impairment of
fish, shellfish or wildlife resources. EPA may
include these specified conditions in a permit to
the extent they are determined necessary to
carry out EPA’s authority under the Clean Water
Act. These same requirements are contained in the
AZPDES regulations. See A.A.C. R18-9-A907(AX3\d)
& RI8-9-A908(A)(4)(b). Moreover, EPA’s own review
of the draft permits presumably will be coordinated
101
with USFWS to ensure that USFWS concerns
are addressed to the extent of EPA’s authority
under the Clean Water Act, as set forth in the
2001 Memorandum of Agreement (“MOA”)
between the agencies entitled Enhanced
Coordination Under the Clean Water Act and
Endangered Species Act. See 66 Fed. Reg. 11202,
11215-16 (Feb. 22, 2001). That MOA applies to
coordination between federal agencies under the
ESA, and does not require or contemplate that
any additional procedures regarding endangered
species will be in place at the state level.
Effluent limitations established in AZPDES
permits will largely be driven by surface water
quality standards established by ADEQ under
EPA oversight, since these standards are typically
more stringent than technology-based standards
for the same pollutants. Surface water quality
standards are reviewed every three years. ADEQ
just completed its latest triennial review early
this year. Surface water quality standards, which
are constantly under review as additional data is
gathered, are designed to be protective of all
species, including threatened and endangered
species. Nevertheless, the 2001 EPA/USFWS
MOA calls for additional steps to be taken to
verify that surface water quality standards are
and remain protective of endangered species,
including a national consultation on EPA’s
existing CWA § 304(a) aquatic life criteria (which
form the basis of most states’ water quality
standards, including Arizona’s). See 66 Fed. Reg.
at 11212. When combined with EPA’s oversight
authority and coordination with USFWS, these
protections should mean that discharges
permitted by ADEQ will not adversely affect
listed species.
102
° Many projects that may affect endangered species
will continue to be subject to Section 7
consultation because of the continued involvement
of a federal agency even after Arizona's NPDES
application is approved. The extent of federal
control and involvement in this state is
pervasive. The federal government owns almost
70% of the land in this state (including tribal
lands). Furthermore, many development and
discharge activities involve federal permitting or
funding (which triggers Section 7 consultation),
such as fill activities in watercourses regulated
by the Corps of Engineers, energy projects
regulated by the Federal Energy Regulatory
Commission, or transportation and water
projects involving the U.S. Department of
Transportation or the federal Bureau of
Reclamation.
¢ Private action outside of Section 7 that results in
a “taking” (i.e., killing, capturing or harming
members of a listed species of wildlife) is
prohibited by Section 9 of the Endangered Species
Act unless a separate permit is obtained from
USFWS. This prohibition applies to all activities,
whether associated with a federal permit or not,
and will not be affected by the approval of an
Arizona program.
Protection of historic properties should not be a
significant concern for approval of ADEQ’s program.
Similar to the ESA Section 7 obligation, EPA is required
under Section 106 of the National Historic Preservation
Act (“NHPA”) to consult with the State Historic
Preservation Office (“SHPO”) to identify and address
adverse impacts of federal actions on sites listed on or
eligible for listing on the National Register of Historic
Places. ADEQ will not be required to consult with SHPO.
103
However, it is our understanding that since cultural
resources generally are located outside of aquatic areas,
and are not affected by the quality or nature of the
aischarges permitted under the NPDES program, there
has been relatively limited review of permitted activity
under the EPA-administered NPDES program. In any
event, federal NPDES regulations (see 40 C.FR.
§ 124.10(c)(1)(ii)) require that copies of draft permits
be provided to the State Historic Preservation Officers
and any affected Indian Tribes. This same requirement
also appears in the AZPDES regulations. See A.A.C.
R18-9-A907(A)(3)(c) & (d).
As noted above, many projects that require a NPDES
permit also require other federal permits (e.g., CWA
Section 404 permits); for these projects, NHPA
requirements will continue to apply even if the NPDES
program is administered by ADEQ. Moreover, significant
protections exist outside of the NPDES program for
historic properties and other cultural resources, as well as
human remains. Disposition of state property, including
State of Arizona trust lands where a substantial amount of
private development occurs, is subject to state-historic
preservation requirements, including consultation with
SHPO. Finally, the State of Arizona has a burial law that
prohibits the disturbance of human remains and funerary
objects without following a process for the orderly
disposition of those remains and objects, including
coordination with appropriate Native American tribes. See
A.R.S. § 41-865. Violation of this state statute is a criminal
offense. See A.R.S. § 41-865(G)&(H).
Although protections continue to exist for endangered
species and historic properties, debating the sufficiency of
those protections misses the point of the current process.
104
EPA is being asked to approve the assumption by ADEQ of
a permitting program that, if approved, will significantly
strengthen the protection of water quality in the state. For
example, ADEQ has historically assisted EPA Region 9’s
limited permit staff for Arizona (we believe there may only
be two) in administering the NPDES program with ten
full-time federally funded positions. As noted above, the
Arizona Legislature’s FY2001-02 and FY2002-03 funding
of the AZPDES program has resulted in nine additional
new FTEs on the ground in Arizona dedicated to AZPDES
implementation and enforcement (with EPA Region 9 staff
continuing to play an oversight role). The AZPDES
program clearly will result in a significant increase in the
resources dedicated to water quality protection under the
federal NPDES program.
Concerns over endangered species and _ historic
properties are properly addressed within the context of
laws designed to protect those resources. Congress has
spoken and neither the ESA nor the CWA requires state
governments implementing approved programs to consult
with USFWS on their permitting actions, and neither the
NHPA nor the CWA requires state governments to consult
with SHPO. To date, 44 states have been delegated this
program and, to our knowledge, none are consulting under
these laws. There is no legal or policy reason that
Arizona’s program should operate under a different
standard than those in these other states.
IV. Conclusion and Request for Approval of ADEQ’s
Application.
ADEQ administration of the NPDES program will
result in significant benefits to our state, including
protection of water quality. There is strong support from
105
state government to administer this program. Concerns
regarding the implications of EPA approval of the AZPDES
program on endangered species and historic properties
have been exaggerated. These issues can and should be
resolved through USFWS and SHPO cooperation with
ADEQ. We therefore respectfully request that EPA
approve ADEQ’s application to administer the NPDES
program.
We appreciate your consideration of these comments.
If you have any questions or concerns regarding these
comments, please contact me at your convenience at (602)
530-8221.
Sincerely,
/s/
David P. Kimball, III
Environment Committee
Chairman,
Greater Phoenix Chamber
of Commerce & Arizona
Chamber of Commerce
cc: Mr. Chris Varga, Federal Permit Unit,
Arizona Department of Environmental Quality
DPK/RAB/pgb
1045629v1
106
Home :
Builders .
Association [Image Omitted
OF CENTRAL In Printing]
ARIZONA
Via Federal Express
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:
The Home Builders Association of Central Arizona
(“Association”) appreciates 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 800 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
members 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.
107
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
108
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(B).
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
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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.
¢ 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.
Il. The State of Arizona Is Committed to the NPDES
Program and ADEQ Is_ Fully 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.
’ State law establishes a deadline of January 1, 2004 for most
existing facilities to obtain an APP. See Ariz. Rev. Statutes § 49-241(D).
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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
more on final passage. In addition, the
Legislature has fully funded the NPDES
program despite severe budget pressures facing
Arizona and most states. In 2001, the
Legislature budgeted $472,400 and 9 FTE
positions in FY2001-02 and $432,500 and 9 FTE
positions in FY2002-03 from the General Fund in
order to provide ADEQ the additional resources
necessary to fully administer the AZPDES
program (the State already had 10 federally
funded FTEs devoted to the program). Despite
budget cuts of over ten per cent for ADEQ and
other state agencies during the last two budget
years, the Legislature and the Governor have
maintained full funding for the AZPDES
program. Although any government program,
state or federal, is subject to the vagaries of the
budget process in the future, the fact that
AZPDES funding survived the state’s recent
budget cuts is a sign of Arizona’s firm
commitment to the program.
ADEQ is fully capable of administering this
program well. In addition to the expanded
resources made available by the Legislature,
ADEQ has extensive permitting and enforcement
experience under the NPDES and APP programs,
as noted above. The APP program in particular
has been developed and managed entirely
independent of federal direction or oversight.
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Ill. The Effects of Approving ADEQ’s Application on
da ed_ Species Historic t e
xaggerated and in Event Do Not Provide a
Basis for Denying or ayin roval of ADEQ’s
Application.
Concerns have been raised about the implications of
EPA approval of ADEQ’s program on endangered species
and historic properties. We believe these concerns are
exaggerated and in any event do not provide a basis to
deny or delay approval of Arizona’s program. EPA is
required under 33 U.S.C. § 1342(b) to approve Arizona’s
program if it meets the statutory elements set forth in the
Clean Water Act. This expresses Congress’ decision to
allow a state to take the lead role in protection of the
waters within its boundaries if it can establish an
adequate program to do so.
The endangered species concerns revolve around the
fact that EPA, as a federal agency whose actions are
subject to Section 7 of the Endangered Species Act
(“ESA”), is now required to consult with the U.S. Fish &
Wildlife Service (“USFWS”) to ensure that its permitting
actions do not jeopardize the continued existence of a
listed species or result in the destruction or adverse
modification of the critical habitat of such species. ADEQ,
as a state agency, will not be required to formally consult
with USFWS when it issues permits. As an initial matter,
ADEQ is not required to consult because the ESA imposes
consultation requirements only on federal agencies taking
action, not on state agencies. The other 44 states operating
approved NPDES programs, including every other state in
Region 9, do not engage in consultation when issuing state
NPDES permits. The fact that Arizona would not be
subject to a Section 7 consultation requirement when
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issuing a state NPDES permit is neither unusual nor
unintended.
Moreover, substantial protections for endangered
species remain, both within the AZPDES program and
outside it:
AZPDES rules require that USFWS and other
agencies with an interest in endangered species
will be provided with copies of draft permits and
invited to comment on those permits. Federal
regulations (see 40 C.F.R. § 124.10(c)1)ii))
require that copies of draft permits be provided
to federal and state agencies with jurisdiction
over fish, shellfish and wildlife resources, which
would include, inter alia, USFWS and the
Arizona Game and Fish Department. Federal
regulations (see 40 C.F.R. § 124.59(b)) also invite
these same agencies to submit comments on the
draft permits and to advise EPA in writing if the
imposition of specified conditions in the permit
is necessary to avoid substantial impairment
of fish, shellfish or wildlife resources. EPA may
include these specified conditions in a permit
to the extent they are determined necessary
to carry out EPA’s authority under the Clean
Water Act. These same requirements are
contained in the AZPDES regulations. See A.A.C.
R18-9-A907A\(3Xd) & R18-9-A908%A\4)(b). Moreover,
EPA’s own review of the draft permits
presumably will be coordinated with USFWS to
ensure that USFWS concerns are addressed to
the extent of EPA’s authority under the Clean
Water Act, as set forth in the 2001 Memorandum
of Agreement (“MOA”) between the agencies
entitled Enhanced Coordination Under the Clean
Water Act and Endangered Species Act. See 66
Fed. Reg. 11202, 11215-16 (Feb. 22, 2001). That
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MOA applies to coordination between federal
agencies under the ESA, and does not require or
contemplate that any additional procedures
regarding endangered species will be in place at
the state level.
Effluent limitations established in AZPDES
permits will largely be driven by surface water
quality standards established by ADEQ under
EPA oversight, since these standards are typically
more stringent than technology-based standards
for the same pollutants. Surface water quality
standards are reviewed every three years. ADEQ
just completed its latest triennial review early
this year. Surface water quality standards, which
are constantly under review as additional data is
gathered, are designed to be protective of all
species, including threatened and endangered
species. Nevertheless, the 2001 EPA/USFWS
MOA calls for additional steps to be taken to
verify that surface water quality standards are
and remain protective of endangered species,
including a national consultation on EPA’s
existing CWA § 304(a) aquatic life criteria (which
form the basis of most states’ water quality
standards, including Arizona’s). See 66 Fed. Reg.
at 11212. When combined with EPA’s oversight
authority and coordination with USFWS, these
protections should mean that discharges
permitted by ADEQ will not adversely affect
listed species.
Many projects that may affect endangered species
will continue to be subject to Section 7
consultation because of the continued involvement
of a federal agency even after Arizona’s NPDES
application is approved. The extent of federal
control and involvement in this state is
pervasive. The federal government owns almost
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710% of the land in this state (including
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