United States Office of Water
Environmental Protection Agency 4305
EPA-823-F-01-002
January 2001
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
EPA
823-
F-
01-002
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
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US.
M
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CONTENTS
CONTENTS
I. Purpose [[[ 1
II. Goals and Objectives [[[ 1
III. Guiding Principles [[[ 1
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. Recover}' Planning ............................................... 9
3. Recovery Implementation ......................................... 9
E. Candidate Conservation Activities ........................................ 9
VI. National Level Activities to Ensure Protection of Species .......................... 10
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VII. 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
D. Consultation on State and Tribal Water Quality Standards 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 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 18
B. Existing Water Quality Standards 18
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
XI. Revisions to Agreement 23
XII. Reservation of Agency Positions 23
XIII. Obligation of Funds. Commitment of Resources 23
XIV. Nature of Agreement 23
XV. Effective Date; Termination 23
XVI. Signatures 23
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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 recover,' 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
Sen ice (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 CW7A/ESA
actions and resolving any potential conflicts or
disagreements through a structured
time-sensitive process at the lowest possible
level within the agencies.
III. Guiding Principles
The ESA sets forth the goal of protecting and
recovering threatened and endangered species
and the ecosystems upon which they depend.
It places responsibility on all Federal agencies.
including EPA and the Services, to meet that
goal. The Clean Water Act (CWA) sets forth a
goal of restoring and maintaining the
chemical, physical and biological integrity of
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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 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
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coordination and elevation procedures
described below.
appropriate for local or regional
accomplishment;
1. Local/Regional Coordinating Teams f. Identify training needs;
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
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
identify ing 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-Federa! stakeholders whose actions and
interests may impact the CWA/ESA issues.
2. Interagency Elevation Process
The following procedures shall be utilized to
elevate any conflict or disagreement between
the agencies arising with regard to the
activities addressed by this agreement,
including formal or informal section 7
consultations, as well as disagreements arising
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in section 7 consultations on EPA actions
under the C WA 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, wrhere 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.I.
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.
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
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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 regulator}7 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 MOAT
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
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.
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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
effects1" 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
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
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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 i;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
In informal and formal consultation, EPA and
the Services agree to adhere to time frames set
forth in 50 CFR part 402 and supplemental
guidance provided in this Agreement, in order
to enable EPA to meet statutory and regulatory
deadlines under the CWA. EPA will strive to
provide advance notice to the Services
concerning anticipated consultations, to
provide thorough biological evaluations, to
comment promptly on draft opinions and to
provide, where appropriate, additional
available information requested by the
Services.
If during informal consultation EPA
determines that the action is not likely to
adversely affect listed species or critical
habitat, then EPA will notify the Services in
writing. The Services will respond in writing
within 30 days of receipt of such a
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.
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the perceived adverse effects, supporting
information, and a basic rationale.
jeopardy opinion is issued, EPA will notify the
Services of its final decision on the action.
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 Sen. ices and
EPA agree to extend the consultation period.
The timing of activities during consultation
may be further expedited as necessary taking
into account legal deadlines for EPA action
and the agencies' programmatic needs. EPA.
where appropriate, will enter into early
consultation with the Services in order to
ensure that EPA meets its statutory CWA
deadlines for decision-making. In addition.
EPA and the Services agree to make even'
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
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 Sendees using the procedures
under 50 CFR 402.10. The Sendees 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 consenration and
recover}' of threatened and endangered
species. Section 7 consultation and the
recover}' planning and implementation process
are two primary mechanisms that EPA can use
as guides to identify" actions that EPA or the
Senices believe are needed to protect and
recover Federally-listed species.
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I. 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 Asencv 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 Recover) 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 recover}' tasks, and actively solicit
EPA's involvement during all phases of
recoven 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 recover}' effort.
3. Recover}' Implementation
EPA and the Services will hold recovery
planning/implementation discussions or
meetings, on at least an annual basis. The
members of this group and the geographic area
covered by this group will vary among
Regions, depending on the geographic range
and number of species impacted by water
quality. The meetings could be organized on a
watershed or ecosystem basis and involve
field and/'or Regional personnel. These groups
will discuss current and upcoming water
quality/listed species related activities, and
provide input for prioritizing watersheds (e.g..
the number of listed species, the seriousness of
threats, and the opportunities for
conservation/recovery success) for potential
future coordinated activities.
E. Candidate Conservation Activities
The Services and EPA will develop watershed
and ecosystem based initiatives to identify and
remove those conditions that may lead to
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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
pan 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 :o 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 section 304(a),
and will designate technical experts to provide
the Services' views during the peer review-
process.
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C. National Consultation on CWA Section
304(a) Aquatic Life Criteria
the relative priorities of revising existing
criteria and developing new 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
131.1 l(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
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 me 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.
The national consultation will provide section
7 coverage for any water quality criteria
included in State or Tribal water quality
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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 C\VA 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 identify7 the highest
priority areas for the development of new-
national 304(a) water quality criteria to protect
listed species. The work group will take into
account new criteria development needs
identified in consultations on State and Tribal
water quality standards including, in
particular, the priority to be given to the
development of wildlife criteria for areas
where such criteria have not been developed
(i.e.. outside the Great Lakes Basin).
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Washington DC 20460
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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 me 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.
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.
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.
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
representative to conduct informal
consultation in accordance with 50 CFR
402.08.
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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 Sendees and EPA
recognize that to accomplish timely
implementation of standards that may affect
Federally-listed species and designated critical
habitat, early involvement and technical
assistance by the Services is needed. In an
effort to facilitate collaboration and the
consultation process, EPA regional offices
will provide the Services annually with a list
of all upcoming scheduled triennial reviews
for the next 5-year period.
The Services will participate in a meeting with
EPA and the State or Tribe to discuss the
extent of an upcoming review. EPA will take
the lead to schedule the meeting near the start
of the triennial review process.
2. Development of State or Tribal Standards
EPA will seek the technical assistance and
comments of the Services during a State's or
Tribe's development of water quality standards
and related policies. The Services will provide
the States or Tribes and EPA with information
on Federally-listed species, proposed species
and proposed critical habitat, and designated
critical habitat in the State or on Tribal lands.
EPA will provide assistance to the Services in
obtaining descriptions of pollutants and causes
of water quality problems within a watershed
or ecosystem. The Services will work
cooperatively with the States or Tribes to
identify any concerns the Services may have
and how to address those concerns. EPA will
request the Services to review and comment
on draft standards, and to participate in
meetings with States or Tribes as appropriate.
EPA will indicate which of these requests are
of high priority, and the Services will make
every effort to be responsive to these requests.
Where appropriate, EPA and the Services will
encourage the State or Tribe to adopt special
protective designations where listed or
proposed threatened or endangered species are
present or critical habitat is designated or
proposed.
EPA will initiate discussions with the Services
if there is a concern that a draft State or Tribal
standard or relevant policy may impact
Federally-listed species or critical habitat.
3. Adoption and Submittal of State or Tribal
Standards
States or Tribes adopt new and revised
standards and implementing policies from
time to time as well as at the conclusion of the
triennial review period.
After the final action adopting the standards.
the State or Tribe sends its adopted standards
to EPA. Once received. EPA is required by the
CWA to approve the standards within 60 days
or disapprove them within 90 days. Section 7
consultation is required if EPA determines
that its approval of any of the standards may
affect listed species or designated critical
habitat. The time periods established by the
CWA require that EPA and the Services work
effectively together to complete any needed
consultation on a State's or Tribe's standards
quickly. In order to provide enough time for
consultation with the Services where the
approval may affect endangered or threatened
species. EPA will work with the State or Tribe
with the goal of providing to the Services a
final draft of the new or revised water quality
standards 90 days prior to the State's or Tribe's
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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 EPA's
findings. The Services will provide EPA with
one of the three following types of written
responses: 1) concurrence with EPA's
determination (this would conclude
consultation), 2) non-concurrence with EPA's
determination and, if the Services cannot
identify the specific ways to avoid adverse
effects, a request that EPA enter into formal
section 7 consultation (see 7 below), or 3) a
request that EPA provide further information
on their determination. If it is not practicable
for EPA to provide further information, the
Services will make a decision based on the
best available scientific and commercial
information.
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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
Ser\-ices will make every effort to complete
consultation and deliver)- 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 Sendee'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.f4(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 Sen-ice 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 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.
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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 procecures 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 cam' 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 Sendees 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.
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
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Federally-listed species or adversely
modifying critical habitat or for protecting a'nd
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
ESA with any promulgation.
IX. Permitting Program Activities
This Agreement establishes a framework for
coordinating actions by EPA and the Services
for activities under the CWA section 402.
These activities are: (1) EPA 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 Sendees agree to follow the
coordination procedures below with regard to
EPA review of State or Tribal permits in all
existing and new permitting programs
approved by EPA under section 402 of the
CWA. Procedures and time lines for EPA
review and objection to State or Tribal permits
are established by statute and regulation. See
CWA section 402(d); 40 CFR 123.44. Where
EPA determines that exercise of its objection
authority is appropriate to protect endangered
and threatened species, the Agency will act
pursuant to its existing authorities under the
CWA (i.e.. where the proposed permit would
be "outside the guidelines and requirements"
of the CWA. See CWA 402(d)(2)). EPA and
the Services will follow the coordination
procedures below in a manner consistent with
these statutory and regulatory procedures:
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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
or critical habitat that are more than minor,
including circumstances where the discharge
fails to ensure the protection and propagation
of fish, shellfish and wildlife, and where the
State or Tribe and the Services are unable to
resolve the issues, it is the intention of the
Services and EPA that EPA would work with
the State or Tribe to remove or reduce the
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
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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 (see
40CFR123.24(e)(I».
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
Sen-ice 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 Sen-ices 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.
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.
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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 habiiat 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. In consultations involving permits, any
reasonable and prudent measures (associated
with an incidental take statement) will specify
the measures considered necessary or
appropriate to minimize takings. The Services
will describe such measures. EPA may
delegate the terms and conditions of the
incidental take statement to permittees. The
Services will rely on EPA to retain the
responsibility to ensure the terms and
conditions are carried out. This approach will
be reflected in the Services' incidental take
statements. Monitoring reports to ensure
implementation of reasonable and prudent
measures and terms and conditions will be
made available to the Services by EPA in
accordance with the terms of the incidental
take statement.
Reasonable and prudent measures and terms
and conditions should be developed in close
coordination with the EPA to ensure that the
measures are reasonable, that they cause only
minor changes to the proposed action, and that
they are within the legal authority and
jurisdiction of the Agency to carry out. If the
Services and EPA cannot reach agreement on
appropriate reasonable and prudent measures
or terms and conditions at the level the
consultation is being conducted, the decision
can be elevated by the procedures discussed in
section V.A.
5. EPA will facilitate the involvement of
permittees or permit applicants in this process.
C. Watershed Planning
Whenever feasible and appropriate, the
Sendees will participate early on in watershed
planning processes. The active participation of
the Services as a core stakeholder in the
development of watershed or basin plans
should reduce or eliminate the need for. or
facilitate, consultation on EPA-issued permits
and coordination on individual State or Tribal
NPDES permits and other site-specific actions
that are contemplated in watershed plans.
Such participation should save the States.
Tribes, EPA and Services time and resources
while improving protection and recovery
efforts for both listed and unlisted species.
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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
part>7 against the United States, its agencies or
instrumentalities, its officers or employees, or
any other person.
XV. Effective Date; Termination
This memorandum will become effective upon
signature by each of the parties hereto. Any of
the parties may withdraw from this Agreement
upon 60 days written notice to the other
parties; provided that any section 7
consultation covered by the terms of this
Agreement that is pending at the time notice
of withdrawal is identified by the parties, and
those activities covered by this Agreement that
begin the consultation process prior to and
within the 60-day notice period, will continue
to be covered by the terms of this Agreement.
XVI. Signatures
(Signed)
1/10/01
Date
J. Charles Fox
Assistant Administrator for Water
U.S. Environmental Protection Agency
(Signed)
1/17/01
Date
Jamie Rappaport Clark
Director
U.S. Fish and Wildlife Service
(Signed) 1/18/01
Penelope D. Dal ton Date
Assistant Administrator for Fisheries
National Oceanic and Atmospheric
Administration
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
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