823R02003
 Memorandum of Agreement Between the Environmental Protection Agency,
      Fish and Wildlife Service and National Marine Fisheries Service
                 Regarding Enhanced Coordination Under
              the Clean Water Act and Endangered Species Act

                           Preamble and Agreement

                              (EPA-823-R-02-003)
      This document is a reprint of the Federal Register notice that served to publish the
Memorandum of Agreement (MOA; February 22, 2001) and includes both the preamble from the
Federal Register notice as well as the MOA itself. The preamble comprises the first half (pages
iii through xvi) of this reprint, and the MOA makes up the second half (pages 1 through 24).
A detailed table of contents precedes each of the two components.

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                           CONTENTS OF PREAMBLE


AGENCIES  	iii

ACTION	iii

SUMMARY	iii

FOR FURTHER INFORMATION CONTACT 	iii

SUPPLEMENTARY INFORMATION	iii

I. Statutory Background  	iv

n. Overview of Public Comments  	vi

ffl. Summary of the Final MOA	  vii
     A. Interagency Coordination and Elevation 	  vii
     B. National Level Activities	ix
          1. Water Quality Standards Rulemaking 	ix
          2. Development of New Water Quality Criteria Methodological Guidelines 	ix
          3. National Consultations	 x
          4. Joint National Research Plan	  xii
     C. Oversight of State and Tribal Water Quality Standards	  xii
     D. State/Tribal Permitting Programs	xiii

IV. Conclusion 	xiv
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                                    PREAMBLE

AGENCIES: Environmental Protection Agency, Fish and Wildlife Service, Department of
Interior, and National Marine Fisheries Service, National Oceanic and Atmospheric
Administration
ACTION: Notice

SUMMARY: The Environmental Protection Agency, Fish and Wildlife Service and National
Marine Fisheries Service have signed a Memorandum of Agreement (MO A) addressing
interagency coordination under the Clean Water Act and Endangered Species Act.  This notice
discusses comments received on a draft of the MO A published by the Agencies on January 15,
1999, describes the changes we have made to the draft, and publishes the final MOA.

FOR FURTHER INFORMATION CONTACT: Brian Thompson, Standards and Health
Protection Division (4305T), U.S. EPA, Office of Science and Technology, 1200 Pennsylvania
Avenue NW, Washington, D.C. 20460, (202) 566-0382, thompson.brian@epamail.epa.gov;
Margaret Lorenz, Endangered Species Division, National Marine Fisheries Services, 1315 East
West Highway, Silver Spring, MD 20910, (301) 713-1401, margaret.lorenz@noaa.gov; or Mary
Henry, Division of Environmental Quality, Fish and Wildlife Service, 4401 N. Fairfax,
Arlington, VA 22203, (703) 358-2148, mary_henry@fws.gov.
SUPPLEMENTARY INFORMATION:
On January 15, 1999, the Environmental
Protection Agency (EPA), Fish and Wildlife
Service (FWS) and National Marine Fisheries
Service (NMFS) published for public
comment a draft Memorandum of Agreement
(MOA) addressing coordination under the
Clean Water Act (CWA) and Endangered
Species Act (ESA). 64 Fed. Reg. 2742.  We
have considered all the public comments
submitted on the draft MOA, made revisions,
and signed a final version of the document.
Today's notice discusses comments we
received on the draft MOA, summarizes the
changes we have made, and publishes the
final MOA.

The MOA is designed to enhance
coordination between our agencies so that we
can best carry out our responsibilities under
the CWA and ESA. hi recent years, we have
increasingly sought to integrate our programs.
For example, EPA now consults with the
Services under section 7 of the ESA on
EPA's promulgation and approval of water
quality standards under section 303(c) of the
CWA and approval of State National
Pollutant Discharge Elimination System
(NPDES) permitting programs under section
402(b).  The MOA seeks to enhance the
efficiency and effectiveness of consultations
on these actions in the future by providing
guidance to our regional and field offices and
establishing an elevation process to resolve
quickly issues that may arise. The MOA also
seeks to enhance coordination at the national
level by, among other things, establishing a
joint national research plan that will prioritize
research on the effects of water pollution on
endangered and threatened species. We
believe that the MOA will help make our
work together more productive and timely, to
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the benefit of endangered and threatened
species and the aquatic environment
generally, as well as the regulated community
and State and Tribal coregulators.

The provisions of the ESA, CWA and our
regulations described in the MOA contain
legally binding requirements. The MOA
itself does not alter, expand, or substitute for
those provisions  or regulations, nor is it a
regulation itself.  Thus, it does not impose
legally-binding requirements on EPA, States,1
Tribes2, or the regulated community. Rather,
the MOA contains internal procedural
guidance to our staff to assist us in carrying
out existing legal requirements. Based on
experience in implementing the MOA, we
may change the MOA in the future.

I.  Statutory Background

Section 7 of the ESA imposes substantive
and procedural obligations on Federal
agencies. Section 7(a)(l) 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, ensure that  any action
       1 For purposes of the MOA, "States"
mean States, Territories and Commonwealths
that qualify as States for the programs
covered by the Agreement.

       2 For purposes of the MOA, "Tribes"
means those Tribes that are authorized for
treatment as States for the programs covered
by the Agreement. See CWA 518(e).
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 conferencing 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)(l)(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
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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, hi 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 1 3 1 .

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
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

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not being administered in accordance with
the Act.
conservation of listed species.
II.  Overview of Public Comments

EPA and the Services received comments
from individuals, private industry,
environmental organizations and other
governmental agencies on the draft MOA.
We have not attempted below to summarize
or address the detailed contents of each of the
public comments. We have, however,
considered each of the comments  in
developing the final MOA. We address in
this notice the major themes and concerns
raised by the public comments.

Many commenters supported the MOA's goal
of fostering early input by the Services into
decision-making under the CWA  standards
and permitting programs.  These commenters
believed integrating the Services early into
existing regulatory processes would help
ensure species protection issues are addressed
effectively and in a timely manner. Many
commenters expressed concern, however,
that the MOA would increase burdens on
States and viewed the MOA as seeking to
shift EPA's section 7 consultation
responsibilities to States. Some commenters
supported our proposed plan to conduct
national programmatic consultations on water
quality criteria and permit oversight
procedures as likely to reduce the redundancy
of State-by-State consultation. Others
commenters believed that these
programmatic consultations would be
inappropriate and inconsistent with the
requirements of the ESA.  Finally, some
commenters believed that the MOA failed to
focus adequately on EPA's responsibility
under section 7(a)(l) of the ESA to utilize its
authorities to carry out programs for the
We continue to believe that early
involvement of the Services in CWA
activities is important to ensuring that species
protection concerns are addressed effectively
in the water quality standards and permitting
programs. The Services have substantial
expertise that can help improve decision-
making by EPA, States and Tribes.
Obtaining their expertise early in the
regulatory process helps ensure that their
views are meaningfully considered, and that
the broadest range of management options
are available to ensure the protection of
species.

This does not mean, however, that the MOA
calls for States and Tribes to "consult" with
the Services under section 7 of the ESA, or
that burdens in administering their programs
will be increased. The MOA cannot, and does
not, impose any requirements of section 7 on
States and Tribes. Those requirements apply
solely to Federal agencies, and EPA
continues to be responsible for fulfilling any
applicable requirements of section 7 in its
administration of^the CWA. (While States
and Tribes may choose to function as "non-
federal representatives" for purposes of
informal consultation pursuant to 50 C.F.R. §
402.18, the responsibility for compliance
with section 7 remains with EPA.)

Moreover, the MOA does not address in any
way the obligations of States and Tribes
under the CWA or the ESA, other than to
note in a few instances requirements of
existing laws  and regulations.  See, e.g.,
section IX.A.  paragraph 2 (noting
State/Tribal obligation under EPA CWA
regulations to provide copies of draft NPDES
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permits to the Services). Thus, while the
MOA should facilitate greater interaction
between the Services and States/Tribes, it
does not change the legal requirements that
States or Tribes must meet in adopting water
quality standards or in issuing NPDES
permits, and does not  require States or Tribes
to perform any information-gathering or other
analyses that would not be required under
existing legal requirements.  Rather, the
MOA is intended to enhance communication
between the Services,  EPA and States/Tribes
about how to ensure that water quality
standards and NPDES permits will protect
endangered and threatened species, hi
response to comments that the national
consultations are inappropriate or
inconsistent with the ESA, we will conduct
the consultations in accordance with all
applicable requirements of the ESA and 50
C.F.R. Part 402.

Finally, we agree with the comment that the
MOA should put greater emphasis on the
development of programs by EPA, in
consultation with the Services, for the
conservation of listed  species under section
7(a)(l) of the ESA.  The CWA is a powerful
vehicle  for improving  the quality of the
aquatic  environment on which many
endangered and threatened species depend.
EPA's mission under the CWA includes
reducing the risks to aquatic life and wildlife
due to water quality degradation. Reducing
those risks can also help facilitate the
recovery of listed species. While the MOA
will help ensure that EPA actions meet the
substantive requirements of section 7(a)(2) of
the ESA, we believe the MOA should also
help identify affirmative steps under section
7(a)(l) of the ESA that EPA can take
pursuant to its CWA authorities to facilitate
the recovery of listed species. We have made
 appropriate additions to the MOA in this
 respect, which are noted in the discussion
 below.

 III. Summary of the Final MOA

 We have retained in the final MOA the
 following basic components of the January
 1999 draft MOA: (1) interagency
 coordination and elevation; (2) national level
 activities; (3) oversight of State and Tribal
 water quality standards; (4) State and Tribal
 NPDES permitting programs. Each of these
 is addressed below.

 A. Interagencv Coordination and Elevation

 One of the most important objectives of the
 MOA is to institutionalize strong working
 relationships among our regional and field
 offices who have day-to-day responsibility
 for administering our programs. Ongoing
 planning and collaboration at the
 regional/field level are essential to carrying
 out our programs effectively. Therefore, the
 MOA directs our staff to establish
 local/regional review teams that will meet
 periodically to identify upcoming priorities
 and workload requirements and generally
 ensure close coordination on the full range  of
 activities involving water quality and
 endangered/threatened species protection.
 These teams will also develop procedures for
working with States and Tribes on these
matters. We have added language to the
MOA stating that the regional review teams
should also provide assistance to the
interagency oversight panel in conducting a
proactive conservation review that will
identify ways in which EPA can more fully
utilize its authorities for the conservation of
listed species.
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We also believe that effective coordination
among senior managers at the regional level
is vital to maintaining effective working
relationships. Therefore, in addition to
directing regional staff and day-to-day
managers to meet on a regular basis through
the regional review teams, we have added to
the MOA a directive that EPA and Service
regional senior managers (e.g., Regional
Administrator or Division Director from
EPA, Regional Director or Assistant
Regional Director from the FWS , Assistant
Regional Administrator for NMFS) meet at
least annually to review on a programmatic
basis ongoing work between our agencies.
These meetings will focus on establishing
overall priorities, assessing resource needs
and providing direction to mid-level
managers and staff.

The draft MOA also included a procedure for
elevating issues that may arise among our
regional and field offices. We have included
the elevation procedure in the final MOA
with certain revisions. First, one commenter
believed that the proposed elevation process
applied only to disagreements that may arise
in formal section 7 consultations, and
requested clarification of the scope of issues
addressed by the elevation procedure.  We
did not intend to use the elevation process
solely for issues arising in formal section 7
consultations. It is available to resolve
disagreements arising in formal  or informal
consultations, or other areas of cooperation,
such as EPA oversight of State/Tribal
NPDES permits. Moreover, because the
elevation procedure is generic, we intend to
make it available for any issues arising with
regard to section 7 consultations on EPA
actions under the CWA in areas not
specifically addressed by the MOA. The
purpose of the elevation procedure is to help
us reach informed and timely decisions, and
making this procedure available whenever we
are engaged in the section 7 process with
regard to EPA actions under the CWA will
help achieve this objective. The procedures
may be used to review matters such as the
content  or supporting analyses of biological
evaluations prepared by EPA or biological
opinions prepared by the Services.  However,
the elevation process does not impair in any
way the ultimate authority of EPA or the
Services to issue decisions or render
determinations that are within each agency's
authority under the CWA and the ESA.

Also, to make the elevation process more
workable, we have reduced the number of
steps involved in the elevation at the regional
level. In the final MOA, the first step in any
elevation will be to raise an issue to our
regional directors/administrators, rather than
requiring an intermediate step of elevating
the issue to mid-level managers. This
revision recognizes that mid-level managers
are typically involved in issues on an ongoing
basis, and that these managers should seek to
resolve issues informally if possible.  By
eliminating a step in the elevation process,
the final MOA will also help speed resolution
of issues should elevation be necessary.
Much of the MOA is designed, however, to
enhance early and ongoing collaboration
among our agencies. We continue to believe
that issues should be resolved at the lowest
levels possible, and  enhanced coordination
should reduce the likelihood that elevation
will be needed.

Some commenters suggested that the results
of decisions in an elevation be documented
so that they could serve as guidance in other
similar circumstances.  The agencies will
memorialize the results of the elevation in
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writing where determined to be appropriate
(e.g., where the results of the elevation would
provide useful guidance to agency staff).

We have also retained in the final MOA an
oversight panel that will consist of regional
and headquarters personnel to provide
oversight and coordination on all aspects of
the agreement.  In addition, we have amended
the draft MOA to specify that the oversight
panel, with input from the regional review
teams will conduct a "proactive conservation
review" (see section V(A)(3)(7)) under
section 7(a)(l) of the ESA regarding EPA's
authorities and identify ways that EPA can
more fully utilize those authorities to carry
out programs for the conservation of listed
species.

B. National Level Activities

The draft MOA included four national level
activities to help better integrate our
programs: (1) a water quality standards
rulemaking; (2) development of new water
quality criteria methodological guidelines; (3)
national consultations on EPA's section
304(a) aquatic life water quality criteria
recommendations and on procedures to
ensure State/Tribal NPDES permits protect
listed species, and (4) a joint national
research and data gathering plan. The final
MOA retains these components basically as
contained in the draft MOA, with some
changes, in particular with regard to the
national consultations, and those changes, as
well as relevant public comments, are
discussed below.

1. Water Quality Standards Rulemaking.
The draft MOA indicated that EPA would
propose to amend EPA's water quality
standards regulations to provide that water
quality shall be not likely to jeopardize the
continued existence of a listed species. We
stated that such a rule would essentially
codify existing protection for endangered and
threatened species under the CWA since
water quality that is so poor it would likely
jeopardize a listed species or destroy or
adversely modify critical habitat fails to meet
the fundamental requirements of the CWA.

Several commenters believed that this rule
would be inconsistent with the CWA because
it would remove the flexibility of States and
Tribes under section 303(c)(2)(A) to establish
use designations based on the uses that are
attainable in the waterbody. EPA and the
Services do not believe that flexibility will be
removed from the States and Tribes to change
use designations with use attainability
analyses. Any changes in use designations
must comply with the long-standing
requirements in 40 CFR 131.  Further, any
changes in use designations must be
approved by EPA under Section 303(c) of the
CWA. These approvals are subject to the
requirements of section 7 of the ESA. With
the early coordination envisioned by the
Services and EPA to address listed species
needs during triennial reviews, more species-
specific and site specific information and
expertise will complement defensible use
attainability analyses performed by the States
and Tribes. Justifiable changes can be still
made after taking into account the needs  of
listed species.

2. Development of New Water Quality
Criteria Methodological Guidelines. The
final MOA provides that the Services will
participate in EPA's development of new
methodological guidelines for the
development of aquatic life criteria under
section 304(a) of the CWA. We received no
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significant comments on this provision,
which is unchanged from the January 1999
draft MO A.

3. National Consultations.  The draft MO A
described national consultations that EPA
and the Services intended to undertake
regarding EPA's water quality criteria for the
protection of aquatic life that EPA has
published under section 304(a) of the CWA,
and on procedures in the MOA to ensure that
State/Tribal NPDES permits will protect
listed species.  As discussed further below,
we have decided to delete the provision for a
national permits consultation from the MOA,
and have modified in certain respects the
discussion of the national criteria
consultation.

With regard to the national permits
consultation some commenters questioned
whether the granting of an exemption from
incidental take prohibitions would be
appropriate through an incidental take
statement issued at the national level without
consideration of site-specific circumstances.
Other commenters were unclear as to the
effect that such a consultation would have on
existing state NPDES programs, and were
concerned that the agencies not "reopen"
those programs through the national
consultation.

We have considered these comments and
have had further interagency discussions of
the merits of this programmatic consultation
on the permitting procedures.  We have
decided to delete the discussion of that
consultation from the final  MOA and, at this
time, do not intend to undertake such a
consultation on permitting procedures.  Our
decision not to conduct a national
programmatic consultation does not affect
our commitment to follow the procedures in
section IX of the MOA for coordination with
regard to oversight of State/Tribal NPDES
permits.  Those procedures are designed to
share information that will assist permitting
authorities in meeting CWA requirements,
including the protection of listed species.
They describe those circumstances where
EPA would use its oversight authorities to
ensure these requirements and objectives are
met.

EPA's current practice is to  consult with the
Services where EPA determines that approval
of a State's or Tribe's application to
administer the NPDES program may affect
federally listed species. We will continue to
conduct such consultations on a case-by-case
basis. Where formal consultation is
undertaken, a biological opinion issued by the
Service(s) would include an incidental take
statement in accordance with section 7 of the
ESA and 50 CFR Part 402.  In addition, as
discussed elsewhere in today's notice and in
the  final MOA,  EPA consults with the
Services regarding its approval of new and
revised water quality standards that may
affect listed species, and any biological
opinion issued as a result of such a
consultation would include an incidental take
statement in accordance with section 7 of the
ESA and 50 CFR Part 402.

With regard to the national criteria
consultations, States generally supported our
undertaking such consultations as it would
streamline the water quality standards
adoption and approval process at the State
level, and avoid duplication of effort
involved in consulting on a State-by-State
basis. Other commenters stated that EPA
should not consult on the section 304(a)
criteria because they are not an agency

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"action" under section 7.  Still others
believed that national consultations on
aquatic life criteria would not be based on the
"best available information" as required by
section 7 of the ESA. EPA and the Services
have agreed, however, that it is appropriate to
conduct these consultations pursuant to
section 7(a)(2) for 304(a) aquatic life criteria
to ensure the protection of listed species.
Moreover, we fully intend to base
consultations on the "best available
information," as required by section 7, and do
not believe that this requirement precludes us
from conducting the consultations on a
national basis.

Some commenters contended that we should
not consult on existing aquatic life criteria,
since they are based on old methodologies
and that EPA should consult instead only on
new criteria. We believe that consulting on
EPA's existing section 304(a) aquatic life
criteria is warranted because these criteria
have been adopted by many States in their
water quality standards, and this consultation
will assist us in determining whether these
criteria are protective of endangered and
threatened species. EPA will consider the
results of the consultation in deciding
whether more stringent criteria would be
warranted to protect certain endangered or
threatened species. EPA also intends to
integrate the national consultation process
with ongoing revisions to existing criteria
that are underway, as well the development of
new criteria.

Commenters raised the additional concern
that a national consultation was likely to lead
to the development of overly stringent water
quality criteria and that consultations should,
therefore, continue to take place on a State
level. We disagree, since EPA would revise
the criteria if it determines that more
stringent criteria were in fact needed to
protect endangered and threatened species,
regardless of whether the consultation
occurred on a national or State/Tribal level.
Moreover, revisions to the criteria guidance
could be targeted to the waters within the
geographic range of species of concern (e.g.,
through recommendations to adopt site-
specific criteria).  In this way, other waters
not needing the additional level of protection
would not be affected by the revisions.

Other commenters raised the question
whether, under section 7(d) of the ESA, EPA
and States could continue to implement
existing CWA requirements while the
national consultations are ongoing. Section
7(d) prohibits federal agencies and a permit
or license applicant, after initiation of
consultation, from making an irretrievable or
irrevocable commitment of resources that
would preclude the formulation or
implementation of alternatives identified in
the consultation required to meet the
requirements of section 7(a)(2) of the ESA.
We disagree that the initiation of the national
consultations on criteria would limit the
ability of EPA, States or Tribes to continue
implementing existing requirements under
the CWA. The water quality criteria
guidance does not involve any irretrievable or
irrevocable commitment of resources.  The
criteria guidance can, and will, be revised if
as a result of the consultations a
determination is made that revisions are
necessary to comply with section 7(a)(2) of
the ESA. Moreover, if in the future EPA
proposes to undertake an action that is
covered by the national consultations prior to
the conclusion of these consultations (e.g.,
approval or promulgation of an aquatic life
criteria identical to or more stringent than
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EPA's guidance value), EPA will make a
determination of compliance with section
7(d) at that time based on the particular facts,
recognizing that EPA retains the authority to
require revisions to water quality and
standards, and promulgate them if necessary.
Finally, the aquatic life criteria guidance is
fundamentally designed to ensure protection
of the aquatic environment and we do not
believe that section 7(d) of the ESA would
impede their implementation pending
completion of consultation.

Since the draft of the MOA was published in
January 1999, EPA and the Services have
undertaken a series of meetings that have
resulted in a broad agreement on the
scientific and technical procedures for
conducting the consultations.  These
meetings have led to  a realistic assessment of
the resources  and time necessary to conduct
the consultation, and to an understanding that
the consultation should be phased and that
priorities should be set to deal with the most
important pollutants and issues first. As a
result, the final MOA states that the
consultation will be completed in an
expedited manner, rather than the less
flexible strict timetable of eighteen months
contained in the draft MOA.

4. Joint National Research Plan. The final
MOA retains the draft MOA's provisions for
the Agencies to establish a joint national
research and data gathering plan for
prioritizing and funding research on the effect
of water pollution on listed species. We
received no significant comments on this
portion of the MOA,  which is unchanged
from the 1999 draft.

C. Oversight of State and Tribal Water
Quality Standards
We did not receive extensive comments on
the provisions in the MOA related to
oversight of State/Tribal water quality
standards. Some commenters contended that
EPA approval of water quality standards is
not subject to section 7 of the ESA because
EPA approval is non-discretionary. EPA
disagrees, since our decision as to whether a
particular standard meets the requirements of
the CWA involves the exercise of
considerable judgment. We believe that
where approval of new or revised standards
may have an effect on a listed species or
designated critical habitat, consultation under
section 7(a)(2) is required. Other
commenters argued that EPA should consult
not only on new and revised standards, but
also on existing water quality standards.
EPA and the Services have agreed that where
information indicates an existing standard is
not adequate to avoid jeopardizing listed
species, or destroying or adversely modifying
designated critical habitat, EPA will work
with the State/Tribe to obtain revisions in the
standard or, if necessary, revise the standards
through the promulgation of federal water
quality standards under section 303(c)(4)(B)
of the CWA.  Some commenters  said that it
is not appropriate for EPA to compel a State
to reopen an existing water quality standard
to avoid "jeopardy" because that threshold is
not contained in the CWA, and nothing in the
CWA requires that water quality be improved
whenever doing so would benefit listed
species. Again, water-dependent endangered
and threatened species are an important
component of the aquatic environment that
the CWA is designed to protect, and steps to
ensure the protection of those species are well
within the scope of the CWA.

After consideration of public comments on
this aspect of the MOA, we have  decided to
retain the language of the 1999 draft MOA
                                           xn

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with no major substantive changes.

D. State/Tribal Permitting Programs

The final MOA addresses the procedures that
we will follow in overseeing the operation of
State/Tribal NPDES permits to ensure that
listed species and critical habitats are
protected. Several commenters raised
concerns that the coordination process
described in the MOA was equivalent to the
section 7 consultation process.  This is
incorrect. Section 7 consultations are
governed by the specific procedures
contained in 50 C.F.R Part 402. The
coordination procedures in the MOA do not
track the consultation process.  Rather, the
coordination procedures simply outline the
interaction that we envision between EPA,
the Services and the State/Tribe should a
particular permit raise issues of concern for
listed species. The MOA also makes clear
that EPA's oversight of State/Tribal permits
will continue  to be governed by EPA's CWA
authorities. For example, EPA may only
object to a permit that is "outside the
guidelines and requirements" of the CWA as
provided in section 402(d) of the CWA. We
are confident  that EPA's CWA authorities are
sufficiently broad and the MOA sufficiently
flexible to address the broad range of
situations that arise in the NPDES program.

Some commenters expressed concerns that
the permit coordination procedures not be
used to "force" States and Tribes to undertake
activities not otherwise required by the CWA.
As stated previously, the MOA only provides
internal procedural guidance for EPA and the
Services and does not impose any
requirements on States and Tribes. States
and Tribes are specifically directed by current
EPA regulations under the CWA to provide
the Services with copies of draft NPDES
permits, and they must consider and respond
to any significant comments by any party,
including comments provided by the
Services.  See 40 C.F.R. §§ 124.10(c)(iv) and
(e); 124.11; 124.17. See also 40 C.F.R. §
124.59(b) and (c) (addressing consideration
of Service comments and coordination
between the permitting authority and the
Services). The MOA does not augment these
existing obligations, but is intended to
facilitate the delivery of comments by the
Services and EPA to States and Tribes, and
the consideration of those comments in the
permitting process.

One commenter argued that the MOA was
inconsistent with the decision in AFPA v.
EPA 137 F.3d 291 (5th Cir. 1998) because,
while it does not place conditions on
approval of State NPDES programs, it
nonetheless places conditions on "approval"
of State permits.  This contention is incorrect.
First, EPA does not "approve"  State/Tribal
permits, but rather retains discretionary
authority to comment upon and object to
permits on a case-by-case basis. The MOA
does not change the criteria under which EPA
currently exercises that authority — i.e.,
whether a permit meets applicable CWA
requirements -- but simply ensures that EPA
has the full benefit of the Services' views on
potential impacts to Federally listed species
and designated critical habitats in
determining whether CWA requirements are
met.

Several commenters expressed concern that
the permit coordination procedures did not
recognize the importance of keeping
permittees involved in the decision-making
process. We believe that the permitting
authority should always maintain open
communication with permittees to ensure that
they are apprised of, and can provide input
                                          Xlll

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on, decisions that affect them. We have,
therefore, added a clause in the permit
coordination procedures stating that EPA will
encourage the permitting authority to
facilitate the involvement of permittees and
permit applicants in this process.

In addition, the draft MOA referred to
potential "adverse effects" to listed species in
the permit coordination procedures.  We were
concerned that the use of this wording, which
is an ESA term under section 7, could have
been read as suggesting that the section 7
process was being followed with regard to
State/Tribal permits, where in fact the MOA
establishes a coordination procedure to
ensure protection of listed species.  To avoid
any confusion, we have used the words "more
than minor detrimental effects" in place of
"adverse effects." Our intent remains to
work together and with State/Tribal
permitting authorities to ensure that concerns
about the impacts of State/Tribal permits on
listed species are addressed in the permitting
process. As discussed elsewhere, the MOA
also helps ensure in a variety of ways that
water quality standards adopted by States and
Tribes are protective of listed species, and
implementation of such standards (i.e.,
standards that have undergone Section 7
consultation) through NPDES permits will
help reduce any negative effects of discharges
on listed species.
IV. Conclusion

We are confident that implementation of the
final MOA will improve the effectiveness of
our efforts to protect water quality and
conserve endangered and threatened species.
The ESA and the CWA contain powerful
tools that, when integrated effectively, will
advance the objectives of both Acts, and the
MOA will help us achieve those goals.

[Signed!	          1/10/01
J. Charles Fox               Date
Assistant Administrator for Water
U.S. Environmental Protection Agency
rSienedl
1/17/01
Date
Jamie Rappaport Clark
Director
U.S. Fish and Wildlife Service
[Signed!	          1/18/01
Penelope D. Dalton          Date
Assistant Administrator for Fisheries
National Oceanic and Atmospheric
Administration
                                           xiv

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                 CONTENTS OF MEMORANDUM OF AGREEMENT


I. Purpose	1

n. Goals and Objectives	1

III. Guiding Principles	2

IV. Authorities	2
       A. Fish and Wildlife Service and National Marine Fisheries Service Authorities  	2
       B. Environmental Protection Agency Authorities	2
       C. Reservation of Authorities  	2

V. Provisions and Understandings	2
       A. Procedures to Facilitate Interagency Cooperation	2
              1. Local/Regional Coordinating Teams 	3
              2. Interagency Elevation Process  	3
              3. Oversight Panel  	5
              4. Sub-Agreements	5
              5. Guidance/Training  	5
       B. Summary—Section 7 Consultation Process	6
              1. Scope  	6
              2. Data and Information Requirements	6
              3. Information Sharing	6
              4. Effects of an Action	6
              5. Biological Evaluation	6
              6. Timeliness of Actions	7
              7. EPA Responsibility at the Conclusion of Section 7 Consultation	8
              8. Reinitiation of Formal Consultation	8
       C. Proposed Species and Proposed Critical Habitat 	8
       D. Recovery Program	8
              1. Conservation Recommendations to Assist Recovery	9
              2. Recovery Planning	9
              3. Recovery Implementation	9
       E. Candidate Conservation Activities 	10

VI. National Level Activities to Ensure Protection of Species 	10
       A. National Rule-making	10
       B. Development of New Water Quality Criteria Methodological Guidelines	10
       C. National Consultation on CWA Section 304(a) Aquatic Life Criteria	11
              1. Overview  	11
              2. Procedures for Consultations . . ,	12
                                         xv

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YE. Joint National Research and Data Gathering Plan and Priorities	13
       A. Existing and New Water Quality Criteria	13
       B. Work Group Report to Agreement Signatories	14
       C. National Research and Data Gathering Plan	14

VIII. Consultation on Water Quality Standards Actions	14
       A. Development of New or Revised State or Tribal Water Quality Standards	14
              1. Scoping of Issues To Be Considered During the Triennial Review Process
                     	15
              2. Development of State or Tribal Standards	15
              3. Adoption and Submittal of State or Tribal Standards 	15
              4. EPA Develops Biological Evaluation   	16
              5. EPA Determination of "No Effect," "May Affect," and "Likely to Adversely
                    Affect"	16
              6. Services' Review of "Not Likely to Adversely Affect" Determination	16
              7. Formal Consultation	17
              8. EPA Action on State or Tribal Standards	19
       B. Existing Water Quality Standards	19
       C. Consultation on EPA Promulgation of State or Tribal Water Quality Standards .... 19

IX. Permitting Program Activities	19
       A. Coordination Procedures Regarding Issuance of State or Tribal Permits	19
       B. Issuance of EPA Permits	21
       C. Watershed Planning	22

X. Support in Administrative and Judicial Proceedings  	23

XL Revisions to Agreement	23

XJJ. Reservation of Agency Positions  	23

XHJ. Obligation of Funds, Commitment of Resources 	23

XTV. Nature of Agreement	23

XV. Effective Date; Termination	23

XVI. Signatures	24
                                         xvi

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    Memorandum of Agreement Between the Environmental Protection Agency,
          Fish and Wildlife Service and National Marine Fisheries Service
                      Regarding Enhanced Coordination Under
                  the Clean Water Act and Endangered Species Act
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, and "Tribes" refers to Tribes that
qualify for treatment in the same manner as
States under section 518 of the CWA.

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.

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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 affirm 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
addresses EPA's and the Services'
responsibilities under section 7 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
(16U.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,
33U.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

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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.

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 twice 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; and
how to identify, in cooperation with States
and Tribes, the available information for
evaluating effects of permitted discharges on
species;
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;

g. Identify ways to reduce the impacts of
proposed agency actions on endangered and
threatened species; and

h. Assist the oversight panel in conducting a
programmatic review of EPA's authorities
and identifying ways that EPA can more fully
utilize those authorities to carry out programs
for the conservation of listed species.

Each of these local/regional coordinating
teams will 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

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the agencies arising with regard to the
activities addressed by this agreement,
including formal or informal section 7
consultations, as well as disagreements
arising in section 7 consultations on EPA
actions under the CWA that are not
specifically addressed by this agreement.  The
procedures may be used to review matters
such as the content of biological evaluations
or supporting analyses prepared by EPA or
biological opinions prepared by the Services.
However, the elevation process does not
impair in any way the ultimate authority of
EPA or the Services to issue decisions or
render determinations that are within each
agency's authority under the CWA and the
ESA. 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. 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 and field unit line officers or staff
supervisors, (i.e., for NMFS, branch/division
chiefs; for EPA, branch chiefs; and for FWS,
field office supervisors).  The overall goal is
to design actions to avoid and/or 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 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 1 teams,
or sooner as necessary to meet mandatory
deadlines, and serve as key advisors on policy
and process. The Level 2 team (i.e., the
regional executives) may confer with field
unit line officers or staff supervisors (e.g., for
NMFS, branch/division chiefs; for EPA,
branch chiefs; and for FWS, field office
supervisors) in making any decisions on the
elevation. If issues are not resolved by the
Level 2 team, the issue will be elevated for
Headquarters Review.

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c. 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. These officials 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. Where determined to
be appropriate (e.g., where the results of the
elevation would provide useful guidance to
agency staff), the decision on the elevation
should be memorialized in writing and
circulated among Agency staff to serve as
guidance for  future decisions. Assistant
Secretary(s) and  Assistant Administrator
shall resolve  any issues within 21 days of
elevation. The authority to render any
decision that  is subject to elevation rests
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;

 (6) Reviewing and evaluating, at least on an
 annual basis, the Agreement and its
 implementation by the three agencies; and

 (7) As soon as is practicable and no later than
 one year after  signature of the MO A,
 conducting a proactive conservation review
 pursuant to section 7(a)(l) of the ESA which
 will address EPA's authorities under the
 CWA for carrying out programs for the
 conservation of listed species.

 4. Sub-Agreements

 Regional and field level Federal
 sub-agreements further implementing this
 Agreement may be executed by 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 staffs understanding and

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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. EPA will
send the list of species and habitat to States
and Tribes. 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 Services'
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

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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.  When preparing
biological evaluations, EPA will use as
guidance the information requirement
described at 50 CFR 402.14(c) (initiation of
consultation).

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. Therefore, EPA will
 discuss, as appropriate, the form and nature
 of the biological evaluation with the Services
 to ensure that the biological evaluation
 contains adequate information for evaluating
 the effects of the proposed action.

 6. Timeliness of Actions

 hi 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 Services in
writing. The Services will respond in writing
within 30 days of receipt of such a

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determination, unless extended by mutual
agreement. The response will state whether
the Services concur or do not concur with
EPA's determination. If the Services do 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 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, hi 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.  Where EPA prepares a
biological evaluation, EPA will attempt to
provide the Services a biological evaluation
at least 90 days before reaching a decision on
a proposed action.
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)(l) 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

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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(a)(2) 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, under the authority
provided in section 7(a)(l), 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, to help implement recovery plans or
to develop information.) 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

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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
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 be
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 provide that
mixing zones shall be not likely to cause
jeopardy, 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.

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
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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 also conducted consultation with
 the Services regarding aquatic life criteria
 promulgated by EPA for toxic pollutants for
 certain waters in California.  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.  National
 304(a) consultations will ensure a consistent
 approach to  evaluating the effects of
pollutants on species and identifying
measures that may be needed to better protect
them. National consultations will also ensure
better consideration of effects on species
whose ranges cross State boundaries.  •
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2. Procedures for Consultations

The consultations 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
consultations will follow the basic approach
described below. The agencies will endeavor
to streamline their processes to complete
these consultations in an expedited manner.

EPA and the Services anticipate that the
national consultations will focus on aquatic
and aquatic-dependent species. The
consultations will be conducted on a national
basis, and therefore, will not be
waterbody-specific. In addition, given the
numbers of species involved in the
consultations, 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
consultations. 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 incidental take, if anticipated, 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 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.
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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 criteria consultations 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 consultations on the aquatic life
criteria published by EPA.

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
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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 other
Federal agencies as appropriate.

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 notifying the
appropriate Service(s) in writing, designate a
State or Tribe to serve as a non-Federal
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 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, hi 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 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
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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. The
Services and EPA 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.

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," "May
Affect," and "Likely to Adversely 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 Services 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 destroyed or 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 EP A'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 Services cannot
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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

Where EPA intends to request formal
consultation, EPA will attempt to do so at
least 45 days prior to the State's or Tribe's
expected submission of water quality
standards to EPA. 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 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)).  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.

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 Services.

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
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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 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 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 Services,
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 reasonable and prudent measure
in an incidental take statement.

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 Services
of its final decision on the action.

Some possible ideas for development of
specific reasonable and prudent alternatives
are:

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.
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8. EPA Action on State or Tribal Standards

After reviewing the biological opinion, EPA
will inform the Services 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 rule-making
process and EPA will comply with the
consultation requirements of section 7 of the
ES A 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 review of
permits issued by States or Tribes with
approved permitting programs, and (2) EPA
issuance of permits under section 402 of the
CWA.

A. 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 among other things, 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
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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
regulations to provide notice and copies of
draft permits to the Services. See 40 CFR
124.10(c)(l)(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 Services or EPA are concerned that
an NPDES permit is likely to have a more
than minor detrimental effect 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 Services 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 Services 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 more than minor detrimental
effect on Federally-listed species or critical
habitat.

For those NPDES permits  with detrimental
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
detrimental effects stemming from the
permit. For those NPDES permits that have
detrimental effects on Federally-listed species
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or critical habitat that are more than minor,
including circumstances where the discharge
fails to ensure the protection and propagation
offish, 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
detrimental 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, 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 detrimental effect 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
(see40CFR123.24(e)(l)).

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 a more than minor detrimental 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 have more
than minor detrimental effects
Federally-listed species or critical habitat.

9. EPA will encourage the State or Tribe to
facilitate the involvement of permittees
or permit applicants in this process.

B. 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) and 50 CFR part 402 on the
issuance of individual and general NPDES
permits. 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.
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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. 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 or is likely to
jeopardize the continued existence of a
species proposed for listing or result in the
destruction or adverse modification of
proposed designated critical habitat.

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. hi 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.

5. EPA will facilitate the involvement of
permittees or permit applicants in this
process.

C. 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
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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.
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.
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XVI. Signatures

[Signed!	         1/10/01
J. Charles Fox       Date
Assistant Administrator for Water
U.S. Environmental Protection Agency

rSienedl	         1/17/01
Jamie Rappaport Clark      Date
Director
U.S. Fish and Wildlife Service

[Signed!	         1/18/01
Penelope D. Dalton         Date
Assistant Administrator for Fisheries
National Oceanic and Atmospheric
Administration
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