[Federal Register Volume 64, Number 10 (Friday, January 15, 1999)]
[Notices]
[Pages 2742-2757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1029]



[[Page 2741]]

_______________________________________________________________________

Part V

Environmental Protection Agency

Department of the Interior



Fish and Wildlife Service

Department of Commerce



National Oceanic and Atmospheric Administration



_______________________________________________________________________



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

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

[[Page 2742]]



ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[FRL-6219-4]


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

AGENCIES: Environmental Protection Agency, Fish and Wildlife Service, 
Interior, and National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Notice and request for comments.

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

SUMMARY: The Environmental Protection Agency, Fish and Wildlife 
Service, and National Marine Fisheries Service are publishing for 
public comment a draft Memorandum of Agreement describing procedures 
for enhancing coordination regarding the protection of endangered and 
threatened species under section 7 of the Endangered Species Act and 
the Clean Water Act's Water Quality Standards and National Pollutant 
Discharge Elimination System programs.

DATES: Comments must be received or postmarked by midnight March 16, 
1999.

ADDRESSES: An original and 4 copies of written comments should be 
submitted to W-98-32, ESA Comment Clerk, Water Docket (MC4101), USEPA 
401 M Street SW, Washington, DC, 20460. Commenters who want EPA to 
acknowledge receipt of their comments should enclose a self-addressed, 
stamped envelope. No facsimiles (faxes) will be accepted. Comments may 
also be submitted electronically to [email protected]. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption. Electronic comments 
must be identified by docket number W-98-32. Comments will also be 
accepted on disks in WP 5.1, WP 6.1, or ASCII file format.
    The record for this draft Memorandum of Agreement has been 
established under docket number W-98-32, and includes supporting 
documentation as well as printed, paper versions of electronic 
comments. The record is available for inspection from 9 to 4 p.m., 
Monday through Friday, excluding legal holidays at the Water Docket, EB 
57, USEPA Headquarters, 401 M Street, Washington, D.C. For access to 
docket materials, call 202-260-3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Barbara McLeod, Office of Water, 
Environmental Protection Agency (telephone 202-260-5681); Margaret 
Lorenz, Endangered Species Division, National Marine Fisheries Services 
(telephone 301-713-1401); or Richard Hannan, Division of Endangered 
Species, Fish and Wildlife Service (telephone 703-358-2171).

SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA), 
and the Fish and Wildlife Service and the National Marine Fisheries 
Service (the Services, referring to each Service individually or 
jointly, as appropriate), have developed a draft Memorandum of 
Agreement (MOA, or Agreement) describing how we will cooperate in 
implementing our respective responsibilities under the Clean Water Act 
(CWA) and the Endangered Species Act (ESA). Specifically, the draft MOA 
addresses the protection of endangered and threatened species under the 
Water Quality Standards and National Pollutant Discharge Elimination 
System (NPDES) programs established by sections 303(c) and 402 of the 
CWA, respectively.
    EPA and the Services believe that a national agreement detailing 
how these programs protect an important component of the aquatic 
environment--endangered and threatened species--will help achieve the 
complementary goals of the CWA and the ESA. Section 101(a) of the CWA 
states that the goal of this Act is to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters. 
One important indicator of biological integrity is the extent to which 
the waters provide for the ``protection and propagation of fish, 
shellfish and wildlife.'' CWA section 101(a)(2). Conversely, a water 
body whose quality is contributing to a species' risk of extinction is 
not fulfilling the CWA's objectives or meeting the objectives of the 
ESA. Paying attention to the needs of endangered and threatened species 
as EPA implements the CWA will help achieve the goals of the CWA as 
well as the ESA's objective of providing ``a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved. * * *'' ESA 2(b).
    In recent years, EPA and the Services have increased efforts to 
achieve greater integration of CWA and ESA programs. These activities 
have included ESA section 7 consultations on EPA's actions approving 
State and Tribal water quality standards and NPDES permitting programs. 
These consultations have generally been conducted by our regional and 
field offices on a case-by-case basis. We have found, however, that 
certain issues repeatedly arise in these consultations. These issues 
include: the extent to which water quality criteria are protective of 
listed species; the protection of non-aquatic wildlife; the appropriate 
scope of reasonable and prudent measures for minimizing incidental take 
of listed species; research needs to address areas of uncertainty; and 
interagency coordination with regard to EPA oversight of NPDES permits 
issued by States or Tribes. A coordinated national approach would help 
ensure an appropriate level of protection for listed species and 
greater regulatory predictability for States, Tribes, and the public. 
Enhanced cooperation among the agencies, by more effectively ensuring 
that effects from pollutants on listed species are addressed under 
existing authorities, should also help avoid the need to list new 
species under the ESA and facilitate recovery of species so that they 
no longer require protection under the ESA.
    The draft MOA also seeks to make ESA section 7 consultations more 
timely and efficient. Some consultations between the EPA and the 
Services have been protracted (the average water quality standards 
consultation has, for example, taken approximately eighteen months), 
consuming considerable EPA and Service resources. By providing guidance 
to our field offices, enhancing coordination, and establishing 
procedures for resolving disagreements, the draft MOA seeks to 
streamline the consultation process, helping us and interested parties 
that depend on timely decision-making by the Federal government.
    The draft MOA is a procedural document that addresses how EPA and 
the Services intend to exercise our existing statutory and regulatory 
authorities in a coordinated manner. A final MOA will be guidance to 
our field office staff that does not alter, expand, or substitute for 
applicable legal requirements. Therefore, development of the MOA is not 
subject to the notice and comment rule-making requirements of the 
Administrative Procedure Act, 5 U.S.C. 553. However, we believe that

[[Page 2743]]

these procedures would benefit from public input, and we will consider 
all public comments received prior to the date in the DATES section 
above.
    EPA and the Services have also been engaged in discussions 
regarding the development of procedures for coordination with regard to 
State/Tribal permitting programs under sections 404 and 405 of the CWA, 
and we plan to continue our discussions in these areas.

I. Statutory Background

    Section 7 of the ESA imposes substantive and procedural obligations 
on Federal agencies. Section 7(a)(1) of the ESA requires Federal 
agencies, in consultation with and with the assistance of the Services, 
to utilize their authorities to further the purposes of the ESA by 
carrying out programs for the conservation of listed threatened and 
endangered species. Section 7(a)(2) of the ESA states that Federal 
agencies shall, in consultation with, and with the assistance, of the 
Services, insure that any action authorized, funded, or carried out by 
the agency is not likely to jeopardize the continued existence of any 
listed species or result in the destruction or adverse modification of 
habitat that has been designated as critical for the species. Section 
7(a)(4) of the ESA also requires that Federal agencies confer with the 
Services on any agency action that is likely to jeopardize the 
continued existence of any species proposed for listing, or result in 
the destruction or adverse modification of proposed critical habitat. 
Regulations outlining the process for section 7 consultation and 
conference are codified at 50 CFR part 402.
    The ESA also makes it unlawful for any person to ``take'' any fish 
or wildlife species that is listed under the Act. ESA 9(a)(1)(B). 
``Take'' is defined to mean ``to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture or collect, or to attempt to engage in such 
conduct.'' 16 U.S.C. 1532(19). However, the Services may provide an 
exemption to the prohibition on take that is incidental to otherwise 
legal activity through a statement that is attached to a biological 
opinion. The incidental take statement specifies the terms and 
conditions necessary to carry out reasonable and prudent measures that 
will minimize the incidental take.
    EPA's authorities under the water quality standards and NPDES 
permitting programs are contained in sections 303(c), 304(a) and 402 of 
the CWA. Under section 303(c), the development of water quality 
standards is primarily the responsibility of States and Tribes 
qualified for treatment in the same manner as States, with EPA 
exercising an oversight role. Water quality standards consist of three 
components: (1) the designated uses of waters, which can include use 
for public water supplies, propagation of fish and wildlife, 
recreational, agricultural, industrial and other uses; (2) water 
quality criteria, expressed in numeric or narrative form, reflecting 
the condition of the water body that is necessary to protect its 
designated use, and (3) an antidegradation policy that protects 
existing uses and provides a mechanism for maintaining high water 
quality. States and Tribes are required to review their standards every 
three years and any revisions or new standards must be submitted to EPA 
for approval. Section 303(c) contains time frames for EPA to review and 
either approve or disapprove standards submitted by a State or Tribe, 
and requires EPA to promulgate Federal standards to supersede 
disapproved State or Tribal standards. In addition, section 303(c) 
authorizes EPA to promulgate Federal standards whenever the 
Administrator determines that such standards are necessary to meet the 
requirements of the CWA. Regulations implementing section 303(c) are 
codified at 40 CFR part 131.
    Under section 304(a) of the CWA, EPA from time to time publishes 
recommended water quality criteria that serve as scientific guidance 
for use by States or Tribes in establishing and revising water quality 
standards. These criteria are not enforceable requirements, but are 
recommended criteria levels that States or Tribes may adopt as part of 
their legally enforceable water quality standards. States or Tribes may 
adopt other scientifically defensible criteria instead of EPA's 
recommended criteria (see 40 CFR 131.11(b)).
    The NPDES permitting program is established by section 402 of the 
CWA. Any person that discharges a pollutant (other than dredged or fill 
material) into waters of the United States from a point source must 
obtain an NPDES permit. See CWA section 301(a). (Dischargers of dredged 
or fill material must obtain a permit under section 404 of the CWA from 
the Army Corps of Engineers or an authorized State.) EPA issues permits 
under section 402 unless a State or Tribe has been approved by EPA to 
administer the permitting program. Any NPDES permit must contain 
limitations to reflect the application of available treatment 
technologies, as well as any more stringent limitations needed to 
ensure compliance with water quality standards. CWA 301(b). EPA has 
promulgated regulations governing the administration of the NPDES 
program. See 40 CFR parts 122, 124-125.
    The CWA authorizes States or Tribes to administer the NPDES program 
provided the program meets the conditions specified in section 402(b) 
of the Act and EPA regulations. See 40 CFR part 123. Currently, 43 
States and the U.S. Virgin Islands have received approval from EPA to 
operate the NPDES program. Authorized States and Tribes are required to 
maintain their programs consistent with minimum statutory and 
regulatory requirements. When EPA approves State or Tribal authority to 
administer an NPDES program, EPA maintains oversight responsibility, 
including the authority to review, comment on and, where a permit is 
``outside the guidelines and requirements'' of the CWA, object to State 
or Tribal draft permits. CWA section 402(d)(2). If EPA objects to a 
State or Tribal permit and the State or Tribe fails to revise the 
permit to satisfy EPA's objection, the authority to issue the permit is 
transferred to EPA. Section 402(c) of the CWA authorizes EPA to 
withdraw the State's or Tribe's permitting authority if EPA determines 
the program is not being administered in accordance with the Act.

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

    EPA and the Services have developed this draft MOA after 
approximately two years of discussions. In addition, EPA communicated 
with stakeholders (e.g., States, Tribes, industry and environmental 
groups) about the MOA, and gave copies of a July 31, 1997, version of 
the draft MOA to each of the 50 State environmental agencies, several 
industry trade associations, environmental groups and any other party 
requesting a copy. We also invited these parties to provide comments on 
the draft and received approximately 90 comments. We recognize that 
other interested parties may not have had an opportunity to provide 
comments to the agencies, and therefore are providing an opportunity 
for comment on this draft. Below we have responded to some general 
concerns that were raised in comments we received to date. We hope that 
this discussion will help clarify the purpose and intent of this draft, 
and help the public in formulating comments.
    While some commenters supported the basic approach in the MOA, most 
commenters expressed concerns that the draft MOA would significantly 
disrupt State CWA programs and undermine State and Tribal authorities 
under sections 303 and 402 of the CWA. Some commenters believed that 
the draft MOA raises significant legal issues regarding the 
applicability of section 7

[[Page 2744]]

consultation requirements to State, as opposed to Federal, water 
quality management activities. We believe that these comments 
misunderstand the intent and effect of the MOA, which is to make the 
existing coordination and consultation process between EPA and the 
Services more efficient and effective, not to impose any burdens on 
States or Tribes.
    The draft MOA does not change our current policy of conducting 
section 7 consultations on EPA's actions approving water quality 
standards and NPDES permitting programs that may affect a listed 
species. Neither does the draft MOA alter the fact that section 7 of 
the ESA applies only to Federal agencies, not to States or Tribes. 
Rather, the draft MOA simply contains commitments by EPA and the 
Services about how we will work together in carrying out our own 
responsibilities under the ESA and the CWA.
    EPA and the Services recognize that carrying out section 7 
consultations on EPA approval of State and Tribal water quality 
standards and permitting programs presents special challenges. In most 
section 7 consultations, the Federal agency consults regarding its own 
activities or authorization of actions by third parties that affect 
listed species. Here, EPA is consulting with the Services on EPA's 
approval of State or Tribal programs that will, in turn, authorize 
activities potentially affecting listed species on an ongoing basis. 
The draft MOA seeks to facilitate Service involvement at the State and 
Tribal level, rather than only at the time the State or Tribal action 
has been completed and is being reviewed by EPA. Dialogue among EPA, 
the Services and States and Tribes through existing State or Tribal CWA 
procedures will best ensure that both CWA and ESA requirements are met.
    The draft MOA would not override traditional State or Tribal 
authority or fundamentally alter relationships between the States, 
Tribes and EPA. The CWA gives States and Tribes primary responsibility 
for administration of the water quality standards and NPDES permitting 
programs, with EPA playing a carefully delineated oversight role. The 
draft MOA seeks to ensure that EPA's oversight takes into account the 
needs of listed species, but does not augment EPA's existing oversight 
authorities under sections 303(c) or 402 of the CWA.
    Some commenters concluded that the draft MOA would give the 
Services the power unilaterally to ``veto'' State or Tribal NPDES 
permits or require changes to water quality standards. EPA is the 
agency vested with decision-making oversight authority under the CWA 
over State and Tribal water quality standards and permitting programs, 
and the MOA does not alter or diminish this authority. Under the MOA, 
EPA would continue to exercise its own independent judgment whether to 
object to a State or Tribal permit or to approve or disapprove State or 
Tribal water quality standards, based on all the available information, 
including the advice and recommendations of the Services. One commenter 
recognized that EPA would retain decision-making authority, but 
asserted that the practical effect of the draft MOA would be to give 
the Services veto power because EPA would want to avoid a disagreement 
with the Services. The MOA recognizes that EPA and the Services may not 
always agree, and the elevation procedures in the MOA will help resolve 
differences of opinion. However, the draft MOA does not diminish each 
agency's ultimate authority to make final decisions under its statutory 
authorities.
    One commenter asserted that EPA and the Services have not 
demonstrated that the current ``system'' is inadequate and needs to be 
replaced with one that is more cumbersome. This comment appears to 
misunderstand the status quo. As discussed previously, section 7 of the 
ESA gives the Services a consultative role when EPA takes actions 
approving State and Tribal water quality standards and NPDES programs 
that may affect listed species. The MOA does not change or extend this 
role, but rather seeks to ensure consultations are carried out 
effectively and efficiently.

III. Summary of the Draft MOA

    The major components of the MOA are summarized below. These 
components are (1) procedures for interagency coordination and 
elevation, (2) national level water quality standards activities, (3) 
review of State and Tribal water quality standards, and (4) oversight 
of State and Tribal NPDES permitting programs. In addition to 
summarizing these aspects of the draft MOA, we address below 
significant comments about each section submitted on the July 31, 1997, 
draft of the MOA.

A. Interagency Coordination and Elevation

    The draft MOA provides that EPA and the Services will establish 
interagency coordinating teams at the regional and field office level 
to foster early and recurring collaboration on various CWA and ESA 
activities. Among other things, these teams will meet regularly and 
identify priority areas of concern and upcoming workload requirements. 
Enhancing the collaborative working relationships among our regional 
and field offices will mean more efficient allocation of our limited 
resources and more timely completion of section 7 consultations.
    The draft MOA also contains an elevation procedure that we will use 
to resolve issues that may arise among EPA and the Services. Under this 
procedure, we will elevate areas of disagreement to regional office 
senior managers and, if necessary, to managers in our headquarters 
offices under specified time lines. This elevation procedure should 
help avoid delays in resolving issues, and speed the completion of 
section 7 consultations. The elevation procedures recognize, however, 
that each agency is responsible for final decisions implementing its 
own statutory authority. We intend to follow the elevation process 
contained in the draft MOA on an interim basis before finalizing the 
MOA to help assess the effectiveness of the process.

B. National Level Water Quality Standards Activities

    The draft MOA describes several activities that EPA and the 
Services will undertake at the national level to facilitate 
consideration of endangered species issues in the water quality 
standards program. First, the MOA states that EPA will propose to amend 
its water quality standards regulations (40 CFR part 131) to require 
that water quality not likely jeopardize the continued existence of 
Federally-listed species or destroy or adversely modify designated 
critical habitat. The proposed rule would also require that State or 
Tribal policies authorizing the granting of mixing zones or variances 
not likely result in jeopardy, and require adoption of site-specific 
criteria where determined to be necessary to avoid the likelihood of 
jeopardy. A similar approach was taken by EPA in regulations 
promulgated for the Great Lakes basin. See 40 CFR 132.5(h); 56 FR 15384 
(March 23, 1995).
    EPA believes that the proposed rule essentially would codify 
existing protection for endangered and threatened species under the CWA 
since, in EPA's judgment, water quality that is so degraded that it 
will likely cause jeopardy to the continued existence of a species 
would generally not be consistent with protections provided by the 
Clean Water Act. Standards adopted by the State or Tribe to protect 
water quality. The proposed rule would be subject to public notice and 
opportunity for comment.
    Many States commented that EPA should consult with the Services on

[[Page 2745]]

EPA's recommended water quality criteria published under section 
304(a). The States believed that such consultations on a national level 
would be more efficient than consulting on criteria adopted by 
individual States, many of which are based on EPA's recommended 
criteria. EPA and the Services have engaged in further discussions in 
light of these comments. We recognize that the aquatic life criteria 
published by EPA only constitute guidance to the States, Tribes and the 
public regarding pollutant levels that EPA believes would protect 
aquatic life. These criteria are not binding on the States or Tribes, 
which may adopt EPA's criteria or any other criteria that are 
``scientifically defensible.'' See 40 CFR 131.11(b). Moreover, water 
quality criteria published by EPA, because they are only guidance, do 
not establish legally enforceable requirements. Nonetheless, we believe 
it would be more efficient for us to consult once nationally on EPA's 
recommended criteria, rather than repeat the process on a case-by-case 
basis.
    The draft MOA therefore provides that EPA and the Services will 
conduct a national consultation on EPA's recommended aquatic life 
criteria published under section 304(a) of the CWA. The agencies will 
undertake the consultation in a collaborative fashion and will endeavor 
to complete it within eighteen months of final adoption of the MOA. 
After this consultation is completed, separate consultations by EPA 
will not be required when approving State or Tribal aquatic life 
criteria that are identical to or more stringent than the recommended 
criteria, except where new species are listed that may be affected. 
Conducting this national consultation will help streamline EPA's 
compliance with section 7 of the ESA when approving State or Tribal 
water quality standards. During this national consultation, if a State 
or Tribe adopts and submits to EPA aquatic life criteria that are 
identical to or more stringent than the current 304(a) criteria, 
consultation on those criteria will take place through the national 
consultation and EPA will proceed with its approval of those criteria, 
subject to the understanding that EPA's action would be revised as 
appropriate based on the results of the national consultation.
    This consultation process, as well as other consultations among EPA 
and the Services, may identify research that would facilitate our 
understanding of the effects of pollutants on endangered and threatened 
species. EPA and the Services recognize our joint interest in, and 
responsibility for, funding and conducting research related to the 
effects of water pollution on endangered and threatened species. The 
agencies' resources for conducting such research are limited, however, 
and the agencies must focus their efforts on pursuing research that can 
be carried out given budgetary constraints and will provide the 
greatest benefit to at-risk species. The agencies will therefore 
develop a national research and data gathering plan, which will make 
recommendations regarding consolidation and prioritization of any 
research and data gathering efforts identified by the agencies through 
section 7 consultation on the aquatic life criteria, or any other CWA 
consultation or coordination between the agencies. The agencies will 
work to incorporate the plan into their respective budgets and to 
achieve economies of scale and increased effectiveness in the use of 
limited funds by coordinating efforts wherever possible. The plan may 
also include recommendations about the development of new criteria 
(e.g., criteria to protect non-aquatic wildlife) by the agencies.

C. State and Tribal Water Quality Standards

    The draft MOA contains guidance to regional and field offices 
regarding section 7 consultations on EPA's approval of new or revised 
water quality standards. The draft MOA seeks to facilitate early 
involvement of the Services in the State and Tribal water quality 
standards development process, since the most effective time for the 
Services to become involved is before and during the State's or Tribe's 
development of the standards. Therefore, the draft MOA provides that 
EPA and the Services will meet to discuss the scope of upcoming 
triennial reviews by States and Tribes and that the Services will 
provide input in the standards development process. The draft MOA also 
provides that, where available information supports a determination 
that existing standards are not adequate to avoid causing jeopardy to a 
listed species, EPA will work with the State or Tribe to obtain 
revisions to the standards in the triennial review process.
    One commenter raised the concern that the draft MOA imposed an 
obligation on States and Tribes to improve the quality of the 
environment, whereas section 9 of the ESA only prohibits a take of 
listed species unless an exception has been made. Again, the draft MOA 
is solely a procedural document that does not impose any obligations on 
any party, including States and Tribes. Moreover, the CWA charges EPA, 
States and Tribes with protecting the chemical, physical and biological 
integrity of the Nation's waters. We believe our statutory 
responsibilities are carried out by ensuring that water is of 
sufficient quality to ensure the protection of endangered and 
threatened species.
    Other commenters raised the concern that the draft MOA would 
elevate endangered species considerations above all other 
considerations under the CWA, and undermine the flexibility currently 
exercised by States and Tribes to establish use designations that take 
into account socioeconomic factors or otherwise do not necessarily 
maximize protection of fish and wildlife. Nothing in the draft MOA, 
however, modifies any existing statutory and regulatory authorities of 
EPA, the Services or States and Tribes, including the flexibility 
available to States and Tribes in establishing water quality standards. 
The draft MOA is solely an internal procedural document about how CWA 
and ESA requirements interrelate. We do not share the assumption that 
expressly integrating endangered species concerns into the water 
quality standards program would lead to irreconcilable conflicts.

D. State and Tribal Permitting Programs

    The draft MOA establishes a framework for EPA and the Services to 
coordinate with regard to permits issued by States or Tribes under 
section 402 of the CWA. All State and Tribal programs must meet the 
same minimum requirements under section 402 of the CWA and EPA 
regulations, and EPA's authorities for overseeing State and Tribal 
permitting decisions are uniform in all States. See 40 CFR part 123, 
subpart C. To date, EPA and the Services have developed coordination 
procedures on a case-by-case basis, and these procedures have been 
fundamentally similar. Given this similarity, we believe that the 
procedural framework for interagency coordination regarding State and 
Tribal programs can and should be established on a national basis. 
Doing so ensures a consistent, appropriate level of protection for 
listed species, and avoids the need to continue developing procedures 
on a case-by-case basis. These procedures are sufficiently flexible to 
address the full range of circumstances that may arise in any 
particular permit proceeding.
    Under these procedures, EPA would ensure that States and Tribes, in 
accordance with existing CWA requirements, provide copies of permits to 
the Services for their review. The

[[Page 2746]]

EPA and the Services would work with the State or Tribe where EPA or 
the Services believed a permit is likely to adversely affect a listed 
species. EPA would coordinate with the Services and State or Tribe to 
ensure that the permit complies with all applicable CWA requirements. 
If the issue still cannot be resolved, the draft MOA states that EPA 
may object to the State or Tribal permit if EPA determines the permit 
is likely to adversely affect listed species and the permit is subject 
to objection under section 402(d) of the CWA as being ``outside the 
guidelines and requirements'' of that Act. If EPA determines, based on 
analysis by EPA or the Services, that the permit is likely to 
jeopardize the continued existence of the listed species, EPA will use 
the full extent of its CWA authority to object to the permit.
    EPA and the Services also plan to conduct a national programmatic 
consultation on whether the establishment of these procedures is 
sufficient to avoid the likely jeopardy of listed species due to 
discharges authorized under State and Tribal NPDES programs. Because 
these procedures can be applied to any State or Tribe that administers 
the NPDES program, we believe that a single programmatic consultation 
would be the most efficient means of ensuring that programs throughout 
the country are protecting endangered and threatened species in 
accordance with the requirements of the CWA. We anticipate that the 
consultation will cover existing State and Tribal NPDES programs and 
any program submitted after issuance of the biological opinion where 
the agreed-upon coordination procedures will be followed.
    EPA and the Services believe that this approach ensures that any 
issues regarding listed species will be adequately addressed. We 
recognize that the Congress intended administration of the NPDES 
permitting program to be primarily the responsibility of States and 
Tribes, with EPA playing only an oversight role in most instances. EPA 
and the Services do not believe that the procedures contained in the 
draft MOA would upset the CWA's carefully crafted balance between 
Federal and State authorities. We anticipate that the need for EPA 
objections to State and Tribal permits will continue to be rare. Where 
EPA believes a permit is not in accordance with CWA requirements and 
impacts to listed species are of serious concern, however, EPA is 
committed to using its CWA authorities to ensure that listed species 
are protected.
    One comment on the July 1997 draft of the MOA asserted that the 
``coordination'' called for in the draft MOA is, in fact, informal 
consultation under section 7 of the ESA, with the possibility of formal 
consultation to follow. ``Consultation'' under section 7(a)(2) of the 
Endangered Species Act (ESA) is a process that imposes certain 
procedural obligations on the Federal agency consulting with the 
Services (see 50 CFR part 402). The MOA does not adopt those 
procedures, but instead directs EPA and the Services to share 
information and recommendations with each other and States and Tribes. 
The draft MOA does not impose any obligations, procedural or otherwise, 
on any State or Tribe, which would continue only to be required to meet 
their procedural and substantive obligations under the CWA. The draft 
MOA uses the word ``coordination'' precisely to make clear that the 
section 7 consultation process is not being applied to State or Tribal-
issued NPDES permits.
    One court case, American Forest and Paper Association v. EPA, 137 
F.3d 291 (5th Cir. 1998) has addressed the scope of EPA's authority to 
ensure protection of listed species in its approval and oversight of a 
State NPDES program. In that case, EPA, the Services and the State of 
Louisiana entered into Memoranda of Agreement describing the 
coordination that would occur with regard to State NPDES permits. The 
Court found, contrary to EPA's views, that EPA had required the State 
of Louisiana to consult with the Services before issuing permits as a 
condition for program approval. The Court held that EPA is not 
authorized to add any requirements for a State permitting program 
beyond the nine specific criteria enumerated in section 402(b) of the 
CWA, and invalidated the endangered species coordination procedures.
    While EPA believes that this case was wrongly decided, the 
procedures in the draft MOA are within EPA's authorities under the AFPA 
Court's reading of the CWA. First, unlike the Louisiana procedures, the 
draft MOA is an agreement solely among Federal agencies. It would 
impose no obligations or commitments on any State or Tribe 
administering the NPDES program, nor would it place any conditions on 
EPA's approval of NPDES programs, which would continue to be based on 
the criteria enumerated in section 402(b) of the CWA. Moreover, unlike 
some of the procedures agreed to in Louisiana, the draft MOA makes 
clear that EPA would retain the ultimate authority for determining 
whether to object to a State or Tribal permit, and that EPA would do so 
pursuant to its authorities under the CWA.

    Dated: December 9, 1998.
J. Charles Fox,
Assistant Administrator for Water, U.S. Environmental Protection 
Agency.

    Dated: January 7, 1999.
Donald J. Barry,
Assistant Secretary for Fish, Wildlife and Parks, U.S. Department of 
the Interior.

    Dated: December 15, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration.

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

Table of Contents

I. Purpose
II. Goals and Objectives
III. Guiding Principles
IV. Authorities
    A. Fish and Wildlife Service and National Marine Fisheries 
Service Authorities
    B. Environmental Protection Agency Authorities
    C. Reservation of Authorities
V. Provisions and Understandings
    A. Procedures to Facilitate Interagency Cooperation
    1. Local/Regional Coordinating Teams
    2. Interagency Elevation Process
    3. Oversight Panel
    4. Sub-Agreements
    5. Guidance/Training
    B. Summary--Section 7 Consultation Process
    1. Scope
    2. Data and Information Requirements
    3. Information Sharing
    4. Effects of an Action
    5. Biological Evaluation
    6. Timeliness of Actions
    7. EPA Responsibility at the Conclusion of Section 7 
Consultation
    8. Reinitiation of Formal Consultation
    C. Proposed Species and Proposed Critical Habitat
    D. Recovery Program
    1. Conservation Recommendations to Assist Recovery
    2. Recovery Planning
    3. Recovery Implementation
    E. Candidate Conservation Activities
VI. National Level Activities to Ensure Protection of Species
    A. National Rule-making
    B. Development of New Water Quality Criteria Methodological 
Guidelines
    C. National Consultation on CWA Section 304(a) Aquatic Life 
Criteria
    1. Overview
    2. Procedures for Consultation
VII. Joint National Research and Data Gathering Plan and Priorities

[[Page 2747]]

    A. Existing and New Water Quality Criteria
    B. Work Group Report to Agreement Signatories
    C. National Research and Data Gathering Plan
    D. Consultation on State and Tribal Water Quality Standards
VIII. Consultation on Water Quality Standards Actions
    A. Development of New or Revised State or Tribal Water Quality 
Standards
    1. Scoping of Issues to be Considered During the Triennial 
Review Process
    2. Development of State or Tribal Standards
    3. Adoption and Submittal of State or Tribal Standards
    4. EPA Develops Biological Evaluation
    5. EPA Determination of ``No Effect'' or ``May Affect''
    6. Services' Review of ``Not Likely to Adversely Affect'' 
Determination
    7. Formal Consultation
    8. EPA Action on State or Tribal Standards
    B. Existing Water Quality Standards
    C. Consultation on EPA Promulgation of State or Tribal Water 
Quality Standards
IX. Permitting Program Activities
    A. Programmatic Section 7 Consultation
    B. Coordination Procedures Regarding Issuance of State or Tribal 
Permits
    C. Issuance of EPA Permits
    D. Watershed Planning
X. Support in Administrative and Judicial Proceedings
XI. Revisions to Agreement
XII. Reservation of Agency Positions
XIII. Obligations of Funds, Commitment of Resources
XIV. Nature of Agreement
XV. Effective Date; Termination
XVI. Signatories

I. Purpose

    This Agreement is designed (1) to improve coordination of the 
agencies' compliance with the Endangered Species Act (ESA) for actions 
authorized, funded, or carried out by EPA under sections 303(c) and 402 
of the Clean Water Act (CWA), and (2) to provide clear and efficient 
mechanisms for improved interagency cooperation, thereby enhancing 
protection and promoting the recovery of threatened and endangered 
species and their supporting ecosystems, and reducing the need for 
future listing actions under the ESA. Throughout this Agreement, 
``Service'' or ``Services'' shall refer to the Fish and Wildlife 
Service (FWS) and/or National Marine Fisheries Service (NMFS), as 
appropriate. In this Agreement ``States'' refers to States, Territories 
and Commonwealths that qualify as States for the programs covered by 
this Agreement.

II. Goals and Objectives

    This Agreement is intended to accomplish the following:

--Use a team approach at the national, regional, and field office 
levels to restore and protect watersheds and ecosystems to achieve the 
goals of the ESA and CWA;
--Improve the framework for meeting responsibilities under section 7 of 
the ESA;
--Enhance the existing process in place to protect and recover 
Federally-listed and proposed species and the ecosystems on which they 
depend;
--Improve methods for coordinating compliance with sections 303(c) and 
402 of the CWA and section 7 of the ESA;
--Streamline the Federal agency coordination process to minimize the 
regulatory burden, workload, and paperwork for all involved parties;
--Ensure a nationally consistent coordination process that allows 
flexibility to deal with site-specific issues;
--Develop mechanisms for EPA participation in the development and 
implementation of recovery plans for Federally-listed species 
threatened by physical, chemical or biological impairment of waters of 
the United States;
--Provide mechanisms for the Services' participation in development of 
water quality criteria and standards recognizing any unique 
requirements for listed and proposed species and designated and 
proposed critical habitat;
--Identify a collaborative mechanism for planning and prioritizing 
future CWA/ESA actions and resolving any potential conflicts or 
disagreements through a structured time-sensitive process at the lowest 
possible level within the agencies.

III. Guiding Principles

    The ESA sets forth the goal of protecting and recovering threatened 
and endangered species and the ecosystems upon which they depend. It 
places responsibility on all Federal agencies, including EPA and the 
Services, to meet that goal. The Clean Water Act (CWA) sets forth a 
goal of restoring and maintaining the chemical, physical and biological 
integrity of the Nation's waters. Sections 303(c) and 402 of the CWA 
(as well as other provisions) are directed toward achieving this goal.
    EPA and the Services find the goals of the CWA and ESA compatible 
and complementary, and are entering into this Agreement to form a 
partnership to enhance the realization of the goals of both Acts. This 
partnership will also seek to efficiently and effectively fulfill the 
requirements of section 7 of the ESA.
    The primary principle underlying this Agreement is cooperative 
partnership. The ESA requires the involvement of all Federal agencies 
in the protection and recovery of our Nation's unique biological 
resources. As a result of this Agreement, the signatory agencies will 
better coordinate their efforts and will make it easier for the 
regulated community and other partners to work with them in achieving 
the purposes of the CWA and ESA.
    While States and Tribes play a critical role in the administration 
and implementation of sections 303(c) and 402 of the CWA, they are not 
signatories to this agreement, which only applies to Federal actions 
subject to section 7(a)(2) of the ESA. The Services and EPA remain 
committed to working with the States and Tribes collaboratively at all 
levels to ensure that both the CWA and ESA are implemented in a manner 
that fulfills the goals of both statutes in a timely and efficient 
manner.

IV. Authorities

A. Fish and Wildlife Service and National Marine Fisheries Service 
Authorities

    This Agreement relates to the following authorities of the 
Services:

--Section 7 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531-1544).

B. Environmental Protection Agency Authorities

    This Agreement relates to the following authorities of EPA:

--Sections 303(c), 304(a) and 402 of the Clean Water Act, as amended, 
33 U.S.C. 1251-1387.

C. Reservation of Authorities

    This Agreement does not modify existing Agency authorities by 
reducing, expanding, or transferring any of the statutory or regulatory 
authorities and responsibilities of any of the signatory agencies.

V. Provisions and Understandings

A. Procedures to Facilitate Interagency Cooperation

    EPA and the Services intend to work cooperatively to achieve their 
mutually shared objectives of protecting the quality of waters of the 
United States and species that depend on those waters. To facilitate 
collaboration among agency field and regional staff for planning and 
prioritizing future CWA/ESA actions and resolving any potential 
conflicts or disagreements through a structured, time-sensitive process 
at the lowest possible level, the agencies will follow the coordination 
and elevation procedures described below.

[[Page 2748]]

1. Local/Regional Coordinating Teams
    The regional offices of EPA and the Services will establish 
coordinating teams, including representation from field offices, to 
foster early and recurring collaboration on various activities related 
to the CWA and the ESA. These teams will, as appropriate:
    a. Meet at least annually;
    b. Identify upcoming workload requirements. This dialogue will 
allow signatory agencies to become aware of and provide input on 
upcoming activities such as annual work plans, triennial water quality 
standards reviews, recovery plan preparation, proposed State or Tribal 
program assumptions, proposed listings, or proposed habitat 
conservation planning efforts;
    c. Identify high priority areas of concern and opportunities for 
cooperation.
    d. Assist one another in determining which categories of NPDES 
permits should be identified for review by EPA and the Services for 
endangered species concerns, including waters of high concern in each 
State that should be priorities for EPA oversight;
    e. Identify current and future research needs and determine which 
of these research needs are appropriate to convey to the research 
coordinating committee and which are appropriate for local or regional 
accomplishment;
    f. Identify training needs; and
    g. Identify ways to reduce the impacts of proposed agency actions 
on endangered and threatened species.
    Each of these local/regional coordinating teams should develop 
mechanisms to facilitate streamlining of various work activities as 
appropriate to the local circumstances. Such streamlining should 
facilitate early exchange of information, early prioritization of 
workload, and early identification of potential problems. Each local 
group should develop mechanisms to work with States and Tribes, as 
appropriate, concerning such things as candidate conservation 
agreements, recovery planning, triennial reviews, and annual CWA 
priorities. Local/regional coordinating teams may develop mechanisms to 
involve other Federal agencies such as the U.S. Army Corps of 
Engineers, the Forest Service, the Federal Energy Regulatory 
Commission, and non-Federal stakeholders whose actions and interests 
may impact the CWA/ESA issues.
2. Interagency Elevation Process
    The following procedures shall be utilized to elevate any conflict 
or disagreement between the agencies. While decisions by all levels, 
including decisions to elevate, will be made by consensus to the 
greatest extent practicable, any one agency can initiate the elevation 
process. Each agency retains its statutory and regulatory authority to 
make final decisions within its jurisdiction. Elevation should be 
initiated so that all applicable deadlines may be met, taking into 
account subsequent levels of review. In any elevation, the agencies 
will jointly prepare an elevation document that will contain a joint 
statement of facts and succinctly state each agency's position and 
recommendations for resolution. If the agencies are aware of a dispute, 
they will defer taking final action, where consistent with applicable 
legal deadlines, to allow the issue to be resolved through the 
elevation process.
    The time periods specified below are intended to facilitate 
expeditious resolution of the issues. These time periods should be 
shortened when necessary for any agency to meet applicable legal 
deadlines. The time periods begin to run on the date that the elevating 
agency or agencies notify the next level of the elevation request. All 
prescribed time frames in the elevation process can be waived by the 
mutual consent of the participants at any level when the participants 
believe that progress is being made and that resolution at that level 
is still possible.
    a. Level 1: The Level 1 review team consists of staff personnel 
from EPA and FWS and/or NMFS. The overall goal is to design actions to 
minimize adverse impacts to listed species by jointly working on 
biological evaluations, concurrences and biological opinions for such 
actions. General functions include those specified in section V.A.1.
    Any contentious issues will be discussed with an attempt to resolve 
them without elevation. If disputes cannot be resolved among the Level 
1 team members, the issue will be raised with the Level 2 review team 
as soon as possible.
    b. Level 2: The Level 2 review team consists of field unit line 
officers or staff supervisors, (i.e., for NMFS, branch/division chiefs; 
for EPA, branch chiefs; and for FWS, field office supervisors). General 
functions are to oversee and coordinate activities, including those 
specified in section V.A.1.
    The Level 2 team will make their best efforts to resolve any issues 
elevated to them. Where resolution is not possible at this level, the 
Level 2 team will elevate the issue to the Level 3 team no later than 
14 days after notification by the Level 1 team, or sooner as agreed 
upon or mandatory deadlines require.
    c. Level 3: The Level 3 review team consists of all regional 
executives (i.e., for NMFS and EPA, regional administrators; and for 
FWS, regional directors). Their function is to resolve any elevated 
disputes within 21 days of notification of elevation by Level 2 teams, 
or sooner as necessary to meet mandatory deadlines, and serve as key 
advisors on policy and process. If issues are not resolved by the Level 
3 team, the issue will be elevated for Headquarters Review.
    d. Headquarters Review: This review consists of the Director of 
NMFS (Assistant Administrator for Fisheries, National Oceanic and 
Atmospheric Administration, NOAA), the Director of FWS, and the Deputy 
Assistant Administrator of Water at EPA or their representatives who 
shall attempt to resolve disputes elevated by the regional executives. 
Agency administrators shall attempt to issue a decision resolving the 
issue within 21 days after elevation. Decisions will be binding upon 
the agencies' field staffs. Agency administrators or their designees 
shall make every attempt to resolve the dispute before elevation, where 
necessary, to the Assistant Secretaries of the Departments of Interior/
Commerce and the Assistant Administrator of EPA. The responsible 
Assistant Secretary(s) and Assistant Administrator shall resolve any 
issues within 21 days of elevation. At this resolution level, the 
decision must rest with the agency exercising the statutory or 
regulatory authority in question.
3. Oversight Panel
    The Oversight Panel consists of regional and headquarters personnel 
from each individual agency. The panel provides oversight and 
coordination for all aspects of this agreement. Its functions include, 
but are not limited to:
    (1) Maintaining and updating process guidance;
    (2) Addressing issues about process implementation;
    (3) Incorporating/identifying improvements and revisions into the 
process;
    (4) Convening interagency scientific/technical reviews, as 
appropriate;
    (5) Facilitating reaching consensus on particular issues at any 
level upon requests by personnel at that level; and
    (6) Reviewing and evaluating, at least on an annual basis, the 
Agreement and its implementation by the three agencies.
4. Sub-Agreements
    Regional and field level Federal sub-agreements further 
implementing this Agreement may be executed by

[[Page 2749]]

appropriate EPA/Services programs. Any such sub-agreements which 
clarify roles, procedures, and responsibilities are encouraged. This 
includes any efforts to protect species and water quality on a 
watershed or ecosystem basis. Sub-agreements must be consistent with 
this Agreement and must be approved by Regional offices and reviewed by 
Headquarters.
5. Guidance/Training
    EPA and the Services will hold joint training sessions with 
regional and field staff to facilitate staff's understanding and 
implementation of the Agreement, with a goal of providing such training 
to all relevant personnel within eighteen months. The agencies may 
issue guidance individually or jointly to assist in carrying out this 
Agreement.

B. Summary--Section 7 Consultation Process

1. Scope
    The regulations that interpret and implement section 7 of the ESA 
establish a framework for efficient and consistent consultation between 
Federal agencies regarding listed species and critical habitat.
2. Data and Information Requirements
    EPA agrees to include in any biological assessment or evaluation 
the best available scientific and commercial information. EPA and the 
Services will exercise their scientific judgment to determine the 
relevance and validity of the available scientific and commercial 
information. The Level 1 review teams will provide a venue for 
collaborating among the agencies on these issues.
3. Information Sharing
    The Services will initially provide EPA with a consolidated list of 
Federally-listed and proposed species and designated and proposed 
critical habitat by State. The Services agree to provide to EPA any 
additions of species or other relevant information as proposed or final 
rule-making occurs. EPA will provide and update copies of Federal 
section 304(a) water quality criteria and applicable State and Tribal 
water quality standards to the Services.
    EPA and the Services will share information and analyses used to 
make decisions under this Agreement when requested, including analyses 
supporting biological evaluations and biological opinions. The Services 
will provide to EPA copies of all draft jeopardy biological opinions 
and draft no jeopardy biological opinions with incidental take 
statements, unless EPA specifically requests that a draft not be 
provided.
4. Effects of an Action
    All ``effects of the action'' and ``cumulative effects'' will be 
considered in the Service's biological opinions (50 CFR 402.14(c), 
402.14(g) (3) and (4), and 402.14(h)). The ``effects of an action'' 
include all direct as well as indirect effects that are reasonably 
certain to occur, even at a later time. Effects of an action include 
effects of interrelated and interdependent actions associated with the 
proposed action in question. Cumulative effects include future State or 
Tribal and private actions that are reasonably certain to occur in the 
action area that do not involve Federal activities. Water quality 
criteria and State or Tribal water quality standards establish levels 
of pollutants from all sources, and so would account for all such 
effects insofar as water quality is concerned. Since NPDES permits are 
established to achieve water quality standards, they will account for 
point source effects insofar as water quality is concerned.
5. Biological Evaluation
    Although section 7(c) of the ESA refers to a biological assessment 
as an element of the consultation process, a biological assessment is 
required only in the case of a major construction activity, as defined 
at 50 CFR 402.02. The purpose of a biological assessment is to enable 
an agency to determine whether a proposed action is likely to adversely 
affect Federally-listed species and designated critical habitat. A 
biological assessment also assists an agency in complying with 
potential ESA ``conference'' requirements for proposed species and 
critical habitat under 50 CFR 402.10. For EPA actions that are not 
major construction activities, an alternative document that may be used 
for decision-making is a biological evaluation. While a biological 
evaluation is not required by regulation, EPA will develop such an 
evaluation where the Agency determines it would be appropriate for 
determining whether listed species may be affected by the proposed 
action and for assisting consultation with the Services. The Services 
recognize that the content and format of the biological evaluation are 
to be determined by EPA.
    A biological evaluation is an analysis of the potential effects of 
a proposed action on listed species or their critical habitat based 
upon the best available scientific or commercial information. The 
biological evaluation will vary in extent and rigor according to the 
certainty and severity of an action's deleterious effect. For example, 
a biological evaluation may be very brief if the expected result of an 
action is straightforward, is beneficial, or is of little or no 
consequence. If, on the other hand, the potential effects are severe, 
large in scope, complex or uncertain in terms of outcome, the analysis 
would need to be more extensive and rigorous.
    A biological evaluation can be used for decision-making prior to 
and throughout section 7 consultation and for a possible conference on 
proposed species or critical habitat. The evaluation can be used to 
make a ``may effect'' or ``no effect'' determination, or to support a 
judgment that the proposed action is or is not likely to adversely 
affect listed species or their critical habitat.
    If early or formal consultation is initiated, a biological 
evaluation or biological assessment can be used by the appropriate 
Service in rendering a preliminary or final biological opinion.
6. Timeliness of Actions
    In informal and formal consultation, EPA and the Services agree to 
adhere to time frames set forth in 50 CFR part 402 and supplemental 
guidance provided in this Agreement, in order to enable EPA to meet 
statutory and regulatory deadlines under the CWA. EPA will strive to 
provide advance notice to the Services concerning anticipated 
consultations, to provide thorough biological evaluations, to comment 
promptly on draft opinions and to provide, where appropriate, 
additional available information requested by the Services.
    If during informal consultation EPA determines that the action is 
not likely to adversely affect listed species or critical habitat, then 
EPA will notify the Service in writing. The Service will respond in 
writing within 30 days of receipt of such a determination, unless 
extended by mutual agreement. The response will state whether the 
Service concurs or does not concur with EPA's determination. If the 
Service does not concur, it will provide a written explanation that 
includes the species and/or habitat of concern, the perceived adverse 
effects, supporting information, and a basic rationale.
    The Services may request that EPA initiate consultation on a 
Federal action. The Services do not have the authority, however, to 
require the initiation of consultation. The Services' written 
explanation of the request shall include the species and/or critical 
habitat of concern, manner in which there may be an effect, supporting 
information, and a basic rationale.
    The Services will strive to issue biological opinions within 90 
days of an initiation of formal consultation unless

[[Page 2750]]

the Services and EPA agree to extend the consultation period. The 
timing of activities during consultation may be further expedited as 
necessary taking into account legal deadlines for EPA action and the 
agencies' programmatic needs. EPA, where appropriate, will enter into 
early consultation with the Services in order to ensure that EPA meets 
its statutory CWA deadlines for decision-making. In addition, EPA and 
the Services agree to make every effort to provide prompt and 
responsive communications to ensure States, Tribes, and permit 
applicants do not suffer undue procedural delays.
7. EPA Responsibility at the Conclusion of Section 7 Consultation
    Following issuance of a biological opinion, EPA will determine 
whether and in what manner to proceed with the action in light of its 
CWA and section 7 obligations. If a jeopardy opinion is issued, EPA 
will notify the Services of its final decision on the action.
8. Reinitiation of Formal Consultation
    The section 7 regulations define conditions under which EPA or the 
Services will request reinitiation of formal consultation at 50 CFR 
402.16. The Services and EPA will work cooperatively to evaluate any 
new information to determine if reinitiation is necessary.

C. Proposed Species and Proposed Critical Habitat

    The Services will identify proposed species and proposed critical 
habitat to EPA Regional offices. EPA will evaluate any CWA activities 
it authorizes, funds, or carries out that are subject to section 7 and 
determine if they are likely to jeopardize proposed species or result 
in the destruction or adverse modification of proposed critical 
habitat. If so, EPA will confer with the Services using the procedures 
under 50 CFR 402.10. The Services may also initiate a request for 
conference on a particular action.

D. Recovery Program

    Section 7(a)(1) of the ESA provides that Federal agencies shall 
utilize their authorities in furtherance of the purposes of the ESA by 
carrying out programs for the conservation and recovery of threatened 
and endangered species. Section 7 consultation and the recovery 
planning and implementation process are two primary mechanisms that EPA 
can use as guides to identify actions that EPA or the Services believe 
are needed to protect and recover Federally-listed species.
1. Conservation Recommendations to Assist Recovery
    The section 7 consultation process is primarily intended to ensure 
that EPA's actions are not likely to jeopardize the continued existence 
of Federally-listed species or adversely modify their critical habitat. 
However, biological opinions may contain discretionary conservation 
recommendations to promote the recovery of the subject species. (50 CFR 
402.02 defines conservation recommendations as suggestions of the 
Services regarding the development of information or discretionary 
measures to minimize or avoid adverse effects of a proposed action on 
listed species or critical habitat.) Implementation of these 
conservation recommendations would help conserve and recover listed 
species.
    Frequent and informal contact between the Services and EPA is 
encouraged during all stages in the development of conservation 
recommendations. During section 7 consultation, the Services will work 
closely with EPA to identify conservation recommendations and evaluate 
the feasibility of their implementation.
2. Recovery Planning
    Recovery plans are developed in three stages: (a) Technical drafts 
that are intended to provide agencies an opportunity to assist the 
Services in developing biologically sound recovery plans; (b) Agency 
drafts which outline the various tasks the Services feel may be within 
the jurisdiction of other agencies and are circulated for public 
comment (the Technical and Agency Draft are sometimes combined into one 
document to save time); and (c) the final plan.
    The Services will invite EPA to serve as members of Recovery Teams 
where water quality is a concern or EPA has particular expertise, 
provide to EPA copies of all draft recovery plans that contain water 
quality related recovery tasks, and actively solicit EPA's involvement 
during all phases of recovery plan development. The Services will also 
solicit State or Tribal involvement, where appropriate. EPA will 
provide the Services with comments related to water quality threats, 
recovery issues, and will suggest areas where plans could be modified 
to include specific actions to support the species recovery effort.
3. Recovery Implementation
    EPA and the Services will hold recovery planning/implementation 
discussions or meetings, on at least an annual basis. The members of 
this group and the geographic area covered by this group will vary 
among Regions, depending on the geographic range and number of species 
impacted by water quality. The meetings could be organized on a 
watershed or ecosystem basis and involve field and/or Regional 
personnel. These groups will discuss current and upcoming water 
quality/listed species related activities, and provide input for 
prioritizing watersheds (e.g., the number of listed species, the 
seriousness of threats, and the opportunities for conservation/recovery 
success) for potential future coordinated activities.

E. Candidate Conservation Activities

    The Services and EPA will develop watershed and ecosystem based 
initiatives to identify and remove those conditions that may lead to 
future listings. Efforts should focus on candidate species and other 
species of concern and their associated ecosystems. The local/regional 
coordinating teams will identify specific focus areas.

VI. National Level Activities to Ensure Protection of Species

    EPA will take the following steps at the national level to ensure 
that State and Tribal permitting programs and water quality standards 
provide protection for endangered and threatened species.

A. National Rule-making

    EPA will propose amendments to its national water quality standards 
regulations (40 CFR part 131) to include provisions to ensure the 
protection of endangered and threatened species within 24 months 
following the execution of this Agreement. EPA will propose to require 
that water quality not likely jeopardize the continued existence of 
endangered or threatened species or result in the destruction or 
adverse modification of designated critical habitat, including a 
prohibition of mixing zones or variances that would be likely to cause 
jeopardy, and a requirement that States or Tribes adopt site-specific 
water quality criteria (tailored to the geographic range of the species 
of concern) where determined to be necessary to avoid a likelihood of 
jeopardy.
    After consideration of public comment, EPA will adopt appropriate 
provisions in a final regulation.

[[Page 2751]]

B. Development of New Water Quality Criteria Methodological Guidelines

    EPA will continue to invite the Services to be represented on EPA's 
Aquatic Life Criteria Guidelines Committee. EPA has charged this 
committee with revising and updating EPA's methodological guidelines 
for issuance of new 304(a) water quality criteria guidance values. As 
members of the committee, the Services and EPA will ensure that these 
methodological guidelines take into account the need to protect 
Federally-listed species. The Services will assist EPA to (1) develop 
and have peer reviewed a list of surrogate and target endangered and 
threatened species that could be used in pollutant toxicity testing and 
(2) assist in the development of biocriteria for streams, rivers, 
lakes, wetlands, estuaries or marine waters that contain endangered and 
threatened species or designated critical habitat.
    These methodological guidelines are subject to peer review, public 
notice and comment prior to being finalized. Prior to the public 
comment period, the Directors will provide the Services' views 
regarding the guidelines so that the public will have the benefit of 
the Services' views during the comment period. The Services will also 
be invited to participate in the peer review process for the 
development of new criteria values under section 304(a), and will 
designate technical experts to provide the Services' views during the 
peer review process.

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

1. Overview
    Under section 304(a) of the CWA, EPA from time to time publishes 
water quality criteria that serve as scientific guidance to be used by 
States or Tribes in establishing and revising water quality standards. 
These criteria are not enforceable requirements, but are recommended 
criteria levels that States or Tribes may adopt as part of their 
legally enforceable water quality standards. States or Tribes may, 
however, adopt other scientifically defensible criteria in lieu of 
EPA's recommended criteria (see 40 CFR 131.11(b)). EPA has to date 
published criteria for the protection of aquatic life for 45 
pollutants. EPA has developed an interim-final ``Water Quality Criteria 
and Standards Plan'' (EPA, June 1998) to guide the development and 
implementation of new or modified 304(a) criteria in the coming years.
    The objective of EPA's criteria program is to provide scientific 
information to States and Tribes that will best facilitate the overall 
protection of the aquatic ecosystem. A better understanding of the 
effects of water pollution on endangered and threatened species will 
help achieve this objective. Therefore, EPA and the Services will 
conduct a section 7 consultation on the aquatic life criteria to assess 
the effect of the criteria on listed species and designated critical 
habitat. EPA and the Services will also conduct a conference regarding 
species proposed for listing and proposed designated critical habitat. 
EPA will consider the results of this consultation as it implements and 
refines its criteria program, including decisions regarding the 
relative priorities of revising existing criteria and developing new 
criteria.
    EPA and the Services have gained considerable experience in 
evaluating the potential effects on endangered and threatened species 
of pollutants for which EPA has published recommended aquatic life 
criteria under section 304(a) of the CWA. For example, the Services 
have issued biological opinions as a result of section 7 consultations 
on aquatic life criteria approved by EPA in water quality standards 
adopted by the States of New Jersey, Alabama, and Arizona, and 
promulgated by EPA for the Great Lakes Basin. EPA is currently 
conducting consultation with the Services regarding aquatic life 
criteria being promulgated by EPA for toxic pollutants for certain 
waters in California. These opinions have evaluated (or are evaluating) 
the effects of criteria pollutants on 87 aquatic species, which 
constitute approximately 42% of listed aquatic species in the country. 
Grouped by taxonomic family, these consultations have evaluated the 
effects of criteria pollutants on one or more species in approximately 
65% of those families to which listed aquatic species belong. In 
addition to these comprehensive formal consultations, EPA and the 
Services have also conducted informal consultations on State water 
quality standards approval actions which have covered water quality 
criteria contained in the standards.
    EPA and the Services recognize, however, that conducting 
consultations on a State-by-State basis is not the most efficient 
approach to evaluating the effects of water pollution on endangered and 
threatened species throughout the country. A national consultation will 
ensure a consistent approach to evaluating the effects of pollutants on 
species and identifying measures that may be needed to better protect 
them. A national consultation will also ensure better consideration of 
effects on species whose ranges cross State boundaries.
2. Procedures for Consultation
    The consultation will be conducted in accordance with the 
procedures in 50 CFR part 402 and the guidance contained in the 
Services' Consultation Handbook. EPA and the Services also anticipate 
that the consultation will follow the basic approach described below. 
The agencies will endeavor to streamline their processes to complete 
this consultation within eighteen months.
    EPA and the Services anticipate that the national consultation will 
focus on aquatic and aquatic-dependent species. The consultation will 
be conducted on a national basis, and therefore, will not be waterbody-
specific. In addition, given the numbers of species involved in the 
consultation, the effects on species will be evaluated to the maximum 
extent possible based on groupings of species believed to be affected 
in a similar manner.
    The agencies will take a collaborative approach to evaluating the 
effects of the criteria pollutants on listed species, and joint teams 
will be established to conduct the consultation. With input from the 
Services, EPA will prepare a biological evaluation based on the best 
scientific and commercial data available, and will provide a rationale 
for any findings regarding the effects of the criteria pollutants on 
listed species. EPA will make ``effects determinations'' based on the 
direct and indirect effects of the 45 pollutants on listed species. EPA 
will evaluate the effects of pollutants on species in the water column 
based upon the available toxicological data, principally the data 
assembled in EPA's criteria development documents as well any more 
recent toxicological information. EPA will consider other exposure 
scenarios to aquatic and aquatic-dependent species and provide 
available information to the Services.
    The Services will work collaboratively with EPA in developing their 
biological opinion, including the development of any reasonable and 
prudent measures or alternatives to minimize anticipated incidental 
take or to avoid likely jeopardy to listed species or adverse 
modification or destruction of designated critical habitat. Any 
reasonable and prudent measures or alternatives that identify research 
needs will be mutually developed and will reflect priorities 
established by the national research and data gathering plan. Should 
the opinion call for revisions to existing criteria or issuance of new 
criteria, the opinion will recognize EPA's practice of subjecting new 
or revised criteria to public notice

[[Page 2752]]

and comment and external peer review prior to being finalized. EPA 
believes that the existing criteria provide a significant degree of 
protection for the aquatic ecosystem (including listed species). The 
agencies agree that, until any revisions of criteria are completed, the 
agencies will, to the maximum extent practicable, maintain the status 
quo by continuing to implement such criteria in water quality standards 
programs prior to revisions to the criteria.
    Because the effects of the criteria pollutants on certain listed 
species have already been evaluated in biological opinions issued by 
the Services, the agencies will rely upon the scientific information 
and conclusions in those consultations to the maximum extent possible. 
Such prior opinions will remain in effect unless consultation is 
reinitiated.
    The national consultation will provide section 7 coverage for any 
water quality criteria included in State or Tribal water quality 
standards approved, or Federal water quality standards promulgated, by 
EPA that are identical to or more stringent than the recommended 
section 304(a) criteria. Therefore, separate consultation on such 
criteria will not be necessary, subject to requirements related to 
reinitiation of consultation under 50 CFR 402.16. If, during the 
national consultation, EPA proposes to take an action approving or 
promulgating numeric standards that are identical to or more stringent 
than the existing 304(a) criteria, such action will be covered by the 
national consultation. EPA and the Services agree that EPA may proceed 
with its action pending the conclusion of the national consultation. 
EPA will ensure that its action does not have the effect of foreclosing 
the formulation or implementation of any reasonable and prudent 
alternatives in the national consultation by stating that EPA's action 
is subject to revision based on the results of the consultation.

VII. Joint National Research and Data Gathering Plan and Priorities

    EPA and the Services will convene a work group of scientific and 
technical personnel to develop a research and data gathering plan that 
supports water quality standards protective of species of concern and 
the ecosystems they inhabit. The goal of the plan is to identify high 
priority data and information needed to reduce uncertainty concerning 
the degree to which water quality criteria and permits are protective 
of endangered or threatened species. The plan also recognizes the 
agencies' joint interest in, and responsibility for, funding and 
conducting research related to endangered and threatened species. The 
information gathered as a result of this joint plan and the national 
consultation will be used by EPA in the revision or development of 
national 304(a) water quality criteria, in review of State and Tribal 
water quality standards, and the evaluation of permits. Similarly, the 
Services will use this information in assessing threats and minimizing 
adverse effects to listed species. The agencies agree that the plan 
should be completed, if possible, within eighteen months of the signing 
of this Agreement.
    The work group will primarily be concerned with three tasks: (1) 
development of the research plan, including the components identified 
below; (2) evaluating and prioritizing research or data gathering needs 
identified in consultations on EPA's review of specific State and 
Tribal water quality standards; and (3) overseeing and coordinating the 
implementation of the national research/data gathering plan.

A. Existing and New Water Quality Criteria

    The national research work group will identify those CWA section 
304(a) aquatic life criteria that are the highest priority candidates 
for additional research based on issues identified in consultations on 
State and Tribal water quality standards and the national consultation 
on the aquatic life 304(a) criteria published by EPA under section 
304(a) of the CWA.
    The work group will also identify the highest priority areas for 
the development of new national 304(a) water quality criteria to 
protect listed species. The work group will take into account new 
criteria development needs identified in consultations on State and 
Tribal water quality standards including, in particular, the priority 
to be given to the development of wildlife criteria for areas where 
such criteria have not been developed (i.e., outside the Great Lakes 
Basin).

B. Work Group Report to Agreement Signatories

    Within one year of signing this Agreement, the work group will 
submit a comprehensive report to the signatories of this Agreement (or 
their successors) that (1) summarizes the range of research options 
considered by the work group; (2) makes recommendations regarding 
priority research and data gathering undertakings for existing and new 
water quality criteria; (3) describes the recommended additional 
research; (4) estimates the likely cost of the research; (5) evaluates 
available funding for completing the research; and (6) establishes a 
specific time frame for completing the research and data gathering.

C. National Research and Data Gathering Plan

    After taking into account the recommendations of the work group, 
the signatories of this Agreement (or their successors) will adopt a 
national research and data gathering plan within eighteen months of the 
signing of this Agreement. The plan will identify near-term (1-5 years) 
priorities reflecting the highest priorities identified by the agencies 
that can be accomplished with available and anticipated funding 
sources. The plan will also identify longer term (5-10 years) 
priorities. The agencies will work to incorporate the plan into their 
respective budgets, and to achieve economies of scale and increased 
effectiveness in the use of limited funds by coordinating efforts 
wherever possible. The agencies will also work to coordinate the plan 
with the White House-sponsored Committee on the Environment and Natural 
Resources.

D. Consultation on State and Tribal Water Quality Standards

    On an ongoing basis, the work group will provide expertise and 
assistance to the field/regional offices regarding research/data 
gathering issues raised in consultations on State and Tribal water 
quality standards. Where such consultations identify significant 
research/data gathering priorities, those priorities will be forwarded 
for evaluation by the work group. With input from the regional/field 
offices, the work group will determine the priority of such research 
and data gathering in relation to other needs contained in the national 
plan. This process will enable the agencies to rationally allocate 
their resources as new research/data gathering needs arise.

VIII. Consultation on Water Quality Standards Actions

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

    EPA will communicate and, where required under section 7 of the 
ESA, consult with the Services on new or revised State or Tribal water 
quality standards and implementing procedures that are subject to EPA 
review and approval under section 303(c) of the CWA.
    If a State or Tribe requests, or upon mutual agreement, EPA may, by

[[Page 2753]]

notifying the appropriate Service(s) in writing, designate a State or 
Tribe to serve as a non-Federal representative to conduct informal 
consultation in accordance with 50 CFR 402.08.
1. Scoping of Issues To Be Considered During the Triennial Review 
Process
    Section 303(c) of the CWA requires States to adopt and revise 
standards at least on a triennial basis. The Services and EPA recognize 
that to accomplish timely implementation of standards that may affect 
Federally-listed species and designated critical habitat, early 
involvement and technical assistance by the Services is needed. In an 
effort to facilitate collaboration and the consultation process, EPA 
regional offices will provide the Services annually with a list of all 
upcoming scheduled triennial reviews for the next 5 year period.
    The Services will participate in a meeting with EPA and the State 
or Tribe to discuss the extent of an upcoming review. EPA will take the 
lead to schedule the meeting near the start of the triennial review 
process.
2. Development of State or Tribal Standards
    EPA will seek the technical assistance and comments of the Services 
during a State's or Tribe's development of water quality standards and 
related policies. The Services will provide the States or Tribes and 
EPA with information on Federally-listed species, proposed species and 
proposed critical habitat, and designated critical habitat in the State 
or on Tribal lands. EPA will provide assistance to the Services in 
obtaining descriptions of pollutants and causes of water quality 
problems within a watershed or ecosystem. The Services will work 
cooperatively with the States or Tribes to identify any concerns the 
Services may have and how to address those concerns. EPA will request 
the Services to review and comment on draft standards, and to 
participate in meetings with States or Tribes as appropriate. EPA will 
indicate which of these requests are of high priority, and the Services 
will make every effort to be responsive to these requests.
    Where appropriate, EPA and the Services will encourage the State or 
Tribe to adopt special protective designations where listed or proposed 
threatened or endangered species are present or critical habitat is 
designated or proposed.
    EPA will initiate discussions with the Services if there is a 
concern that a draft State or Tribal standard or relevant policy may 
impact Federally-listed species or critical habitat.
3. Adoption and Submittal of State or Tribal Standards
    States or Tribes adopt new and revised standards and implementing 
policies from time to time as well as at the conclusion of the 
triennial review period.
    After the final action adopting the standards, the State or Tribe 
sends its adopted and effective standards to EPA. Once received, EPA is 
required by the CWA to approve the standards within 60 days or 
disapprove them within 90 days. Section 7 consultation is required if 
EPA determines that its approval of any of the standards may affect 
listed species or designated critical habitat. The time periods 
established by the CWA require that EPA and the Services work 
effectively together to complete any needed consultation on a State's 
or Tribe's standards quickly. In order to provide enough time for 
consultation with the Services where the approval may affect endangered 
or threatened species, EPA will work with the State or Tribe with the 
goal of providing to the Services a final draft of the new or revised 
water quality standards 90 days prior to the State's or Tribe's 
expected submission of the standards to EPA. When needed, EPA will 
prepare a biological evaluation based on the final draft and, where 
appropriate, request formal consultation. The Services agree to consult 
on the final draft, and to accommodate minor revisions in the standards 
that may occur during the State's or Tribe's adoption process. The 
Services will make every effort to complete consultation and delivery 
of a final biological opinion within 90 days, or on a schedule agreed 
upon with the EPA Regional Office.
4. EPA Develops Biological Evaluation
    When needed, EPA will develop a biological evaluation to analyze 
the potential effect of any new or revised State or Tribe adopted 
standards that may affect Federally-listed species or critical habitat.
5. EPA Determination of ``No Effect'' or ``May Affect''
    EPA will evaluate proposed new or revised standards and use any 
biological evaluation or other information to determine if the new or 
revised standards ``may affect'' a listed species or critical habitat. 
For those standards where EPA determines that there is ``no effect,'' 
EPA may record the determination for its files and no consultation is 
required. Although not required by section 7 of the ESA for actions 
that are not major construction activities as defined by 50 CFR 402.02, 
EPA will share any biological evaluation, ``no effect'' determination, 
and supporting documentation used to make a ``no effect'' determination 
with the Services upon request.
    If EPA decides that the new or revised water quality standards 
``may affect'' a listed species, then EPA will enter into informal 
consultation (unless EPA decides to proceed directly to formal 
consultation) to determine whether the standards are likely to 
adversely affect Federally-listed species or critical habitat. If EPA 
determines that the species or critical habitat is not likely to be 
adversely affected, EPA will request the Service to concur with its 
finding.
    Where EPA finds that a species or critical habitat is likely to be 
adversely affected, EPA will consider, and the Services may suggest, 
modifications to the standards(s) or other appropriate actions which 
would avoid the likelihood of adverse effects to listed species or 
critical habitat. If the likelihood of adverse effects cannot be 
avoided during informal consultation, then EPA will initiate formal 
consultation with the Service or EPA may choose to disapprove the 
standard. In addition, if EPA finds that a proposed species is likely 
to be jeopardized or proposed critical habitat adversely modified by 
EPA approval of a new or revised State or Tribal standard, EPA will 
confer with the Services under 50 CFR 402.10.
6. Services' Review of ``Not Likely to Adversely Affect'' Determination
    Within 30 days after EPA submits a ``not likely to adversely 
affect'' determination, the Services will provide EPA with a written 
response on whether they concur with EPA's findings. The Services will 
provide EPA with one of the three following types of written responses: 
1) concurrence with EPA's determination (this would conclude 
consultation), 2) non-concurrence with EPA's determination and, if the 
Service cannot identify the specific ways to avoid adverse effects, a 
request that EPA enter into formal section 7 consultation (see 7 
below), or 3) a request that EPA provide further information on their 
determination. If it is not practicable for EPA to provide further 
information, the Services will make a decision based on the best 
available scientific and commercial information.
7. Formal Consultation
    Formal consultation on new or revised standards adopted by a State 
or Tribe will begin on the date the Services and EPA jointly agree that 
the information provided is sufficient to initiate consultation under 
50 CFR

[[Page 2754]]

402.14(c). The consultation will be based on the information supplied 
by EPA in any biological evaluation and other relevant information that 
is available or which can practicably be obtained during the 
consultation period (see 50 CFR 402.14 (d) and (f)).
    If the Service anticipates that incidental take will occur, the 
Service's biological opinion will provide an incidental take statement 
that will normally contain reasonable and prudent measures to minimize 
such take, and terms and conditions to implement those measures. 
Reasonable and prudent measures can include actions that involve only 
minor changes to the proposed action, and reduce the level of take 
associated with project activities. These measures should minimize the 
impacts of incidental take to the extent reasonable and prudent. 
Measures are considered reasonable and prudent when they are consistent 
with the proposed action's basic design, location, scope, duration, and 
timing. The test for reasonableness is whether the proposed measure 
would cause more than a minor change to the proposed action. 50 CFR 
402.14(I)(2).
    Appropriate minor changes can include, for example, a condition 
stating that the EPA Regional Office will work with the State or Tribe 
to obtain revisions to the water quality standards in the next 
triennial review. Where either of the Services believe that there is a 
need for the standards to be revised more quickly, the Service should 
work with EPA and the State or Tribe to determine whether any revisions 
could be developed more quickly than the next anticipated triennial 
review. Because reasonable and prudent measures should not exceed the 
scope of EPA actions, reasonable and prudent measures in a water 
quality standards consultation should not impose requirements on other 
CWA programs unless agreed to by both EPA and the Service(s).
    The Services may include research or data gathering undertakings as 
conditions of an incidental take statement contained in a biological 
opinion where it determines that the way to minimize future incidental 
take is through research and data gathering. However, to the maximum 
extent possible, the Services will work with EPA to identify research 
needs that will be addressed in the National Research and Data 
Gathering Plan. The Plan identifies high priority data and information 
needed to reduce the uncertainty inherent in the degree to which water 
quality criteria would protect listed species. Research and data 
identified in the Plan has the goal of minimizing any incidental take 
associated with water quality standards.
    Where site specific research or data are needed that are not 
addressed in the National Plan, the biological opinion will explain how 
the research or data gathering will minimize such take while not 
altering the basic design, location, scope, duration, or timing of the 
action.
    Where a regional EPA office finds that it is not practicable to 
complete the research or data gathering requested in the draft opinion, 
but the Services believe that inclusion of the research condition is 
important to minimizing incidental take, the Services may elevate the 
issue in accordance with the procedures in section V.A. of this 
Agreement. During the elevation process, the agencies will evaluate the 
need for the research identified by the Service in the water quality 
standards consultation in light of available resources and the National 
Plan.
    Reasonable and prudent measures and terms and conditions should be 
developed in close coordination with the EPA and the State or Tribe, to 
ensure that the measures are reasonable, that they cause only minor 
changes to the proposed action, and that they are within the legal 
authority and jurisdiction of the Agency to carry out. If the 
Service(s), EPA, and the States or Tribe cannot reach agreement on 
appropriate reasonable and prudent measures or terms and conditions at 
the level the consultation is being conducted, the decision can be 
elevated by the procedures discussed in section V.A.
    As a general matter, EPA disapproval of a State or Tribal water 
quality standard is not a minor undertaking because it triggers a legal 
duty on the part of EPA to initiate promptly Federal rule-making unless 
the State or Tribe revises the standard within 90 days (see CWA 
303(c)(3) and (4)). Where the Services and EPA agree, however, 
disapproval of a State or Tribal water quality standard may be included 
as a condition of incidental take authorization.
    The Services will issue a biological opinion that concludes whether 
any Federally-listed species are likely to be jeopardized or critical 
habitat adversely modified or destroyed by the State or Tribe's new or 
revised water quality standards. If either of the Services makes a 
jeopardy or adverse modification finding, it will identify any 
available reasonable and prudent alternatives, which may include, but 
are not limited to, those specified below. EPA will notify the Service 
of its final decision on the action.
    Some possible ideas for development of specific reasonable and 
prudent alternatives:
    a. EPA coordinates with the State or Tribe to adopt (or revise) 
water quality standards necessary to remove the jeopardy situation.
    b. EPA disapproves relevant portions of the State or Tribe's 
adopted standards (see 40 CFR 131.21) and initiates promulgation of 
Federal standards for the relevant water body (see 40 CFR 131.22). 
Where appropriate, EPA would promulgate such standards on an expedited 
basis.
    c. Using its authority under section 303(c)(4)(B) of the CWA, EPA 
promulgates Federal standards as necessary.
8. EPA Action on State or Tribal Standards
    After reviewing the biological opinion, EPA will inform the Service 
of its intended action.

B. Existing Water Quality Standards

    If the Services present information to EPA, or EPA otherwise has 
information supporting a determination that existing State or Tribal 
water quality standards are not adequate to avoid jeopardizing 
endangered or threatened Federally-listed species or adversely 
modifying critical habitat or for protecting and propagating fish, 
shellfish and wildlife, EPA will work with the State or Tribe in the 
context of its triennial review process to obtain revisions in the 
State or Tribal standards. Such revisions could include, where 
appropriate, adoption of site-specific water quality standards tailored 
to the geographic range of the species of concern. If a State or Tribe 
does not make such revisions, the EPA regional office will recommend to 
the EPA Administrator that a finding be made under section 303(c)(4)(B) 
of the CWA that the revisions are necessary.
    EPA will engage in section 7 consultation to ensure that any 
revisions to the existing standards are not likely to jeopardize the 
continued existence of endangered or threatened species or result in 
the destruction or adverse modification of designated critical habitat 
and to minimize any anticipated incidental take. If EPA and the 
Services disagree regarding the need for revisions in the State or 
Tribal standards, the issue may be elevated. Consultation will be 
consistent with the provisions of 50 CFR 402 and part A above.

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

    EPA promulgation of State or Tribal water quality standards is a 
Federal

[[Page 2755]]

rule-making process and EPA will comply with the consultation 
requirements of section 7 of the ESA with any promulgation.

IX. Permitting Program Activities

    This Agreement establishes a framework for coordinating actions by 
EPA and the Services for activities under the CWA section 402. These 
activities are: (1) EPA approval of State or Tribal permitting 
programs, (2) EPA review of permits issued by States or Tribes with 
approved permitting programs, and (3) EPA issuance of permits under 
section 402 of the CWA.

A. Programmatic Section 7 Consultation

    EPA and the Services will conduct a national programmatic 
consultation on whether the establishment of the procedures identified 
in section IX.B below is sufficient to avoid the likely jeopardy of 
listed species due to discharges authorized under State and Tribal 
NPDES programs. The consultation will be conducted in accordance with 
the procedures in 50 CFR part 402 and the guidance contained in the 
Services' Consultation Handbook.
    In its consultation request, EPA will provide the Services with a 
description of the CWA requirements applicable to the State and Tribal 
programs and EPA's program oversight authorities that are proposed to 
ensure that species will be protected, including the identification of 
State or Tribal water quality standards that ensure the protection of 
endangered and threatened species.
    If the Services anticipate that State/Tribal NPDES permits would 
cause incidental take of listed species, the agencies anticipate that 
the Services' opinion will authorize such take, except where the 
Service believes that the adverse effects of a permit are more than 
minor and, after elevation to headquarters, EPA chooses not to object 
to the permit under its CWA authorities. The Services anticipate that 
any incidental take authorization will apply to discharges authorized 
under permits issued after issuance of the biological opinion.
    The agencies anticipate that the Services' biological opinion will 
cover all existing State/Tribal NPDES programs and any State/Tribal 
program submitted after issuance of the biological opinion where EPA 
makes a written commitment to follow coordination procedures that the 
Services agree are consistent with the procedures contained in the 
biological opinion on the national consultation. The agencies will 
determine whether the opinion should also cover existing NPDES programs 
that have been subject to section 7 consultation.
    As new species are added to the list of threatened and endangered 
species, the Services will evaluate the impact of State or Tribal 
program assumption on the new species and determine whether 
reinitiation of consultation is warranted.

B. Coordination Procedures Regarding Issuance of State or Tribal 
Permits

    EPA has authority and responsibility for overseeing the operation 
of State/Tribal NPDES programs through, among other means, review of 
State/Tribal NPDES permits where appropriate. EPA's oversight includes 
consideration of the impact of permitted discharges on waters and 
species that depend on those waters. EPA does this by determining 
whether State or Tribal permits indeed attain water quality standards. 
The procedures outlined below are designed to assist EPA in fulfilling 
these CWA oversight responsibilities.
    EPA and the Services agree to follow the coordination procedures 
below with regard to EPA review of State or Tribal permits in all 
existing and new permitting programs approved by EPA under section 402 
of the CWA. Procedures and time lines for EPA review and objection to 
State or Tribal permits are established by statute and regulation. See 
CWA section 402(d); 40 CFR 123.44. Where EPA determines that exercise 
of its objection authority is appropriate to protect endangered and 
threatened species, the Agency will act pursuant to its existing 
authorities under the CWA (i.e., where the proposed permit would be 
``outside the guidelines and requirements'' of the CWA. See CWA 
402(d)(2)). EPA and the Services will follow the coordination 
procedures below in a manner consistent with these statutory and 
regulatory procedures:
    1. The Services will provide the States or Tribes with information 
on Federally-listed species and any designated critical habitat in the 
States or on Tribal lands, with special emphasis on aquatic and 
aquatic-dependent species.
    2. States are obligated under existing CWA regulatory authority 
requirements to provide notice and copies of draft permits to the 
Services. See 40 CFR 124.10(c)(1)(iv) and (e). EPA will exercise its 
oversight authority to ensure that States and Tribes carry out this 
obligation. EPA and the Services will work with States and Tribes to 
share information on permits that may raise issues regarding impacts to 
threatened or endangered species or designated critical habitat.
    3. If the Service or EPA is concerned that a NPDES permit is likely 
to have an adverse impact on a Federally-listed species or critical 
habitat, the Service or EPA will contact the appropriate State or 
Tribal agency (preferably within 10 days of receipt of a notice of a 
draft State or Tribal permit) to discuss identified concerns. The 
Service or EPA will provide appropriate information in support of 
identified concerns. The Services and EPA will provide copies to each 
other of comments made to States or Tribes on issues related to 
Federally-listed species.
    4. If unable to resolve identified issue(s) with the State or 
Tribe, the Service will contact the appropriate EPA Regional Branch not 
later than five working days prior to the close of the public comment 
period on the State's or Tribe's draft NPDES permit. Telephone contacts 
should be followed by written documentation of the discussion with EPA 
and include or reference any relevant supporting information.
    5. If contacted by the Services, EPA will coordinate with the 
Services and the State or Tribe to ensure that the permit will comply 
with all applicable CWA requirements, including State or Tribal water 
quality standards, which include narrative criteria prohibiting toxic 
discharges, and will discuss appropriate measures protective of 
Federally-listed species and critical habitat.
    6. EPA may make a formal objection, where consistent with its CWA 
authority, or take other appropriate action, where EPA finds that a 
State or Tribal NPDES permit will likely have an adverse effect on 
Federally-listed species or critical habitat.
    For those NPDES permits with adverse effects on Federally-listed 
species or critical habitat that are minor, it is the intention of the 
Services and EPA that the Services will work with the State or Tribe to 
reduce the adverse effects stemming from the permit. For those NPDES 
permits that have adverse effects on Federally-listed species or 
critical habitat that are more than minor, including circumstances 
where the discharge fails to ensure the protection and propagation of 
fish, shellfish and wildlife, and where the State or Tribe and the 
Services are unable to resolve the issues, it is the intention of the 
Services and EPA that EPA would work with the State or Tribe to remove 
or reduce the adverse impacts of the permit, including, in appropriate 
cases, by objecting to and Federalizing the permit where consistent 
with EPA's CWA authority.
    EPA will use the full extent of its CWA authority to object to a 
State or Tribal permit where EPA finds (taking into account all 
available information,

[[Page 2756]]

including any analysis conducted by the Services) that a State or 
Tribal permit is likely to jeopardize the continued existence of any 
listed species or result in the destruction or adverse modification of 
critical habitat.

    Note: EPA may review or waive review of draft State or Tribal 
NPDES permits (40 CFR 123.24(d)). EPA will work with the Services 
through the local/regional coordinating teams to help determine 
which categories of permits should be reviewed for endangered 
species concerns. If EPA finds that a draft permit has a reasonable 
potential to have more than a minor affect on listed species or 
critical habitat, and review of a draft permit has been waived, EPA 
will withdraw this waiver during the public comment period (see 40 
CFR 123.24(e)(1)).

    7. If EPA objects to a NPDES permit under paragraph 6 above, EPA 
will follow the permit objection procedures outlined in 40 CFR 123.44 
and coordinate with the Services in seeking to have the State or Tribe 
revise its permit. A State or Tribe may not issue a permit over an 
outstanding EPA objection. If EPA assumes permit issuing authority for 
a NPDES permit, EPA will consult with the Service prior to issuance of 
the permit (as a Federal action) as appropriate under section 7 of the 
ESA.
    8. In the case of State or Tribal permits that have already been 
issued, if the Services identify a permitted action which is likely to 
have an adverse effect on Federally-listed species or critical habitat, 
then the Services will contact the State or Tribe to seek to remedy the 
situation. EPA will provide support and assistance to the Services in 
working with the State or Tribe. Although EPA may, at the time of 
permit issuance, object to and assume permit-issuing authority for 
draft NPDES permits, EPA has no authority to require changes to an 
already-issued State or Tribal permit. EPA or the Services could 
request that the State or Tribe use State or Tribal authority to reopen 
an issued permit if it is likely to adversely affect Federally-listed 
species or critical habitat.

C. Issuance of EPA Permits

    EPA issuance of a permit is an action subject to section 7 
consultation if it may affect listed species or critical habitat. EPA 
will meet ESA requirements as provided in 40 CFR 122.49(c) on the 
issuance of individual and general NPDES permits, and 50 CFR part 402. 
If consultation has been completed on State or Tribal water quality 
standards and the NPDES permit conforms with those standards, then any 
ESA section 7 review process should be simplified.
    EPA will assure that all permits ensure the attainment and 
maintenance of State or Tribal water quality standards, including those 
that have been the subject of consultation or have been determined to 
have ``no effect'' on listed species and critical habitat.
    EPA and the Services agree to coordinate as follows in the review 
of EPA-issued permits.
    1. The Services will provide to EPA, when requested, information 
regarding the presence of Federally-listed species, critical habitat, 
proposed species and proposed critical habitat, including species 
lists, maps, and other relevant information.
    2. EPA will review permit applications and other available 
information (including that previously provided by the Services) to 
determine if issuance of a permit may affect any Federally-listed 
species or critical habitat. If EPA makes a ``no effect'' finding, EPA 
will document this determination in the permit record before public 
notice. EPA will also determine whether proposed species are likely to 
be jeopardized or proposed critical habitat adversely modified. EPA 
will provide the Services with the public notice of the proposed permit 
and EPA's determination of no effect. During the 30-day public comment 
period, the Services may submit comments on EPA's determination. The 
Services may request initiation of consultation on Federally-listed 
species or critical habitat or conference on proposed species if it 
believes the proposed action may affect listed species.
    3. If EPA determines that the permitted action may affect 
Federally-listed species or critical habitat, EPA will initiate either 
informal or formal consultation. If EPA determines that the permitted 
action is likely to jeopardize proposed species or adversely modify 
proposed critical habitat, a conference will be initiated.
    4. In consultations involving permits, any reasonable and prudent 
measures (associated with an incidental take statement) will specify 
the measures considered necessary or appropriate to minimize takings. 
The Services will describe such measures. EPA may delegate the terms 
and conditions of the incidental take statement to permittees. The 
Services will rely on EPA to retain the responsibility to ensure the 
terms and conditions are carried out. This approach will be reflected 
in the Services' incidental take statements. Monitoring reports to 
ensure implementation of reasonable and prudent measures and terms and 
conditions will be made available to the Services by EPA in accordance 
with the terms of the incidental take statement.
    Reasonable and prudent measures and terms and conditions should be 
developed in close coordination with the EPA to ensure that the 
measures are reasonable, that they cause only minor changes to the 
proposed action, and that they are within the legal authority and 
jurisdiction of the Agency to carry out. If the Services and EPA cannot 
reach agreement on appropriate reasonable and prudent measures or terms 
and conditions at the level the consultation is being conducted, the 
decision can be elevated by the procedures discussed in section V.A.

D. Watershed Planning

    Whenever feasible and appropriate, the Services will participate 
early on in watershed planning processes. The active participation of 
the Services as a core stakeholder in the development of watershed or 
basin plans should reduce or eliminate the need for, or facilitate, 
consultation on EPA-issued permits and coordination on individual State 
or Tribal NPDES permits and other site-specific actions that are 
contemplated in watershed plans. Such participation should save the 
States, Tribes, EPA and Services time and resources while improving 
protection and recovery efforts for both listed and unlisted species.

X. Support in Administrative and Judicial Proceedings

    The Services agree to provide support when requested by EPA in 
defense of any requirements or actions adopted by EPA as a consequence 
of reasonable and prudent alternatives, measures or conservation 
recommendations rendered in biological opinions, or reasonable and 
prudent measures provided in incidental take statements. Such support 
in administrative and judicial proceedings will be subject to approval 
by the Department of the Interior's Office of the Solicitor or NOAA 
General Counsel's Office and EPA's General Counsel's Office.

XI. Revisions to Agreement

    EPA and the Services may jointly revise this document.

XII. Reservation of Agency Positions

    No party to this Agreement waives any administrative claims, 
positions, or interpretations it may have with respect to the 
applicability or the enforceability of the ESA or the CWA.

[[Page 2757]]

XIII. Obligation of Funds, Commitment of Resources

    Nothing in this Agreement shall be construed as obligating any of 
the parties to the expenditure of funds in excess of appropriations 
authorized by law or otherwise commit any of the agencies to actions 
for which it lacks statutory authority. It is understood that the level 
of resources to be expended under this Agreement will be consistent 
with the level of resources available to the agencies to support such 
efforts.

XIV. Nature of Agreement

    This memorandum is intended only to improve the internal management 
of EPA and the Services and is not intended to, and does not, create 
any right or benefit, substantive or procedural, enforceable at law or 
equity by a party against the United States, its agencies or 
instrumentalities, its officers or employees, or any other person.

XV. Effective Date; Termination

    This memorandum will become effective upon signature by each of the 
parties hereto. Any of the parties may withdraw from this Agreement 
upon 60 days' written notice to the other parties; provided that any 
section 7 consultation covered by the terms of this Agreement that is 
pending at the time notice of withdrawal is identified by the parties, 
and those activities covered by this Agreement that begin the 
consultation process prior to and within the 60-day notice period, will 
continue to be covered by the terms of this Agreement.

XVI. Signatories [Reserved]

    Note: It is anticipated the following individuals will sign the 
final Agreement when it is executed: J. Charles Fox, Assistant 
Administrator for Water, U.S. Environmental Protection Agency; 
Donald J. Barry, Assistant Secretary for Fish and Wildlife and 
Parks, U.S. Department of the Interior; Terry D. Garcia, Assistant 
Secretary for Oceans and Atmosphere, U.S. Department of Commerce.

[FR Doc. 99-1029 Filed 1-14-99; 8:45 am]
BILLING CODE 6560-50-P