Draft Memorandum of Agreement Between the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and the Endangered Species Act

[Federal Register Volume 64, Number 10 (Friday, January 15, 1999)]

[Notices]

[Pages 2742-2757]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 99-1029]

[[Page 2741]]

_______________________________________________________________________

Part V

Environmental Protection Agency

Department of the Interior

Fish and Wildlife Service

Department of Commerce

National Oceanic and Atmospheric Administration

_______________________________________________________________________

Draft Memorandum of Agreement Between the Environmental Protection

Agency, Fish and Wildlife Service, and National Marine Fisheries

Service Regarding Enhanced Coordination Under the Clean Water Act and

the Endangered Species Act; Notice

Federal Register / Vol. 64, No. 10 / Friday, January 15, 1999 /

Notices

[[Page 2742]]

ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[FRL-6219-4]

Draft Memorandum of Agreement Between the Environmental

Protection Agency, Fish and Wildlife Service, and National Marine

Fisheries Service Regarding Enhanced Coordination Under the Clean Water

Act and the Endangered Species Act

AGENCIES: Environmental Protection Agency, Fish and Wildlife Service,

Interior, and National Marine Fisheries Service, National Oceanic and

Atmospheric Administration, Commerce.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency, Fish and Wildlife

Service, and National Marine Fisheries Service are publishing for

public comment a draft Memorandum of Agreement describing procedures

for enhancing coordination regarding the protection of endangered and

threatened species under section 7 of the Endangered Species Act and

the Clean Water Act's Water Quality Standards and National Pollutant

Discharge Elimination System programs.

DATES: Comments must be received or postmarked by midnight March 16,

1999.

ADDRESSES: An original and 4 copies of written comments should be

submitted to W-98-32, ESA Comment Clerk, Water Docket (MC4101), USEPA

401 M Street SW, Washington, DC, 20460. Commenters who want EPA to

acknowledge receipt of their comments should enclose a self-addressed,

stamped envelope. No facsimiles (faxes) will be accepted. Comments may

also be submitted electronically to [email protected].

Electronic comments must be submitted as an ASCII file avoiding the use

of special characters and any form of encryption. Electronic comments

must be identified by docket number W-98-32. Comments will also be

accepted on disks in WP 5.1, WP 6.1, or ASCII file format.

The record for this draft Memorandum of Agreement has been

established under docket number W-98-32, and includes supporting

documentation as well as printed, paper versions of electronic

comments. The record is available for inspection from 9 to 4 p.m.,

Monday through Friday, excluding legal holidays at the Water Docket, EB

57, USEPA Headquarters, 401 M Street, Washington, D.C. For access to

docket materials, call 202-260-3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Barbara McLeod, Office of Water,

Environmental Protection Agency (telephone 202-260-5681); Margaret

Lorenz, Endangered Species Division, National Marine Fisheries Services

(telephone 301-713-1401); or Richard Hannan, Division of Endangered

Species, Fish and Wildlife Service (telephone 703-358-2171).

SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA),

and the Fish and Wildlife Service and the National Marine Fisheries

Service (the Services, referring to each Service individually or

jointly, as appropriate), have developed a draft Memorandum of

Agreement (MOA, or Agreement) describing how we will cooperate in

implementing our respective responsibilities under the Clean Water Act

(CWA) and the Endangered Species Act (ESA). Specifically, the draft MOA

addresses the protection of endangered and threatened species under the

Water Quality Standards and National Pollutant Discharge Elimination

System (NPDES) programs established by sections 303(c) and 402 of the

CWA, respectively.

EPA and the Services believe that a national agreement detailing

how these programs protect an important component of the aquatic

environment--endangered and threatened species--will help achieve the

complementary goals of the CWA and the ESA. Section 101(a) of the CWA

states that the goal of this Act is to restore and maintain the

chemical, physical, and biological integrity of the Nation's waters.

One important indicator of biological integrity is the extent to which

the waters provide for the ``protection and propagation of fish,

shellfish and wildlife.'' CWA section 101(a)(2). Conversely, a water

body whose quality is contributing to a species' risk of extinction is

not fulfilling the CWA's objectives or meeting the objectives of the

ESA. Paying attention to the needs of endangered and threatened species

as EPA implements the CWA will help achieve the goals of the CWA as

well as the ESA's objective of providing ``a means whereby the

ecosystems upon which endangered species and threatened species depend

may be conserved. * * *'' ESA 2(b).

In recent years, EPA and the Services have increased efforts to

achieve greater integration of CWA and ESA programs. These activities

have included ESA section 7 consultations on EPA's actions approving

State and Tribal water quality standards and NPDES permitting programs.

These consultations have generally been conducted by our regional and

field offices on a case-by-case basis. We have found, however, that

certain issues repeatedly arise in these consultations. These issues

include: the extent to which water quality criteria are protective of

listed species; the protection of non-aquatic wildlife; the appropriate

scope of reasonable and prudent measures for minimizing incidental take

of listed species; research needs to address areas of uncertainty; and

interagency coordination with regard to EPA oversight of NPDES permits

issued by States or Tribes. A coordinated national approach would help

ensure an appropriate level of protection for listed species and

greater regulatory predictability for States, Tribes, and the public.

Enhanced cooperation among the agencies, by more effectively ensuring

that effects from pollutants on listed species are addressed under

existing authorities, should also help avoid the need to list new

species under the ESA and facilitate recovery of species so that they

no longer require protection under the ESA.

The draft MOA also seeks to make ESA section 7 consultations more

timely and efficient. Some consultations between the EPA and the

Services have been protracted (the average water quality standards

consultation has, for example, taken approximately eighteen months),

consuming considerable EPA and Service resources. By providing guidance

to our field offices, enhancing coordination, and establishing

procedures for resolving disagreements, the draft MOA seeks to

streamline the consultation process, helping us and interested parties

that depend on timely decision-making by the Federal government.

The draft MOA is a procedural document that addresses how EPA and

the Services intend to exercise our existing statutory and regulatory

authorities in a coordinated manner. A final MOA will be guidance to

our field office staff that does not alter, expand, or substitute for

applicable legal requirements. Therefore, development of the MOA is not

subject to the notice and comment rule-making requirements of the

Administrative Procedure Act, 5 U.S.C. 553. However, we believe that

[[Page 2743]]

these procedures would benefit from public input, and we will consider

all public comments received prior to the date in the DATES section

above.

EPA and the Services have also been engaged in discussions

regarding the development of procedures for coordination with regard to

State/Tribal permitting programs under sections 404 and 405 of the CWA,

and we plan to continue our discussions in these areas.

I. Statutory Background

Section 7 of the ESA imposes substantive and procedural obligations

on Federal agencies. Section 7(a)(1) of the ESA requires Federal

agencies, in consultation with and with the assistance of the Services,

to utilize their authorities to further the purposes of the ESA by

carrying out programs for the conservation of listed threatened and

endangered species. Section 7(a)(2) of the ESA states that Federal

agencies shall, in consultation with, and with the assistance, of the

Services, insure that any action authorized, funded, or carried out by

the agency is not likely to jeopardize the continued existence of any

listed species or result in the destruction or adverse modification of

habitat that has been designated as critical for the species. Section

7(a)(4) of the ESA also requires that Federal agencies confer with the

Services on any agency action that is likely to jeopardize the

continued existence of any species proposed for listing, or result in

the destruction or adverse modification of proposed critical habitat.

Regulations outlining the process for section 7 consultation and

conference are codified at 50 CFR part 402.

The ESA also makes it unlawful for any person to ``take'' any fish

or wildlife species that is listed under the Act. ESA 9(a)(1)(B).

``Take'' is defined to mean ``to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture or collect, or to attempt to engage in such

conduct.'' 16 U.S.C. 1532(19). However, the Services may provide an

exemption to the prohibition on take that is incidental to otherwise

legal activity through a statement that is attached to a biological

opinion. The incidental take statement specifies the terms and

conditions necessary to carry out reasonable and prudent measures that

will minimize the incidental take.

EPA's authorities under the water quality standards and NPDES

permitting programs are contained in sections 303(c), 304(a) and 402 of

the CWA. Under section 303(c), the development of water quality

standards is primarily the responsibility of States and Tribes

qualified for treatment in the same manner as States, with EPA

exercising an oversight role. Water quality standards consist of three

components: (1) the designated uses of waters, which can include use

for public water supplies, propagation of fish and wildlife,

recreational, agricultural, industrial and other uses; (2) water

quality criteria, expressed in numeric or narrative form, reflecting

the condition of the water body that is necessary to protect its

designated use, and (3) an antidegradation policy that protects

existing uses and provides a mechanism for maintaining high water

quality. States and Tribes are required to review their standards every

three years and any revisions or new standards must be submitted to EPA

for approval. Section 303(c) contains time frames for EPA to review and

either approve or disapprove standards submitted by a State or Tribe,

and requires EPA to promulgate Federal standards to supersede

disapproved State or Tribal standards. In addition, section 303(c)

authorizes EPA to promulgate Federal standards whenever the

Administrator determines that such standards are necessary to meet the

requirements of the CWA. Regulations implementing section 303(c) are

codified at 40 CFR part 131.

Under section 304(a) of the CWA, EPA from time to time publishes

recommended water quality criteria that serve as scientific guidance

for use by States or Tribes in establishing and revising water quality

standards. These criteria are not enforceable requirements, but are

recommended criteria levels that States or Tribes may adopt as part of

their legally enforceable water quality standards. States or Tribes may

adopt other scientifically defensible criteria instead of EPA's

recommended criteria (see 40 CFR 131.11(b)).

The NPDES permitting program is established by section 402 of the

CWA. Any person that discharges a pollutant (other than dredged or fill

material) into waters of the United States from a point source must

obtain an NPDES permit. See CWA section 301(a). (Dischargers of dredged

or fill material must obtain a permit under section 404 of the CWA from

the Army Corps of Engineers or an authorized State.) EPA issues permits

under section 402 unless a State or Tribe has been approved by EPA to

administer the permitting program. Any NPDES permit must contain

limitations to reflect the application of available treatment

technologies, as well as any more stringent limitations needed to

ensure compliance with water quality standards. CWA 301(b). EPA has

promulgated regulations governing the administration of the NPDES

program. See 40 CFR parts 122, 124-125.

The CWA authorizes States or Tribes to administer the NPDES program

provided the program meets the conditions specified in section 402(b)

of the Act and EPA regulations. See 40 CFR part 123. Currently, 43

States and the U.S. Virgin Islands have received approval from EPA to

operate the NPDES program. Authorized States and Tribes are required to

maintain their programs consistent with minimum statutory and

regulatory requirements. When EPA approves State or Tribal authority to

administer an NPDES program, EPA maintains oversight responsibility,

including the authority to review, comment on and, where a permit is

``outside the guidelines and requirements'' of the CWA, object to State

or Tribal draft permits. CWA section 402(d)(2). If EPA objects to a

State or Tribal permit and the State or Tribe fails to revise the

permit to satisfy EPA's objection, the authority to issue the permit is

transferred to EPA. Section 402(c) of the CWA authorizes EPA to

withdraw the State's or Tribe's permitting authority if EPA determines

the program is not being administered in accordance with the Act.

II. Public Outreach and Comments Received by EPA and the Services

EPA and the Services have developed this draft MOA after

approximately two years of discussions. In addition, EPA communicated

with stakeholders (e.g., States, Tribes, industry and environmental

groups) about the MOA, and gave copies of a July 31, 1997, version of

the draft MOA to each of the 50 State environmental agencies, several

industry trade associations, environmental groups and any other party

requesting a copy. We also invited these parties to provide comments on

the draft and received approximately 90 comments. We recognize that

other interested parties may not have had an opportunity to provide

comments to the agencies, and therefore are providing an opportunity

for comment on this draft. Below we have responded to some general

concerns that were raised in comments we received to date. We hope that

this discussion will help clarify the purpose and intent of this draft,

and help the public in formulating comments.

While some commenters supported the basic approach in the MOA, most

commenters expressed concerns that the draft MOA would significantly

disrupt State CWA programs and undermine State and Tribal authorities

under sections 303 and 402 of the CWA. Some commenters believed that

the draft MOA raises significant legal issues regarding the

applicability of section 7

[[Page 2744]]

consultation requirements to State, as opposed to Federal, water

quality management activities. We believe that these comments

misunderstand the intent and effect of the MOA, which is to make the

existing coordination and consultation process between EPA and the

Services more efficient and effective, not to impose any burdens on

States or Tribes.

The draft MOA does not change our current policy of conducting

section 7 consultations on EPA's actions approving water quality

standards and NPDES permitting programs that may affect a listed

species. Neither does the draft MOA alter the fact that section 7 of

the ESA applies only to Federal agencies, not to States or Tribes.

Rather, the draft MOA simply contains commitments by EPA and the

Services about how we will work together in carrying out our own

responsibilities under the ESA and the CWA.

EPA and the Services recognize that carrying out section 7

consultations on EPA approval of State and Tribal water quality

standards and permitting programs presents special challenges. In most

section 7 consultations, the Federal agency consults regarding its own

activities or authorization of actions by third parties that affect

listed species. Here, EPA is consulting with the Services on EPA's

approval of State or Tribal programs that will, in turn, authorize

activities potentially affecting listed species on an ongoing basis.

The draft MOA seeks to facilitate Service involvement at the State and

Tribal level, rather than only at the time the State or Tribal action

has been completed and is being reviewed by EPA. Dialogue among EPA,

the Services and States and Tribes through existing State or Tribal CWA

procedures will best ensure that both CWA and ESA requirements are met.

The draft MOA would not override traditional State or Tribal

authority or fundamentally alter relationships between the States,

Tribes and EPA. The CWA gives States and Tribes primary responsibility

for administration of the water quality standards and NPDES permitting

programs, with EPA playing a carefully delineated oversight role. The

draft MOA seeks to ensure that EPA's oversight takes into account the

needs of listed species, but does not augment EPA's existing oversight

authorities under sections 303(c) or 402 of the CWA.

Some commenters concluded that the draft MOA would give the

Services the power unilaterally to ``veto'' State or Tribal NPDES

permits or require changes to water quality standards. EPA is the

agency vested with decision-making oversight authority under the CWA

over State and Tribal water quality standards and permitting programs,

and the MOA does not alter or diminish this authority. Under the MOA,

EPA would continue to exercise its own independent judgment whether to

object to a State or Tribal permit or to approve or disapprove State or

Tribal water quality standards, based on all the available information,

including the advice and recommendations of the Services. One commenter

recognized that EPA would retain decision-making authority, but

asserted that the practical effect of the draft MOA would be to give

the Services veto power because EPA would want to avoid a disagreement

with the Services. The MOA recognizes that EPA and the Services may not

always agree, and the elevation procedures in the MOA will help resolve

differences of opinion. However, the draft MOA does not diminish each

agency's ultimate authority to make final decisions under its statutory

authorities.

One commenter asserted that EPA and the Services have not

demonstrated that the current ``system'' is inadequate and needs to be

replaced with one that is more cumbersome. This comment appears to

misunderstand the status quo. As discussed previously, section 7 of the

ESA gives the Services a consultative role when EPA takes actions

approving State and Tribal water quality standards and NPDES programs

that may affect listed species. The MOA does not change or extend this

role, but rather seeks to ensure consultations are carried out

effectively and efficiently.

III. Summary of the Draft MOA

The major components of the MOA are summarized below. These

components are (1) procedures for interagency coordination and

elevation, (2) national level water quality standards activities, (3)

review of State and Tribal water quality standards, and (4) oversight

of State and Tribal NPDES permitting programs. In addition to

summarizing these aspects of the draft MOA, we address below

significant comments about each section submitted on the July 31, 1997,

draft of the MOA.

A. Interagency Coordination and Elevation

The draft MOA provides that EPA and the Services will establish

interagency coordinating teams at the regional and field office level

to foster early and recurring collaboration on various CWA and ESA

activities. Among other things, these teams will meet regularly and

identify priority areas of concern and upcoming workload requirements.

Enhancing the collaborative working relationships among our regional

and field offices will mean more efficient allocation of our limited

resources and more timely completion of section 7 consultations.

The draft MOA also contains an elevation procedure that we will use

to resolve issues that may arise among EPA and the Services. Under this

procedure, we will elevate areas of disagreement to regional office

senior managers and, if necessary, to managers in our headquarters

offices under specified time lines. This elevation procedure should

help avoid delays in resolving issues, and speed the completion of

section 7 consultations. The elevation procedures recognize, however,

that each agency is responsible for final decisions implementing its

own statutory authority. We intend to follow the elevation process

contained in the draft MOA on an interim basis before finalizing the

MOA to help assess the effectiveness of the process.

B. National Level Water Quality Standards Activities

The draft MOA describes several activities that EPA and the

Services will undertake at the national level to facilitate

consideration of endangered species issues in the water quality

standards program. First, the MOA states that EPA will propose to amend

its water quality standards regulations (40 CFR part 131) to require

that water quality not likely jeopardize the continued existence of

Federally-listed species or destroy or adversely modify designated

critical habitat. The proposed rule would also require that State or

Tribal policies authorizing the granting of mixing zones or variances

not likely result in jeopardy, and require adoption of site-specific

criteria where determined to be necessary to avoid the likelihood of

jeopardy. A similar approach was taken by EPA in regulations

promulgated for the Great Lakes basin. See 40 CFR 132.5(h); 56 FR 15384

(March 23, 1995).

EPA believes that the proposed rule essentially would codify

existing protection for endangered and threatened species under the CWA

since, in EPA's judgment, water quality that is so degraded that it

will likely cause jeopardy to the continued existence of a species

would generally not be consistent with protections provided by the

Clean Water Act. Standards adopted by the State or Tribe to protect

water quality. The proposed rule would be subject to public notice and

opportunity for comment.

Many States commented that EPA should consult with the Services on

[[Page 2745]]

EPA's recommended water quality criteria published under section

304(a). The States believed that such consultations on a national level

would be more efficient than consulting on criteria adopted by

individual States, many of which are based on EPA's recommended

criteria. EPA and the Services have engaged in further discussions in

light of these comments. We recognize that the aquatic life criteria

published by EPA only constitute guidance to the States, Tribes and the

public regarding pollutant levels that EPA believes would protect

aquatic life. These criteria are not binding on the States or Tribes,

which may adopt EPA's criteria or any other criteria that are

``scientifically defensible.'' See 40 CFR 131.11(b). Moreover, water

quality criteria published by EPA, because they are only guidance, do

not establish legally enforceable requirements. Nonetheless, we believe

it would be more efficient for us to consult once nationally on EPA's

recommended criteria, rather than repeat the process on a case-by-case

basis.

The draft MOA therefore provides that EPA and the Services will

conduct a national consultation on EPA's recommended aquatic life

criteria published under section 304(a) of the CWA. The agencies will

undertake the consultation in a collaborative fashion and will endeavor

to complete it within eighteen months of final adoption of the MOA.

After this consultation is completed, separate consultations by EPA

will not be required when approving State or Tribal aquatic life

criteria that are identical to or more stringent than the recommended

criteria, except where new species are listed that may be affected.

Conducting this national consultation will help streamline EPA's

compliance with section 7 of the ESA when approving State or Tribal

water quality standards. During this national consultation, if a State

or Tribe adopts and submits to EPA aquatic life criteria that are

identical to or more stringent than the current 304(a) criteria,

consultation on those criteria will take place through the national

consultation and EPA will proceed with its approval of those criteria,

subject to the understanding that EPA's action would be revised as

appropriate based on the results of the national consultation.

This consultation process, as well as other consultations among EPA

and the Services, may identify research that would facilitate our

understanding of the effects of pollutants on endangered and threatened

species. EPA and the Services recognize our joint interest in, and

responsibility for, funding and conducting research related to the

effects of water pollution on endangered and threatened species. The

agencies' resources for conducting such research are limited, however,

and the agencies must focus their efforts on pursuing research that can

be carried out given budgetary constraints and will provide the

greatest benefit to at-risk species. The agencies will therefore

develop a national research and data gathering plan, which will make

recommendations regarding consolidation and prioritization of any

research and data gathering efforts identified by the agencies through

section 7 consultation on the aquatic life criteria, or any other CWA

consultation or coordination between the agencies. The agencies will

work to incorporate the plan into their respective budgets and to

achieve economies of scale and increased effectiveness in the use of

limited funds by coordinating efforts wherever possible. The plan may

also include recommendations about the development of new criteria

(e.g., criteria to protect non-aquatic wildlife) by the agencies.

C. State and Tribal Water Quality Standards

The draft MOA contains guidance to regional and field offices

regarding section 7 consultations on EPA's approval of new or revised

water quality standards. The draft MOA seeks to facilitate early

involvement of the Services in the State and Tribal water quality

standards development process, since the most effective time for the

Services to become involved is before and during the State's or Tribe's

development of the standards. Therefore, the draft MOA provides that

EPA and the Services will meet to discuss the scope of upcoming

triennial reviews by States and Tribes and that the Services will

provide input in the standards development process. The draft MOA also

provides that, where available information supports a determination

that existing standards are not adequate to avoid causing jeopardy to a

listed species, EPA will work with the State or Tribe to obtain

revisions to the standards in the triennial review process.

One commenter raised the concern that the draft MOA imposed an

obligation on States and Tribes to improve the quality of the

environment, whereas section 9 of the ESA only prohibits a take of

listed species unless an exception has been made. Again, the draft MOA

is solely a procedural document that does not impose any obligations on

any party, including States and Tribes. Moreover, the CWA charges EPA,

States and Tribes with protecting the chemical, physical and biological

integrity of the Nation's waters. We believe our statutory

responsibilities are carried out by ensuring that water is of

sufficient quality to ensure the protection of endangered and

threatened species.

Other commenters raised the concern that the draft MOA would

elevate endangered species considerations above all other

considerations under the CWA, and undermine the flexibility currently

exercised by States and Tribes to establish use designations that take

into account socioeconomic factors or otherwise do not necessarily

maximize protection of fish and wildlife. Nothing in the draft MOA,

however, modifies any existing statutory and regulatory authorities of

EPA, the Services or States and Tribes, including the flexibility

available to States and Tribes in establishing water quality standards.

The draft MOA is solely an internal procedural document about how CWA

and ESA requirements interrelate. We do not share the assumption that

expressly integrating endangered species concerns into the water

quality standards program would lead to irreconcilable conflicts.

D. State and Tribal Permitting Programs

The draft MOA establishes a framework for EPA and the Services to

coordinate with regard to permits issued by States or Tribes under

section 402 of the CWA. All State and Tribal programs must meet the

same minimum requirements under section 402 of the CWA and EPA

regulations, and EPA's authorities for overseeing State and Tribal

permitting decisions are uniform in all States. See 40 CFR part 123,

subpart C. To date, EPA and the Services have developed coordination

procedures on a case-by-case basis, and these procedures have been

fundamentally similar. Given this similarity, we believe that the

procedural framework for interagency coordination regarding State and

Tribal programs can and should be established on a national basis.

Doing so ensures a consistent, appropriate level of protection for

listed species, and avoids the need to continue developing procedures

on a case-by-case basis. These procedures are sufficiently flexible to

address the full range of circumstances that may arise in any

particular permit proceeding.

Under these procedures, EPA would ensure that States and Tribes, in

accordance with existing CWA requirements, provide copies of permits to

the Services for their review. The

[[Page 2746]]

EPA and the Services would work with the State or Tribe where EPA or

the Services believed a permit is likely to adversely affect a listed

species. EPA would coordinate with the Services and State or Tribe to

ensure that the permit complies with all applicable CWA requirements.

If the issue still cannot be resolved, the draft MOA states that EPA

may object to the State or Tribal permit if EPA determines the permit

is likely to adversely affect listed species and the permit is subject

to objection under section 402(d) of the CWA as being ``outside the

guidelines and requirements'' of that Act. If EPA determines, based on

analysis by EPA or the Services, that the permit is likely to

jeopardize the continued existence of the listed species, EPA will use

the full extent of its CWA authority to object to the permit.

EPA and the Services also plan to conduct a national programmatic

consultation on whether the establishment of these procedures is

sufficient to avoid the likely jeopardy of listed species due to

discharges authorized under State and Tribal NPDES programs. Because

these procedures can be applied to any State or Tribe that administers

the NPDES program, we believe that a single programmatic consultation

would be the most efficient means of ensuring that programs throughout

the country are protecting endangered and threatened species in

accordance with the requirements of the CWA. We anticipate that the

consultation will cover existing State and Tribal NPDES programs and

any program submitted after issuance of the biological opinion where

the agreed-upon coordination procedures will be followed.

EPA and the Services believe that this approach ensures that any

issues regarding listed species will be adequately addressed. We

recognize that the Congress intended administration of the NPDES

permitting program to be primarily the responsibility of States and

Tribes, with EPA playing only an oversight role in most instances. EPA

and the Services do not believe that the procedures contained in the

draft MOA would upset the CWA's carefully crafted balance between

Federal and State authorities. We anticipate that the need for EPA

objections to State and Tribal permits will continue to be rare. Where

EPA believes a permit is not in accordance with CWA requirements and

impacts to listed species are of serious concern, however, EPA is

committed to using its CWA authorities to ensure that listed species

are protected.

One comment on the July 1997 draft of the MOA asserted that the

``coordination'' called for in the draft MOA is, in fact, informal

consultation under section 7 of the ESA, with the possibility of formal

consultation to follow. ``Consultation'' under section 7(a)(2) of the

Endangered Species Act (ESA) is a process that imposes certain

procedural obligations on the Federal agency consulting with the

Services (see 50 CFR part 402). The MOA does not adopt those

procedures, but instead directs EPA and the Services to share

information and recommendations with each other and States and Tribes.

The draft MOA does not impose any obligations, procedural or otherwise,

on any State or Tribe, which would continue only to be required to meet

their procedural and substantive obligations under the CWA. The draft

MOA uses the word ``coordination'' precisely to make clear that the

section 7 consultation process is not being applied to State or Tribal-

issued NPDES permits.

One court case, American Forest and Paper Association v. EPA, 137

F.3d 291 (5th Cir. 1998) has addressed the scope of EPA's authority to

ensure protection of listed species in its approval and oversight of a

State NPDES program. In that case, EPA, the Services and the State of

Louisiana entered into Memoranda of Agreement describing the

coordination that would occur with regard to State NPDES permits. The

Court found, contrary to EPA's views, that EPA had required the State

of Louisiana to consult with the Services before issuing permits as a

condition for program approval. The Court held that EPA is not

authorized to add any requirements for a State permitting program

beyond the nine specific criteria enumerated in section 402(b) of the

CWA, and invalidated the endangered species coordination procedures.

While EPA believes that this case was wrongly decided, the

procedures in the draft MOA are within EPA's authorities under the AFPA

Court's reading of the CWA. First, unlike the Louisiana procedures, the

draft MOA is an agreement solely among Federal agencies. It would

impose no obligations or commitments on any State or Tribe

administering the NPDES program, nor would it place any conditions on

EPA's approval of NPDES programs, which would continue to be based on

the criteria enumerated in section 402(b) of the CWA. Moreover, unlike

some of the procedures agreed to in Louisiana, the draft MOA makes

clear that EPA would retain the ultimate authority for determining

whether to object to a State or Tribal permit, and that EPA would do so

pursuant to its authorities under the CWA.

Dated: December 9, 1998.

J. Charles Fox,

Assistant Administrator for Water, U.S. Environmental Protection

Agency.

Dated: January 7, 1999.

Donald J. Barry,

Assistant Secretary for Fish, Wildlife and Parks, U.S. Department of

the Interior.

Dated: December 15, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service, National Oceanic and Atmospheric Administration.

The text of the draft Memorandum of Agreement follows:

Draft Agreement Between the Environmental Protection Agency, Fish

and Wildlife Service, and National Marine Fisheries Service Regarding

Enhanced Coordination Under the Clean Water Act and the Endangered

Species Act.

Table of Contents

I. Purpose

II. Goals and Objectives

III. Guiding Principles

IV. Authorities

A. Fish and Wildlife Service and National Marine Fisheries

Service Authorities

B. Environmental Protection Agency Authorities

C. Reservation of Authorities

V. Provisions and Understandings

A. Procedures to Facilitate Interagency Cooperation

1. Local/Regional Coordinating Teams

2. Interagency Elevation Process

3. Oversight Panel

4. Sub-Agreements

5. Guidance/Training

B. Summary--Section 7 Consultation Process

1. Scope

2. Data and Information Requirements

3. Information Sharing

4. Effects of an Action

5. Biological Evaluation

6. Timeliness of Actions

7. EPA Responsibility at the Conclusion of Section 7

Consultation

8. Reinitiation of Formal Consultation

C. Proposed Species and Proposed Critical Habitat

D. Recovery Program

1. Conservation Recommendations to Assist Recovery

2. Recovery Planning

3. Recovery Implementation

E. Candidate Conservation Activities

VI. National Level Activities to Ensure Protection of Species

A. National Rule-making

B. Development of New Water Quality Criteria Methodological

Guidelines

C. National Consultation on CWA Section 304(a) Aquatic Life

Criteria

1. Overview

2. Procedures for Consultation

VII. Joint National Research and Data Gathering Plan and Priorities

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A. Existing and New Water Quality Criteria

B. Work Group Report to Agreement Signatories

C. National Research and Data Gathering Plan

D. Consultation on State and Tribal Water Quality Standards

VIII. Consultation on Water Quality Standards Actions

A. Development of New or Revised State or Tribal Water Quality

Standards

1. Scoping of Issues to be Considered During the Triennial

Review Process

2. Development of State or Tribal Standards

3. Adoption and Submittal of State or Tribal Standards

4. EPA Develops Biological Evaluation

5. EPA Determination of ``No Effect'' or ``May Affect''

6. Services' Review of ``Not Likely to Adversely Affect''

Determination

7. Formal Consultation

8. EPA Action on State or Tribal Standards

B. Existing Water Quality Standards

C. Consultation on EPA Promulgation of State or Tribal Water

Quality Standards

IX. Permitting Program Activities

A. Programmatic Section 7 Consultation

B. Coordination Procedures Regarding Issuance of State or Tribal

Permits

C. Issuance of EPA Permits

D. Watershed Planning

X. Support in Administrative and Judicial Proceedings

XI. Revisions to Agreement

XII. Reservation of Agency Positions

XIII. Obligations of Funds, Commitment of Resources

XIV. Nature of Agreement

XV. Effective Date; Termination

XVI. Signatories

I. Purpose

This Agreement is designed (1) to improve coordination of the

agencies' compliance with the Endangered Species Act (ESA) for actions

authorized, funded, or carried out by EPA under sections 303(c) and 402

of the Clean Water Act (CWA), and (2) to provide clear and efficient

mechanisms for improved interagency cooperation, thereby enhancing

protection and promoting the recovery of threatened and endangered

species and their supporting ecosystems, and reducing the need for

future listing actions under the ESA. Throughout this Agreement,

``Service'' or ``Services'' shall refer to the Fish and Wildlife

Service (FWS) and/or National Marine Fisheries Service (NMFS), as

appropriate. In this Agreement ``States'' refers to States, Territories

and Commonwealths that qualify as States for the programs covered by

this Agreement.

II. Goals and Objectives

This Agreement is intended to accomplish the following:

--Use a team approach at the national, regional, and field office

levels to restore and protect watersheds and ecosystems to achieve the

goals of the ESA and CWA;

--Improve the framework for meeting responsibilities under section 7 of

the ESA;

--Enhance the existing process in place to protect and recover

Federally-listed and proposed species and the ecosystems on which they

depend;

--Improve methods for coordinating compliance with sections 303(c) and

402 of the CWA and section 7 of the ESA;

--Streamline the Federal agency coordination process to minimize the

regulatory burden, workload, and paperwork for all involved parties;

--Ensure a nationally consistent coordination process that allows

flexibility to deal with site-specific issues;

--Develop mechanisms for EPA participation in the development and

implementation of recovery plans for Federally-listed species

threatened by physical, chemical or biological impairment of waters of

the United States;

--Provide mechanisms for the Services' participation in development of

water quality criteria and standards recognizing any unique

requirements for listed and proposed species and designated and

proposed critical habitat;

--Identify a collaborative mechanism for planning and prioritizing

future CWA/ESA actions and resolving any potential conflicts or

disagreements through a structured time-sensitive process at the lowest

possible level within the agencies.

III. Guiding Principles

The ESA sets forth the goal of protecting and recovering threatened

and endangered species and the ecosystems upon which they depend. It

places responsibility on all Federal agencies, including EPA and the

Services, to meet that goal. The Clean Water Act (CWA) sets forth a

goal of restoring and maintaining the chemical, physical and biological

integrity of the Nation's waters. Sections 303(c) and 402 of the CWA

(as well as other provisions) are directed toward achieving this goal.

EPA and the Services find the goals of the CWA and ESA compatible

and complementary, and are entering into this Agreement to form a

partnership to enhance the realization of the goals of both Acts. This

partnership will also seek to efficiently and effectively fulfill the

requirements of section 7 of the ESA.

The primary principle underlying this Agreement is cooperative

partnership. The ESA requires the involvement of all Federal agencies

in the protection and recovery of our Nation's unique biological

resources. As a result of this Agreement, the signatory agencies will

better coordinate their efforts and will make it easier for the

regulated community and other partners to work with them in achieving

the purposes of the CWA and ESA.

While States and Tribes play a critical role in the administration

and implementation of sections 303(c) and 402 of the CWA, they are not

signatories to this agreement, which only applies to Federal actions

subject to section 7(a)(2) of the ESA. The Services and EPA remain

committed to working with the States and Tribes collaboratively at all

levels to ensure that both the CWA and ESA are implemented in a manner

that fulfills the goals of both statutes in a timely and efficient

manner.

IV. Authorities

A. Fish and Wildlife Service and National Marine Fisheries Service

Authorities

This Agreement relates to the following authorities of the

Services:

--Section 7 of the Endangered Species Act of 1973, as amended (16

U.S.C. 1531-1544).

B. Environmental Protection Agency Authorities

This Agreement relates to the following authorities of EPA:

--Sections 303(c), 304(a) and 402 of the Clean Water Act, as amended,

33 U.S.C. 1251-1387.

C. Reservation of Authorities

This Agreement does not modify existing Agency authorities by

reducing, expanding, or transferring any of the statutory or regulatory

authorities and responsibilities of any of the signatory agencies.

V. Provisions and Understandings

A. Procedures to Facilitate Interagency Cooperation

EPA and the Services intend to work cooperatively to achieve their

mutually shared objectives of protecting the quality of waters of the

United States and species that depend on those waters. To facilitate

collaboration among agency field and regional staff for planning and

prioritizing future CWA/ESA actions and resolving any potential

conflicts or disagreements through a structured, time-sensitive process

at the lowest possible level, the agencies will follow the coordination

and elevation procedures described below.

[[Page 2748]]

1. Local/Regional Coordinating Teams

The regional offices of EPA and the Services will establish

coordinating teams, including representation from field offices, to

foster early and recurring collaboration on various activities related

to the CWA and the ESA. These teams will, as appropriate:

a. Meet at least annually;

b. Identify upcoming workload requirements. This dialogue will

allow signatory agencies to become aware of and provide input on

upcoming activities such as annual work plans, triennial water quality

standards reviews, recovery plan preparation, proposed State or Tribal

program assumptions, proposed listings, or proposed habitat

conservation planning efforts;

c. Identify high priority areas of concern and opportunities for

cooperation.

d. Assist one another in determining which categories of NPDES

permits should be identified for review by EPA and the Services for

endangered species concerns, including waters of high concern in each

State that should be priorities for EPA oversight;

e. Identify current and future research needs and determine which

of these research needs are appropriate to convey to the research

coordinating committee and which are appropriate for local or regional

accomplishment;

f. Identify training needs; and

g. Identify ways to reduce the impacts of proposed agency actions

on endangered and threatened species.

Each of these local/regional coordinating teams should develop

mechanisms to facilitate streamlining of various work activities as

appropriate to the local circumstances. Such streamlining should

facilitate early exchange of information, early prioritization of

workload, and early identification of potential problems. Each local

group should develop mechanisms to work with States and Tribes, as

appropriate, concerning such things as candidate conservation

agreements, recovery planning, triennial reviews, and annual CWA

priorities. Local/regional coordinating teams may develop mechanisms to

involve other Federal agencies such as the U.S. Army Corps of

Engineers, the Forest Service, the Federal Energy Regulatory

Commission, and non-Federal stakeholders whose actions and interests

may impact the CWA/ESA issues.

2. Interagency Elevation Process

The following procedures shall be utilized to elevate any conflict

or disagreement between the agencies. While decisions by all levels,

including decisions to elevate, will be made by consensus to the

greatest extent practicable, any one agency can initiate the elevation

process. Each agency retains its statutory and regulatory authority to

make final decisions within its jurisdiction. Elevation should be

initiated so that all applicable deadlines may be met, taking into

account subsequent levels of review. In any elevation, the agencies

will jointly prepare an elevation document that will contain a joint

statement of facts and succinctly state each agency's position and

recommendations for resolution. If the agencies are aware of a dispute,

they will defer taking final action, where consistent with applicable

legal deadlines, to allow the issue to be resolved through the

elevation process.

The time periods specified below are intended to facilitate

expeditious resolution of the issues. These time periods should be

shortened when necessary for any agency to meet applicable legal

deadlines. The time periods begin to run on the date that the elevating

agency or agencies notify the next level of the elevation request. All

prescribed time frames in the elevation process can be waived by the

mutual consent of the participants at any level when the participants

believe that progress is being made and that resolution at that level

is still possible.

a. Level 1: The Level 1 review team consists of staff personnel

from EPA and FWS and/or NMFS. The overall goal is to design actions to

minimize adverse impacts to listed species by jointly working on

biological evaluations, concurrences and biological opinions for such

actions. General functions include those specified in section V.A.1.

Any contentious issues will be discussed with an attempt to resolve

them without elevation. If disputes cannot be resolved among the Level

1 team members, the issue will be raised with the Level 2 review team

as soon as possible.

b. Level 2: The Level 2 review team consists of field unit line

officers or staff supervisors, (i.e., for NMFS, branch/division chiefs;

for EPA, branch chiefs; and for FWS, field office supervisors). General

functions are to oversee and coordinate activities, including those

specified in section V.A.1.

The Level 2 team will make their best efforts to resolve any issues

elevated to them. Where resolution is not possible at this level, the

Level 2 team will elevate the issue to the Level 3 team no later than

14 days after notification by the Level 1 team, or sooner as agreed

upon or mandatory deadlines require.

c. Level 3: The Level 3 review team consists of all regional

executives (i.e., for NMFS and EPA, regional administrators; and for

FWS, regional directors). Their function is to resolve any elevated

disputes within 21 days of notification of elevation by Level 2 teams,

or sooner as necessary to meet mandatory deadlines, and serve as key

advisors on policy and process. If issues are not resolved by the Level

3 team, the issue will be elevated for Headquarters Review.

d. Headquarters Review: This review consists of the Director of

NMFS (Assistant Administrator for Fisheries, National Oceanic and

Atmospheric Administration, NOAA), the Director of FWS, and the Deputy

Assistant Administrator of Water at EPA or their representatives who

shall attempt to resolve disputes elevated by the regional executives.

Agency administrators shall attempt to issue a decision resolving the

issue within 21 days after elevation. Decisions will be binding upon

the agencies' field staffs. Agency administrators or their designees

shall make every attempt to resolve the dispute before elevation, where

necessary, to the Assistant Secretaries of the Departments of Interior/

Commerce and the Assistant Administrator of EPA. The responsible

Assistant Secretary(s) and Assistant Administrator shall resolve any

issues within 21 days of elevation. At this resolution level, the

decision must rest with the agency exercising the statutory or

regulatory authority in question.

3. Oversight Panel

The Oversight Panel consists of regional and headquarters personnel

from each individual agency. The panel provides oversight and

coordination for all aspects of this agreement. Its functions include,

but are not limited to:

(1) Maintaining and updating process guidance;

(2) Addressing issues about process implementation;

(3) Incorporating/identifying improvements and revisions into the

process;

(4) Convening interagency scientific/technical reviews, as

appropriate;

(5) Facilitating reaching consensus on particular issues at any

level upon requests by personnel at that level; and

(6) Reviewing and evaluating, at least on an annual basis, the

Agreement and its implementation by the three agencies.

4. Sub-Agreements

Regional and field level Federal sub-agreements further

implementing this Agreement may be executed by

[[Page 2749]]

appropriate EPA/Services programs. Any such sub-agreements which

clarify roles, procedures, and responsibilities are encouraged. This

includes any efforts to protect species and water quality on a

watershed or ecosystem basis. Sub-agreements must be consistent with

this Agreement and must be approved by Regional offices and reviewed by

Headquarters.

5. Guidance/Training

EPA and the Services will hold joint training sessions with

regional and field staff to facilitate staff's understanding and

implementation of the Agreement, with a goal of providing such training

to all relevant personnel within eighteen months. The agencies may

issue guidance individually or jointly to assist in carrying out this

Agreement.

B. Summary--Section 7 Consultation Process

1. Scope

The regulations that interpret and implement section 7 of the ESA

establish a framework for efficient and consistent consultation between

Federal agencies regarding listed species and critical habitat.

2. Data and Information Requirements

EPA agrees to include in any biological assessment or evaluation

the best available scientific and commercial information. EPA and the

Services will exercise their scientific judgment to determine the

relevance and validity of the available scientific and commercial

information. The Level 1 review teams will provide a venue for

collaborating among the agencies on these issues.

3. Information Sharing

The Services will initially provide EPA with a consolidated list of

Federally-listed and proposed species and designated and proposed

critical habitat by State. The Services agree to provide to EPA any

additions of species or other relevant information as proposed or final

rule-making occurs. EPA will provide and update copies of Federal

section 304(a) water quality criteria and applicable State and Tribal

water quality standards to the Services.

EPA and the Services will share information and analyses used to

make decisions under this Agreement when requested, including analyses

supporting biological evaluations and biological opinions. The Services

will provide to EPA copies of all draft jeopardy biological opinions

and draft no jeopardy biological opinions with incidental take

statements, unless EPA specifically requests that a draft not be

provided.

4. Effects of an Action

All ``effects of the action'' and ``cumulative effects'' will be

considered in the Service's biological opinions (50 CFR 402.14(c),

402.14(g) (3) and (4), and 402.14(h)). The ``effects of an action''

include all direct as well as indirect effects that are reasonably

certain to occur, even at a later time. Effects of an action include

effects of interrelated and interdependent actions associated with the

proposed action in question. Cumulative effects include future State or

Tribal and private actions that are reasonably certain to occur in the

action area that do not involve Federal activities. Water quality

criteria and State or Tribal water quality standards establish levels

of pollutants from all sources, and so would account for all such

effects insofar as water quality is concerned. Since NPDES permits are

established to achieve water quality standards, they will account for

point source effects insofar as water quality is concerned.

5. Biological Evaluation

Although section 7(c) of the ESA refers to a biological assessment

as an element of the consultation process, a biological assessment is

required only in the case of a major construction activity, as defined

at 50 CFR 402.02. The purpose of a biological assessment is to enable

an agency to determine whether a proposed action is likely to adversely

affect Federally-listed species and designated critical habitat. A

biological assessment also assists an agency in complying with

potential ESA ``conference'' requirements for proposed species and

critical habitat under 50 CFR 402.10. For EPA actions that are not

major construction activities, an alternative document that may be used

for decision-making is a biological evaluation. While a biological

evaluation is not required by regulation, EPA will develop such an

evaluation where the Agency determines it would be appropriate for

determining whether listed species may be affected by the proposed

action and for assisting consultation with the Services. The Services

recognize that the content and format of the biological evaluation are

to be determined by EPA.

A biological evaluation is an analysis of the potential effects of

a proposed action on listed species or their critical habitat based

upon the best available scientific or commercial information. The

biological evaluation will vary in extent and rigor according to the

certainty and severity of an action's deleterious effect. For example,

a biological evaluation may be very brief if the expected result of an

action is straightforward, is beneficial, or is of little or no

consequence. If, on the other hand, the potential effects are severe,

large in scope, complex or uncertain in terms of outcome, the analysis

would need to be more extensive and rigorous.

A biological evaluation can be used for decision-making prior to

and throughout section 7 consultation and for a possible conference on

proposed species or critical habitat. The evaluation can be used to

make a ``may effect'' or ``no effect'' determination, or to support a

judgment that the proposed action is or is not likely to adversely

affect listed species or their critical habitat.

If early or formal consultation is initiated, a biological

evaluation or biological assessment can be used by the appropriate

Service in rendering a preliminary or final biological opinion.

6. Timeliness of Actions

In informal and formal consultation, EPA and the Services agree to

adhere to time frames set forth in 50 CFR part 402 and supplemental

guidance provided in this Agreement, in order to enable EPA to meet

statutory and regulatory deadlines under the CWA. EPA will strive to

provide advance notice to the Services concerning anticipated

consultations, to provide thorough biological evaluations, to comment

promptly on draft opinions and to provide, where appropriate,

additional available information requested by the Services.

If during informal consultation EPA determines that the action is

not likely to adversely affect listed species or critical habitat, then

EPA will notify the Service in writing. The Service will respond in

writing within 30 days of receipt of such a determination, unless

extended by mutual agreement. The response will state whether the

Service concurs or does not concur with EPA's determination. If the

Service does not concur, it will provide a written explanation that

includes the species and/or habitat of concern, the perceived adverse

effects, supporting information, and a basic rationale.

The Services may request that EPA initiate consultation on a

Federal action. The Services do not have the authority, however, to

require the initiation of consultation. The Services' written

explanation of the request shall include the species and/or critical

habitat of concern, manner in which there may be an effect, supporting

information, and a basic rationale.

The Services will strive to issue biological opinions within 90

days of an initiation of formal consultation unless

[[Page 2750]]

the Services and EPA agree to extend the consultation period. The

timing of activities during consultation may be further expedited as

necessary taking into account legal deadlines for EPA action and the

agencies' programmatic needs. EPA, where appropriate, will enter into

early consultation with the Services in order to ensure that EPA meets

its statutory CWA deadlines for decision-making. In addition, EPA and

the Services agree to make every effort to provide prompt and

responsive communications to ensure States, Tribes, and permit

applicants do not suffer undue procedural delays.

7. EPA Responsibility at the Conclusion of Section 7 Consultation

Following issuance of a biological opinion, EPA will determine

whether and in what manner to proceed with the action in light of its

CWA and section 7 obligations. If a jeopardy opinion is issued, EPA

will notify the Services of its final decision on the action.

8. Reinitiation of Formal Consultation

The section 7 regulations define conditions under which EPA or the

Services will request reinitiation of formal consultation at 50 CFR

402.16. The Services and EPA will work cooperatively to evaluate any

new information to determine if reinitiation is necessary.

C. Proposed Species and Proposed Critical Habitat

The Services will identify proposed species and proposed critical

habitat to EPA Regional offices. EPA will evaluate any CWA activities

it authorizes, funds, or carries out that are subject to section 7 and

determine if they are likely to jeopardize proposed species or result

in the destruction or adverse modification of proposed critical

habitat. If so, EPA will confer with the Services using the procedures

under 50 CFR 402.10. The Services may also initiate a request for

conference on a particular action.

D. Recovery Program

Section 7(a)(1) of the ESA provides that Federal agencies shall

utilize their authorities in furtherance of the purposes of the ESA by

carrying out programs for the conservation and recovery of threatened

and endangered species. Section 7 consultation and the recovery

planning and implementation process are two primary mechanisms that EPA

can use as guides to identify actions that EPA or the Services believe

are needed to protect and recover Federally-listed species.

1. Conservation Recommendations to Assist Recovery

The section 7 consultation process is primarily intended to ensure

that EPA's actions are not likely to jeopardize the continued existence

of Federally-listed species or adversely modify their critical habitat.

However, biological opinions may contain discretionary conservation

recommendations to promote the recovery of the subject species. (50 CFR

402.02 defines conservation recommendations as suggestions of the

Services regarding the development of information or discretionary

measures to minimize or avoid adverse effects of a proposed action on

listed species or critical habitat.) Implementation of these

conservation recommendations would help conserve and recover listed

species.

Frequent and informal contact between the Services and EPA is

encouraged during all stages in the development of conservation

recommendations. During section 7 consultation, the Services will work

closely with EPA to identify conservation recommendations and evaluate

the feasibility of their implementation.

2. Recovery Planning

Recovery plans are developed in three stages: (a) Technical drafts

that are intended to provide agencies an opportunity to assist the

Services in developing biologically sound recovery plans; (b) Agency

drafts which outline the various tasks the Services feel may be within

the jurisdiction of other agencies and are circulated for public

comment (the Technical and Agency Draft are sometimes combined into one

document to save time); and (c) the final plan.

The Services will invite EPA to serve as members of Recovery Teams

where water quality is a concern or EPA has particular expertise,

provide to EPA copies of all draft recovery plans that contain water

quality related recovery tasks, and actively solicit EPA's involvement

during all phases of recovery plan development. The Services will also

solicit State or Tribal involvement, where appropriate. EPA will

provide the Services with comments related to water quality threats,

recovery issues, and will suggest areas where plans could be modified

to include specific actions to support the species recovery effort.

3. Recovery Implementation

EPA and the Services will hold recovery planning/implementation

discussions or meetings, on at least an annual basis. The members of

this group and the geographic area covered by this group will vary

among Regions, depending on the geographic range and number of species

impacted by water quality. The meetings could be organized on a

watershed or ecosystem basis and involve field and/or Regional

personnel. These groups will discuss current and upcoming water

quality/listed species related activities, and provide input for

prioritizing watersheds (e.g., the number of listed species, the

seriousness of threats, and the opportunities for conservation/recovery

success) for potential future coordinated activities.

E. Candidate Conservation Activities

The Services and EPA will develop watershed and ecosystem based

initiatives to identify and remove those conditions that may lead to

future listings. Efforts should focus on candidate species and other

species of concern and their associated ecosystems. The local/regional

coordinating teams will identify specific focus areas.

VI. National Level Activities to Ensure Protection of Species

EPA will take the following steps at the national level to ensure

that State and Tribal permitting programs and water quality standards

provide protection for endangered and threatened species.

A. National Rule-making

EPA will propose amendments to its national water quality standards

regulations (40 CFR part 131) to include provisions to ensure the

protection of endangered and threatened species within 24 months

following the execution of this Agreement. EPA will propose to require

that water quality not likely jeopardize the continued existence of

endangered or threatened species or result in the destruction or

adverse modification of designated critical habitat, including a

prohibition of mixing zones or variances that would be likely to cause

jeopardy, and a requirement that States or Tribes adopt site-specific

water quality criteria (tailored to the geographic range of the species

of concern) where determined to be necessary to avoid a likelihood of

jeopardy.

After consideration of public comment, EPA will adopt appropriate

provisions in a final regulation.

[[Page 2751]]

B. Development of New Water Quality Criteria Methodological Guidelines

EPA will continue to invite the Services to be represented on EPA's

Aquatic Life Criteria Guidelines Committee. EPA has charged this

committee with revising and updating EPA's methodological guidelines

for issuance of new 304(a) water quality criteria guidance values. As

members of the committee, the Services and EPA will ensure that these

methodological guidelines take into account the need to protect

Federally-listed species. The Services will assist EPA to (1) develop

and have peer reviewed a list of surrogate and target endangered and

threatened species that could be used in pollutant toxicity testing and

(2) assist in the development of biocriteria for streams, rivers,

lakes, wetlands, estuaries or marine waters that contain endangered and

threatened species or designated critical habitat.

These methodological guidelines are subject to peer review, public

notice and comment prior to being finalized. Prior to the public

comment period, the Directors will provide the Services' views

regarding the guidelines so that the public will have the benefit of

the Services' views during the comment period. The Services will also

be invited to participate in the peer review process for the

development of new criteria values under section 304(a), and will

designate technical experts to provide the Services' views during the

peer review process.

C. National Consultation on CWA Section 304(a) Aquatic Life Criteria

1. Overview

Under section 304(a) of the CWA, EPA from time to time publishes

water quality criteria that serve as scientific guidance to be used by

States or Tribes in establishing and revising water quality standards.

These criteria are not enforceable requirements, but are recommended

criteria levels that States or Tribes may adopt as part of their

legally enforceable water quality standards. States or Tribes may,

however, adopt other scientifically defensible criteria in lieu of

EPA's recommended criteria (see 40 CFR 131.11(b)). EPA has to date

published criteria for the protection of aquatic life for 45

pollutants. EPA has developed an interim-final ``Water Quality Criteria

and Standards Plan'' (EPA, June 1998) to guide the development and

implementation of new or modified 304(a) criteria in the coming years.

The objective of EPA's criteria program is to provide scientific

information to States and Tribes that will best facilitate the overall

protection of the aquatic ecosystem. A better understanding of the

effects of water pollution on endangered and threatened species will

help achieve this objective. Therefore, EPA and the Services will

conduct a section 7 consultation on the aquatic life criteria to assess

the effect of the criteria on listed species and designated critical

habitat. EPA and the Services will also conduct a conference regarding

species proposed for listing and proposed designated critical habitat.

EPA will consider the results of this consultation as it implements and

refines its criteria program, including decisions regarding the

relative priorities of revising existing criteria and developing new

criteria.

EPA and the Services have gained considerable experience in

evaluating the potential effects on endangered and threatened species

of pollutants for which EPA has published recommended aquatic life

criteria under section 304(a) of the CWA. For example, the Services

have issued biological opinions as a result of section 7 consultations

on aquatic life criteria approved by EPA in water quality standards

adopted by the States of New Jersey, Alabama, and Arizona, and

promulgated by EPA for the Great Lakes Basin. EPA is currently

conducting consultation with the Services regarding aquatic life

criteria being promulgated by EPA for toxic pollutants for certain

waters in California. These opinions have evaluated (or are evaluating)

the effects of criteria pollutants on 87 aquatic species, which

constitute approximately 42% of listed aquatic species in the country.

Grouped by taxonomic family, these consultations have evaluated the

effects of criteria pollutants on one or more species in approximately

65% of those families to which listed aquatic species belong. In

addition to these comprehensive formal consultations, EPA and the

Services have also conducted informal consultations on State water

quality standards approval actions which have covered water quality

criteria contained in the standards.

EPA and the Services recognize, however, that conducting

consultations on a State-by-State basis is not the most efficient

approach to evaluating the effects of water pollution on endangered and

threatened species throughout the country. A national consultation will

ensure a consistent approach to evaluating the effects of pollutants on

species and identifying measures that may be needed to better protect

them. A national consultation will also ensure better consideration of

effects on species whose ranges cross State boundaries.

2. Procedures for Consultation

The consultation will be conducted in accordance with the

procedures in 50 CFR part 402 and the guidance contained in the

Services' Consultation Handbook. EPA and the Services also anticipate

that the consultation will follow the basic approach described below.

The agencies will endeavor to streamline their processes to complete

this consultation within eighteen months.

EPA and the Services anticipate that the national consultation will

focus on aquatic and aquatic-dependent species. The consultation will

be conducted on a national basis, and therefore, will not be waterbody-

specific. In addition, given the numbers of species involved in the

consultation, the effects on species will be evaluated to the maximum

extent possible based on groupings of species believed to be affected

in a similar manner.

The agencies will take a collaborative approach to evaluating the

effects of the criteria pollutants on listed species, and joint teams

will be established to conduct the consultation. With input from the

Services, EPA will prepare a biological evaluation based on the best

scientific and commercial data available, and will provide a rationale

for any findings regarding the effects of the criteria pollutants on

listed species. EPA will make ``effects determinations'' based on the

direct and indirect effects of the 45 pollutants on listed species. EPA

will evaluate the effects of pollutants on species in the water column

based upon the available toxicological data, principally the data

assembled in EPA's criteria development documents as well any more

recent toxicological information. EPA will consider other exposure

scenarios to aquatic and aquatic-dependent species and provide

available information to the Services.

The Services will work collaboratively with EPA in developing their

biological opinion, including the development of any reasonable and

prudent measures or alternatives to minimize anticipated incidental

take or to avoid likely jeopardy to listed species or adverse

modification or destruction of designated critical habitat. Any

reasonable and prudent measures or alternatives that identify research

needs will be mutually developed and will reflect priorities

established by the national research and data gathering plan. Should

the opinion call for revisions to existing criteria or issuance of new

criteria, the opinion will recognize EPA's practice of subjecting new

or revised criteria to public notice

[[Page 2752]]

and comment and external peer review prior to being finalized. EPA

believes that the existing criteria provide a significant degree of

protection for the aquatic ecosystem (including listed species). The

agencies agree that, until any revisions of criteria are completed, the

agencies will, to the maximum extent practicable, maintain the status

quo by continuing to implement such criteria in water quality standards

programs prior to revisions to the criteria.

Because the effects of the criteria pollutants on certain listed

species have already been evaluated in biological opinions issued by

the Services, the agencies will rely upon the scientific information

and conclusions in those consultations to the maximum extent possible.

Such prior opinions will remain in effect unless consultation is

reinitiated.

The national consultation will provide section 7 coverage for any

water quality criteria included in State or Tribal water quality

standards approved, or Federal water quality standards promulgated, by

EPA that are identical to or more stringent than the recommended

section 304(a) criteria. Therefore, separate consultation on such

criteria will not be necessary, subject to requirements related to

reinitiation of consultation under 50 CFR 402.16. If, during the

national consultation, EPA proposes to take an action approving or

promulgating numeric standards that are identical to or more stringent

than the existing 304(a) criteria, such action will be covered by the

national consultation. EPA and the Services agree that EPA may proceed

with its action pending the conclusion of the national consultation.

EPA will ensure that its action does not have the effect of foreclosing

the formulation or implementation of any reasonable and prudent

alternatives in the national consultation by stating that EPA's action

is subject to revision based on the results of the consultation.

VII. Joint National Research and Data Gathering Plan and Priorities

EPA and the Services will convene a work group of scientific and

technical personnel to develop a research and data gathering plan that

supports water quality standards protective of species of concern and

the ecosystems they inhabit. The goal of the plan is to identify high

priority data and information needed to reduce uncertainty concerning

the degree to which water quality criteria and permits are protective

of endangered or threatened species. The plan also recognizes the

agencies' joint interest in, and responsibility for, funding and

conducting research related to endangered and threatened species. The

information gathered as a result of this joint plan and the national

consultation will be used by EPA in the revision or development of

national 304(a) water quality criteria, in review of State and Tribal

water quality standards, and the evaluation of permits. Similarly, the

Services will use this information in assessing threats and minimizing

adverse effects to listed species. The agencies agree that the plan

should be completed, if possible, within eighteen months of the signing

of this Agreement.

The work group will primarily be concerned with three tasks: (1)

development of the research plan, including the components identified

below; (2) evaluating and prioritizing research or data gathering needs

identified in consultations on EPA's review of specific State and

Tribal water quality standards; and (3) overseeing and coordinating the

implementation of the national research/data gathering plan.

A. Existing and New Water Quality Criteria

The national research work group will identify those CWA section

304(a) aquatic life criteria that are the highest priority candidates

for additional research based on issues identified in consultations on

State and Tribal water quality standards and the national consultation

on the aquatic life 304(a) criteria published by EPA under section

304(a) of the CWA.

The work group will also identify the highest priority areas for

the development of new national 304(a) water quality criteria to

protect listed species. The work group will take into account new

criteria development needs identified in consultations on State and

Tribal water quality standards including, in particular, the priority

to be given to the development of wildlife criteria for areas where

such criteria have not been developed (i.e., outside the Great Lakes

Basin).

B. Work Group Report to Agreement Signatories

Within one year of signing this Agreement, the work group will

submit a comprehensive report to the signatories of this Agreement (or

their successors) that (1) summarizes the range of research options

considered by the work group; (2) makes recommendations regarding

priority research and data gathering undertakings for existing and new

water quality criteria; (3) describes the recommended additional

research; (4) estimates the likely cost of the research; (5) evaluates

available funding for completing the research; and (6) establishes a

specific time frame for completing the research and data gathering.

C. National Research and Data Gathering Plan

After taking into account the recommendations of the work group,

the signatories of this Agreement (or their successors) will adopt a

national research and data gathering plan within eighteen months of the

signing of this Agreement. The plan will identify near-term (1-5 years)

priorities reflecting the highest priorities identified by the agencies

that can be accomplished with available and anticipated funding

sources. The plan will also identify longer term (5-10 years)

priorities. The agencies will work to incorporate the plan into their

respective budgets, and to achieve economies of scale and increased

effectiveness in the use of limited funds by coordinating efforts

wherever possible. The agencies will also work to coordinate the plan

with the White House-sponsored Committee on the Environment and Natural

Resources.

D. Consultation on State and Tribal Water Quality Standards

On an ongoing basis, the work group will provide expertise and

assistance to the field/regional offices regarding research/data

gathering issues raised in consultations on State and Tribal water

quality standards. Where such consultations identify significant

research/data gathering priorities, those priorities will be forwarded

for evaluation by the work group. With input from the regional/field

offices, the work group will determine the priority of such research

and data gathering in relation to other needs contained in the national

plan. This process will enable the agencies to rationally allocate

their resources as new research/data gathering needs arise.

VIII. Consultation on Water Quality Standards Actions

A. Development of New or Revised State or Tribal Water Quality

Standards

EPA will communicate and, where required under section 7 of the

ESA, consult with the Services on new or revised State or Tribal water

quality standards and implementing procedures that are subject to EPA

review and approval under section 303(c) of the CWA.

If a State or Tribe requests, or upon mutual agreement, EPA may, by

[[Page 2753]]

notifying the appropriate Service(s) in writing, designate a State or

Tribe to serve as a non-Federal representative to conduct informal

consultation in accordance with 50 CFR 402.08.

1. Scoping of Issues To Be Considered During the Triennial Review

Process

Section 303(c) of the CWA requires States to adopt and revise

standards at least on a triennial basis. The Services and EPA recognize

that to accomplish timely implementation of standards that may affect

Federally-listed species and designated critical habitat, early

involvement and technical assistance by the Services is needed. In an

effort to facilitate collaboration and the consultation process, EPA

regional offices will provide the Services annually with a list of all

upcoming scheduled triennial reviews for the next 5 year period.

The Services will participate in a meeting with EPA and the State

or Tribe to discuss the extent of an upcoming review. EPA will take the

lead to schedule the meeting near the start of the triennial review

process.

2. Development of State or Tribal Standards

EPA will seek the technical assistance and comments of the Services

during a State's or Tribe's development of water quality standards and

related policies. The Services will provide the States or Tribes and

EPA with information on Federally-listed species, proposed species and

proposed critical habitat, and designated critical habitat in the State

or on Tribal lands. EPA will provide assistance to the Services in

obtaining descriptions of pollutants and causes of water quality

problems within a watershed or ecosystem. The Services will work

cooperatively with the States or Tribes to identify any concerns the

Services may have and how to address those concerns. EPA will request

the Services to review and comment on draft standards, and to

participate in meetings with States or Tribes as appropriate. EPA will

indicate which of these requests are of high priority, and the Services

will make every effort to be responsive to these requests.

Where appropriate, EPA and the Services will encourage the State or

Tribe to adopt special protective designations where listed or proposed

threatened or endangered species are present or critical habitat is

designated or proposed.

EPA will initiate discussions with the Services if there is a

concern that a draft State or Tribal standard or relevant policy may

impact Federally-listed species or critical habitat.

3. Adoption and Submittal of State or Tribal Standards

States or Tribes adopt new and revised standards and implementing

policies from time to time as well as at the conclusion of the

triennial review period.

After the final action adopting the standards, the State or Tribe

sends its adopted and effective standards to EPA. Once received, EPA is

required by the CWA to approve the standards within 60 days or

disapprove them within 90 days. Section 7 consultation is required if

EPA determines that its approval of any of the standards may affect

listed species or designated critical habitat. The time periods

established by the CWA require that EPA and the Services work

effectively together to complete any needed consultation on a State's

or Tribe's standards quickly. In order to provide enough time for

consultation with the Services where the approval may affect endangered

or threatened species, EPA will work with the State or Tribe with the

goal of providing to the Services a final draft of the new or revised

water quality standards 90 days prior to the State's or Tribe's

expected submission of the standards to EPA. When needed, EPA will

prepare a biological evaluation based on the final draft and, where

appropriate, request formal consultation. The Services agree to consult

on the final draft, and to accommodate minor revisions in the standards

that may occur during the State's or Tribe's adoption process. The

Services will make every effort to complete consultation and delivery

of a final biological opinion within 90 days, or on a schedule agreed

upon with the EPA Regional Office.

4. EPA Develops Biological Evaluation

When needed, EPA will develop a biological evaluation to analyze

the potential effect of any new or revised State or Tribe adopted

standards that may affect Federally-listed species or critical habitat.

5. EPA Determination of ``No Effect'' or ``May Affect''

EPA will evaluate proposed new or revised standards and use any

biological evaluation or other information to determine if the new or

revised standards ``may affect'' a listed species or critical habitat.

For those standards where EPA determines that there is ``no effect,''

EPA may record the determination for its files and no consultation is

required. Although not required by section 7 of the ESA for actions

that are not major construction activities as defined by 50 CFR 402.02,

EPA will share any biological evaluation, ``no effect'' determination,

and supporting documentation used to make a ``no effect'' determination

with the Services upon request.

If EPA decides that the new or revised water quality standards

``may affect'' a listed species, then EPA will enter into informal

consultation (unless EPA decides to proceed directly to formal

consultation) to determine whether the standards are likely to

adversely affect Federally-listed species or critical habitat. If EPA

determines that the species or critical habitat is not likely to be

adversely affected, EPA will request the Service to concur with its

finding.

Where EPA finds that a species or critical habitat is likely to be

adversely affected, EPA will consider, and the Services may suggest,

modifications to the standards(s) or other appropriate actions which

would avoid the likelihood of adverse effects to listed species or

critical habitat. If the likelihood of adverse effects cannot be

avoided during informal consultation, then EPA will initiate formal

consultation with the Service or EPA may choose to disapprove the

standard. In addition, if EPA finds that a proposed species is likely

to be jeopardized or proposed critical habitat adversely modified by

EPA approval of a new or revised State or Tribal standard, EPA will

confer with the Services under 50 CFR 402.10.

6. Services' Review of ``Not Likely to Adversely Affect'' Determination

Within 30 days after EPA submits a ``not likely to adversely

affect'' determination, the Services will provide EPA with a written

response on whether they concur with EPA's findings. The Services will

provide EPA with one of the three following types of written responses:

1) concurrence with EPA's determination (this would conclude

consultation), 2) non-concurrence with EPA's determination and, if the

Service cannot identify the specific ways to avoid adverse effects, a

request that EPA enter into formal section 7 consultation (see 7

below), or 3) a request that EPA provide further information on their

determination. If it is not practicable for EPA to provide further

information, the Services will make a decision based on the best

available scientific and commercial information.

7. Formal Consultation

Formal consultation on new or revised standards adopted by a State

or Tribe will begin on the date the Services and EPA jointly agree that

the information provided is sufficient to initiate consultation under

50 CFR

[[Page 2754]]

402.14(c). The consultation will be based on the information supplied

by EPA in any biological evaluation and other relevant information that

is available or which can practicably be obtained during the

consultation period (see 50 CFR 402.14 (d) and (f)).

If the Service anticipates that incidental take will occur, the

Service's biological opinion will provide an incidental take statement

that will normally contain reasonable and prudent measures to minimize

such take, and terms and conditions to implement those measures.

Reasonable and prudent measures can include actions that involve only

minor changes to the proposed action, and reduce the level of take

associated with project activities. These measures should minimize the

impacts of incidental take to the extent reasonable and prudent.

Measures are considered reasonable and prudent when they are consistent

with the proposed action's basic design, location, scope, duration, and

timing. The test for reasonableness is whether the proposed measure

would cause more than a minor change to the proposed action. 50 CFR

402.14(I)(2).

Appropriate minor changes can include, for example, a condition

stating that the EPA Regional Office will work with the State or Tribe

to obtain revisions to the water quality standards in the next

triennial review. Where either of the Services believe that there is a

need for the standards to be revised more quickly, the Service should

work with EPA and the State or Tribe to determine whether any revisions

could be developed more quickly than the next anticipated triennial

review. Because reasonable and prudent measures should not exceed the

scope of EPA actions, reasonable and prudent measures in a water

quality standards consultation should not impose requirements on other

CWA programs unless agreed to by both EPA and the Service(s).

The Services may include research or data gathering undertakings as

conditions of an incidental take statement contained in a biological

opinion where it determines that the way to minimize future incidental

take is through research and data gathering. However, to the maximum

extent possible, the Services will work with EPA to identify research

needs that will be addressed in the National Research and Data

Gathering Plan. The Plan identifies high priority data and information

needed to reduce the uncertainty inherent in the degree to which water

quality criteria would protect listed species. Research and data

identified in the Plan has the goal of minimizing any incidental take

associated with water quality standards.

Where site specific research or data are needed that are not

addressed in the National Plan, the biological opinion will explain how

the research or data gathering will minimize such take while not

altering the basic design, location, scope, duration, or timing of the

action.

Where a regional EPA office finds that it is not practicable to

complete the research or data gathering requested in the draft opinion,

but the Services believe that inclusion of the research condition is

important to minimizing incidental take, the Services may elevate the

issue in accordance with the procedures in section V.A. of this

Agreement. During the elevation process, the agencies will evaluate the

need for the research identified by the Service in the water quality

standards consultation in light of available resources and the National

Plan.

Reasonable and prudent measures and terms and conditions should be

developed in close coordination with the EPA and the State or Tribe, to

ensure that the measures are reasonable, that they cause only minor

changes to the proposed action, and that they are within the legal

authority and jurisdiction of the Agency to carry out. If the

Service(s), EPA, and the States or Tribe cannot reach agreement on

appropriate reasonable and prudent measures or terms and conditions at

the level the consultation is being conducted, the decision can be

elevated by the procedures discussed in section V.A.

As a general matter, EPA disapproval of a State or Tribal water

quality standard is not a minor undertaking because it triggers a legal

duty on the part of EPA to initiate promptly Federal rule-making unless

the State or Tribe revises the standard within 90 days (see CWA

303(c)(3) and (4)). Where the Services and EPA agree, however,

disapproval of a State or Tribal water quality standard may be included

as a condition of incidental take authorization.

The Services will issue a biological opinion that concludes whether

any Federally-listed species are likely to be jeopardized or critical

habitat adversely modified or destroyed by the State or Tribe's new or

revised water quality standards. If either of the Services makes a

jeopardy or adverse modification finding, it will identify any

available reasonable and prudent alternatives, which may include, but

are not limited to, those specified below. EPA will notify the Service

of its final decision on the action.

Some possible ideas for development of specific reasonable and

prudent alternatives:

a. EPA coordinates with the State or Tribe to adopt (or revise)

water quality standards necessary to remove the jeopardy situation.

b. EPA disapproves relevant portions of the State or Tribe's

adopted standards (see 40 CFR 131.21) and initiates promulgation of

Federal standards for the relevant water body (see 40 CFR 131.22).

Where appropriate, EPA would promulgate such standards on an expedited

basis.

c. Using its authority under section 303(c)(4)(B) of the CWA, EPA

promulgates Federal standards as necessary.

8. EPA Action on State or Tribal Standards

After reviewing the biological opinion, EPA will inform the Service

of its intended action.

B. Existing Water Quality Standards

If the Services present information to EPA, or EPA otherwise has

information supporting a determination that existing State or Tribal

water quality standards are not adequate to avoid jeopardizing

endangered or threatened Federally-listed species or adversely

modifying critical habitat or for protecting and propagating fish,

shellfish and wildlife, EPA will work with the State or Tribe in the

context of its triennial review process to obtain revisions in the

State or Tribal standards. Such revisions could include, where

appropriate, adoption of site-specific water quality standards tailored

to the geographic range of the species of concern. If a State or Tribe

does not make such revisions, the EPA regional office will recommend to

the EPA Administrator that a finding be made under section 303(c)(4)(B)

of the CWA that the revisions are necessary.

EPA will engage in section 7 consultation to ensure that any

revisions to the existing standards are not likely to jeopardize the

continued existence of endangered or threatened species or result in

the destruction or adverse modification of designated critical habitat

and to minimize any anticipated incidental take. If EPA and the

Services disagree regarding the need for revisions in the State or

Tribal standards, the issue may be elevated. Consultation will be

consistent with the provisions of 50 CFR 402 and part A above.

C. Consultation on EPA Promulgation of State or Tribal Water Quality

Standards

EPA promulgation of State or Tribal water quality standards is a

Federal

[[Page 2755]]

rule-making process and EPA will comply with the consultation

requirements of section 7 of the ESA with any promulgation.

IX. Permitting Program Activities

This Agreement establishes a framework for coordinating actions by

EPA and the Services for activities under the CWA section 402. These

activities are: (1) EPA approval of State or Tribal permitting

programs, (2) EPA review of permits issued by States or Tribes with

approved permitting programs, and (3) EPA issuance of permits under

section 402 of the CWA.

A. Programmatic Section 7 Consultation

EPA and the Services will conduct a national programmatic

consultation on whether the establishment of the procedures identified

in section IX.B below is sufficient to avoid the likely jeopardy of

listed species due to discharges authorized under State and Tribal

NPDES programs. The consultation will be conducted in accordance with

the procedures in 50 CFR part 402 and the guidance contained in the

Services' Consultation Handbook.

In its consultation request, EPA will provide the Services with a

description of the CWA requirements applicable to the State and Tribal

programs and EPA's program oversight authorities that are proposed to

ensure that species will be protected, including the identification of

State or Tribal water quality standards that ensure the protection of

endangered and threatened species.

If the Services anticipate that State/Tribal NPDES permits would

cause incidental take of listed species, the agencies anticipate that

the Services' opinion will authorize such take, except where the

Service believes that the adverse effects of a permit are more than

minor and, after elevation to headquarters, EPA chooses not to object

to the permit under its CWA authorities. The Services anticipate that

any incidental take authorization will apply to discharges authorized

under permits issued after issuance of the biological opinion.

The agencies anticipate that the Services' biological opinion will

cover all existing State/Tribal NPDES programs and any State/Tribal

program submitted after issuance of the biological opinion where EPA

makes a written commitment to follow coordination procedures that the

Services agree are consistent with the procedures contained in the

biological opinion on the national consultation. The agencies will

determine whether the opinion should also cover existing NPDES programs

that have been subject to section 7 consultation.

As new species are added to the list of threatened and endangered

species, the Services will evaluate the impact of State or Tribal

program assumption on the new species and determine whether

reinitiation of consultation is warranted.

B. Coordination Procedures Regarding Issuance of State or Tribal

Permits

EPA has authority and responsibility for overseeing the operation

of State/Tribal NPDES programs through, among other means, review of

State/Tribal NPDES permits where appropriate. EPA's oversight includes

consideration of the impact of permitted discharges on waters and

species that depend on those waters. EPA does this by determining

whether State or Tribal permits indeed attain water quality standards.

The procedures outlined below are designed to assist EPA in fulfilling

these CWA oversight responsibilities.

EPA and the Services agree to follow the coordination procedures

below with regard to EPA review of State or Tribal permits in all

existing and new permitting programs approved by EPA under section 402

of the CWA. Procedures and time lines for EPA review and objection to

State or Tribal permits are established by statute and regulation. See

CWA section 402(d); 40 CFR 123.44. Where EPA determines that exercise

of its objection authority is appropriate to protect endangered and

threatened species, the Agency will act pursuant to its existing

authorities under the CWA (i.e., where the proposed permit would be

``outside the guidelines and requirements'' of the CWA. See CWA

402(d)(2)). EPA and the Services will follow the coordination

procedures below in a manner consistent with these statutory and

regulatory procedures:

1. The Services will provide the States or Tribes with information

on Federally-listed species and any designated critical habitat in the

States or on Tribal lands, with special emphasis on aquatic and

aquatic-dependent species.

2. States are obligated under existing CWA regulatory authority

requirements to provide notice and copies of draft permits to the

Services. See 40 CFR 124.10(c)(1)(iv) and (e). EPA will exercise its

oversight authority to ensure that States and Tribes carry out this

obligation. EPA and the Services will work with States and Tribes to

share information on permits that may raise issues regarding impacts to

threatened or endangered species or designated critical habitat.

3. If the Service or EPA is concerned that a NPDES permit is likely

to have an adverse impact on a Federally-listed species or critical

habitat, the Service or EPA will contact the appropriate State or

Tribal agency (preferably within 10 days of receipt of a notice of a

draft State or Tribal permit) to discuss identified concerns. The

Service or EPA will provide appropriate information in support of

identified concerns. The Services and EPA will provide copies to each

other of comments made to States or Tribes on issues related to

Federally-listed species.

4. If unable to resolve identified issue(s) with the State or

Tribe, the Service will contact the appropriate EPA Regional Branch not

later than five working days prior to the close of the public comment

period on the State's or Tribe's draft NPDES permit. Telephone contacts

should be followed by written documentation of the discussion with EPA

and include or reference any relevant supporting information.

5. If contacted by the Services, EPA will coordinate with the

Services and the State or Tribe to ensure that the permit will comply

with all applicable CWA requirements, including State or Tribal water

quality standards, which include narrative criteria prohibiting toxic

discharges, and will discuss appropriate measures protective of

Federally-listed species and critical habitat.

6. EPA may make a formal objection, where consistent with its CWA

authority, or take other appropriate action, where EPA finds that a

State or Tribal NPDES permit will likely have an adverse effect on

Federally-listed species or critical habitat.

For those NPDES permits with adverse effects on Federally-listed

species or critical habitat that are minor, it is the intention of the

Services and EPA that the Services will work with the State or Tribe to

reduce the adverse effects stemming from the permit. For those NPDES

permits that have adverse effects on Federally-listed species or

critical habitat that are more than minor, including circumstances

where the discharge fails to ensure the protection and propagation of

fish, shellfish and wildlife, and where the State or Tribe and the

Services are unable to resolve the issues, it is the intention of the

Services and EPA that EPA would work with the State or Tribe to remove

or reduce the adverse impacts of the permit, including, in appropriate

cases, by objecting to and Federalizing the permit where consistent

with EPA's CWA authority.

EPA will use the full extent of its CWA authority to object to a

State or Tribal permit where EPA finds (taking into account all

available information,

[[Page 2756]]

including any analysis conducted by the Services) that a State or

Tribal permit is likely to jeopardize the continued existence of any

listed species or result in the destruction or adverse modification of

critical habitat.

Note: EPA may review or waive review of draft State or Tribal

NPDES permits (40 CFR 123.24(d)). EPA will work with the Services

through the local/regional coordinating teams to help determine

which categories of permits should be reviewed for endangered

species concerns. If EPA finds that a draft permit has a reasonable

potential to have more than a minor affect on listed species or

critical habitat, and review of a draft permit has been waived, EPA

will withdraw this waiver during the public comment period (see 40

CFR 123.24(e)(1)).

7. If EPA objects to a NPDES permit under paragraph 6 above, EPA

will follow the permit objection procedures outlined in 40 CFR 123.44

and coordinate with the Services in seeking to have the State or Tribe

revise its permit. A State or Tribe may not issue a permit over an

outstanding EPA objection. If EPA assumes permit issuing authority for

a NPDES permit, EPA will consult with the Service prior to issuance of

the permit (as a Federal action) as appropriate under section 7 of the

ESA.

8. In the case of State or Tribal permits that have already been

issued, if the Services identify a permitted action which is likely to

have an adverse effect on Federally-listed species or critical habitat,

then the Services will contact the State or Tribe to seek to remedy the

situation. EPA will provide support and assistance to the Services in

working with the State or Tribe. Although EPA may, at the time of

permit issuance, object to and assume permit-issuing authority for

draft NPDES permits, EPA has no authority to require changes to an

already-issued State or Tribal permit. EPA or the Services could

request that the State or Tribe use State or Tribal authority to reopen

an issued permit if it is likely to adversely affect Federally-listed

species or critical habitat.

C. Issuance of EPA Permits

EPA issuance of a permit is an action subject to section 7

consultation if it may affect listed species or critical habitat. EPA

will meet ESA requirements as provided in 40 CFR 122.49(c) on the

issuance of individual and general NPDES permits, and 50 CFR part 402.

If consultation has been completed on State or Tribal water quality

standards and the NPDES permit conforms with those standards, then any

ESA section 7 review process should be simplified.

EPA will assure that all permits ensure the attainment and

maintenance of State or Tribal water quality standards, including those

that have been the subject of consultation or have been determined to

have ``no effect'' on listed species and critical habitat.

EPA and the Services agree to coordinate as follows in the review

of EPA-issued permits.

1. The Services will provide to EPA, when requested, information

regarding the presence of Federally-listed species, critical habitat,

proposed species and proposed critical habitat, including species

lists, maps, and other relevant information.

2. EPA will review permit applications and other available

information (including that previously provided by the Services) to

determine if issuance of a permit may affect any Federally-listed

species or critical habitat. If EPA makes a ``no effect'' finding, EPA

will document this determination in the permit record before public

notice. EPA will also determine whether proposed species are likely to

be jeopardized or proposed critical habitat adversely modified. EPA

will provide the Services with the public notice of the proposed permit

and EPA's determination of no effect. During the 30-day public comment

period, the Services may submit comments on EPA's determination. The

Services may request initiation of consultation on Federally-listed

species or critical habitat or conference on proposed species if it

believes the proposed action may affect listed species.

3. If EPA determines that the permitted action may affect

Federally-listed species or critical habitat, EPA will initiate either

informal or formal consultation. If EPA determines that the permitted

action is likely to jeopardize proposed species or adversely modify

proposed critical habitat, a conference will be initiated.

4. In consultations involving permits, any reasonable and prudent

measures (associated with an incidental take statement) will specify

the measures considered necessary or appropriate to minimize takings.

The Services will describe such measures. EPA may delegate the terms

and conditions of the incidental take statement to permittees. The

Services will rely on EPA to retain the responsibility to ensure the

terms and conditions are carried out. This approach will be reflected

in the Services' incidental take statements. Monitoring reports to

ensure implementation of reasonable and prudent measures and terms and

conditions will be made available to the Services by EPA in accordance

with the terms of the incidental take statement.

Reasonable and prudent measures and terms and conditions should be

developed in close coordination with the EPA to ensure that the

measures are reasonable, that they cause only minor changes to the

proposed action, and that they are within the legal authority and

jurisdiction of the Agency to carry out. If the Services and EPA cannot

reach agreement on appropriate reasonable and prudent measures or terms

and conditions at the level the consultation is being conducted, the

decision can be elevated by the procedures discussed in section V.A.

D. Watershed Planning

Whenever feasible and appropriate, the Services will participate

early on in watershed planning processes. The active participation of

the Services as a core stakeholder in the development of watershed or

basin plans should reduce or eliminate the need for, or facilitate,

consultation on EPA-issued permits and coordination on individual State

or Tribal NPDES permits and other site-specific actions that are

contemplated in watershed plans. Such participation should save the

States, Tribes, EPA and Services time and resources while improving

protection and recovery efforts for both listed and unlisted species.

X. Support in Administrative and Judicial Proceedings

The Services agree to provide support when requested by EPA in

defense of any requirements or actions adopted by EPA as a consequence

of reasonable and prudent alternatives, measures or conservation

recommendations rendered in biological opinions, or reasonable and

prudent measures provided in incidental take statements. Such support

in administrative and judicial proceedings will be subject to approval

by the Department of the Interior's Office of the Solicitor or NOAA

General Counsel's Office and EPA's General Counsel's Office.

XI. Revisions to Agreement

EPA and the Services may jointly revise this document.

XII. Reservation of Agency Positions

No party to this Agreement waives any administrative claims,

positions, or interpretations it may have with respect to the

applicability or the enforceability of the ESA or the CWA.

[[Page 2757]]

XIII. Obligation of Funds, Commitment of Resources

Nothing in this Agreement shall be construed as obligating any of

the parties to the expenditure of funds in excess of appropriations

authorized by law or otherwise commit any of the agencies to actions

for which it lacks statutory authority. It is understood that the level

of resources to be expended under this Agreement will be consistent

with the level of resources available to the agencies to support such

efforts.

XIV. Nature of Agreement

This memorandum is intended only to improve the internal management

of EPA and the Services and is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or

equity by a party against the United States, its agencies or

instrumentalities, its officers or employees, or any other person.

XV. Effective Date; Termination

This memorandum will become effective upon signature by each of the

parties hereto. Any of the parties may withdraw from this Agreement

upon 60 days' written notice to the other parties; provided that any

section 7 consultation covered by the terms of this Agreement that is

pending at the time notice of withdrawal is identified by the parties,

and those activities covered by this Agreement that begin the

consultation process prior to and within the 60-day notice period, will

continue to be covered by the terms of this Agreement.

XVI. Signatories [Reserved]

Note: It is anticipated the following individuals will sign the

final Agreement when it is executed: J. Charles Fox, Assistant

Administrator for Water, U.S. Environmental Protection Agency;

Donald J. Barry, Assistant Secretary for Fish and Wildlife and

Parks, U.S. Department of the Interior; Terry D. Garcia, Assistant

Secretary for Oceans and Atmosphere, U.S. Department of Commerce.

[FR Doc. 99-1029 Filed 1-14-99; 8:45 am]

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