[Federal Register Volume 66, Number 36 (Thursday, February 22, 2001)]
[Notices]
[Pages 11202-11217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2170]



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Part II





Environmental Protection Agency

Department of the Interior





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Fish and Wildlife Service



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Department of Commerce





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National Oceanic and Atmospheric Administration



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

  Federal Register / Vol. 66, No. 36 / Thursday, February 22, 2001 / 
Notices  

[[Page 11202]]



ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[FRL-6937-6]


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

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

ACTION: Notice.

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

FOR FURTHER INFORMATION CONTACT: Brian Thompson, Standards and Health 
Protection Division (4305), U.S. EPA, Office of Science and Technology, 
1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 260-3809, 
[email protected]; Margaret Lorenz, Endangered Species 
Division, National Marine Fisheries Services, 1315 East West Highway, 
Silver Spring, MD 20910, (301) 713-1401, [email protected]; or 
Mary Henry, Division of Environmental Quality, Fish and Wildlife 
Service, 4401 N. Fairfax, Arlington, VA 22203, (703) 358-2148, 
[email protected].

SUPPLEMENTARY INFORMATION: On January 15, 1999, the Environmental 
Protection Agency (EPA), Fish and Wildlife Service (FWS) and National 
Marine Fisheries Service (NMFS) published for public comment a draft 
Memorandum of Agreement (MOA) addressing coordination under the Clean 
Water Act (CWA) and Endangered Species Act (ESA). 64 Fed. Reg. 2742. We 
have considered all the public comments submitted on the draft MOA, 
made revisions, and signed a final version of the document. Today's 
notice discusses comments we received on the draft MOA, summarizes the 
changes we have made, and publishes the final MOA.
    The MOA is designed to enhance coordination between our agencies so 
that we can best carry out our responsibilities under the CWA and ESA. 
In recent years, we have increasingly sought to integrate our programs. 
For example, EPA now consults with the Services under section 7 of the 
ESA on EPA's promulgation and approval of water quality standards under 
section 303(c) of the CWA and approval of State National Pollutant 
Discharge Elimination System (NPDES) permitting programs under section 
402(b). The MOA seeks to enhance the efficiency and effectiveness of 
consultations on these actions in the future by providing guidance to 
our regional and field offices and establishing an elevation process to 
resolve quickly issues that may arise. The MOA also seeks to enhance 
coordination at the national level by, among other things, establishing 
a joint national research plan that will prioritize research on the 
effects of water pollution on endangered and threatened species. We 
believe that the MOA will help make our work together more productive 
and timely, to the benefit of endangered and threatened species and the 
aquatic environment generally, as well as the regulated community and 
State and Tribal coregulators.
    The provisions of the ESA, CWA and our regulations described in the 
MOA contain legally binding requirements. The MOA itself does not 
alter, expand, or substitute for those provisions or regulations, nor 
is it a regulation itself. Thus, it does not impose legally-binding 
requirements on EPA, States,\1\ Tribes,\2\ or the regulated community. 
Rather, the MOA contains internal procedural guidance to our staff to 
assist us in carrying out existing legal requirements. Based on 
experience in implementing the MOA, we may change the MOA in the 
future.
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    \1\ For purposes of the MOA, ``States'' mean States, Territories 
and Commonwealths that qualify as States for the programs covered by 
the Agreement.
    \2\ For purposes of the MOA, ``Tribes'' mean those Tribes that 
are authorized for treatment as States for the programs covered by 
the Agreement. See CWA 518(e).
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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, ensure 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 
conferencing are codified at 50 CFR part 402. The ESA also makes it 
unlawful for any person to ``take'' any fish or wildlife species that 
is listed under the Act. ESA 9(a)(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

[[Page 11203]]

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. Overview of Public Comments

    EPA and the Services received comments from individuals, private 
industry, environmental organizations and other governmental agencies 
on the draft MOA. We have not attempted below to summarize or address 
the detailed contents of each of the public comments. We have, however, 
considered each of the comments in developing the final MOA. We address 
in this notice the major themes and concerns raised by the public 
comments.
    Many commenters supported the MOA's goal of fostering early input 
by the Services into decision-making under the CWA standards and 
permitting programs. These commenters believed integrating the Services 
early into existing regulatory processes would help ensure species 
protection issues are addressed effectively and in a timely manner. 
Many commenters expressed concern, however, that the MOA would increase 
burdens on States and viewed the MOA as seeking to shift EPA's section 
7 consultation responsibilities to States. Some commenters supported 
our proposed plan to conduct national programmatic consultations on 
water quality criteria and permit oversight procedures as likely to 
reduce the redundancy of State-by-State consultation. Others commenters 
believed that these programmatic consultations would be inappropriate 
and inconsistent with the requirements of the ESA. Finally, some 
commenters believed that the MOA failed to focus adequately on EPA's 
responsibility under section 7(a)(1) of the ESA to utilize its 
authorities to carry out programs for the conservation of listed 
species.
    We continue to believe that early involvement of the Services in 
CWA activities is important to ensuring that species protection 
concerns are addressed effectively in the water quality standards and 
permitting programs. The Services have substantial expertise that can 
help improve decision-making by EPA, States and Tribes. Obtaining their 
expertise early in the regulatory process helps ensure that their views 
are meaningfully considered, and that the broadest range of management 
options are available to ensure the protection of species.
    This does not mean, however, that the MOA calls for States and 
Tribes to ``consult'' with the Services under section 7 of the ESA, or 
that burdens in administering their programs will be increased. The MOA 
cannot, and does not, impose any requirements of section 7 on States 
and Tribes. Those requirements apply solely to Federal agencies, and 
EPA continues to be responsible for fulfilling any applicable 
requirements of section 7 in its administration of the CWA. (While 
States and Tribes may choose to function as ``non-federal 
representatives'' for purposes of informal consultation pursuant to 50 
CFR 402.18, the responsibility for compliance with section 7 remains 
with EPA.)
    Moreover, the MOA does not address in any way the obligations of 
States and Tribes under the CWA or the ESA, other than to note in a few 
instances requirements of existing laws and regulations. See, e.g., 
section IX.A. paragraph 2 (noting State/Tribal obligation under EPA CWA 
regulations to provide copies of draft NPDES permits to the Services). 
Thus, while the MOA should facilitate greater interaction between the 
Services and States/Tribes, it does not change the legal requirements 
that States or Tribes must meet in adopting water quality standards or 
in issuing NPDES permits, and does not require States or Tribes to 
perform any information-gathering or other analyses that would not be 
required under existing legal requirements. Rather, the MOA is intended 
to enhance communication between the Services, EPA and States/Tribes 
about how to ensure that water quality standards and NPDES permits will 
protect endangered and threatened species. In response to comments that 
the national consultations are inappropriate or inconsistent with the 
ESA, we will conduct the consultations in accordance with all 
applicable requirements of the ESA and 50 CFR part 402.
    Finally, we agree with the comment that the MOA should put greater 
emphasis on the development of programs by EPA, in consultation with 
the Services, for the conservation of listed species under section 
7(a)(1) of the ESA. The CWA is a powerful vehicle for improving the 
quality of the aquatic environment on which many endangered and 
threatened species depend. EPA's mission under the CWA includes 
reducing the risks to aquatic

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life and wildlife due to water quality degradation. Reducing those 
risks can also help facilitate the recovery of listed species. While 
the MOA will help ensure that EPA actions meet the substantive 
requirements of section 7(a)(2) of the ESA, we believe the MOA should 
also help identify affirmative steps under section 7(a)(1) of the ESA 
that EPA can take pursuant to its CWA authorities to facilitate the 
recovery of listed species. We have made appropriate additions to the 
MOA in this respect, which are noted in the discussion below.

III. Summary of the Final MOA

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

A. Interagency Coordination and Elevation

    One of the most important objectives of the MOA is to 
institutionalize strong working relationships among our regional and 
field offices who have day-to-day responsibility for administering our 
programs. Ongoing planning and collaboration at the regional/field 
level are essential to carrying out our programs effectively. 
Therefore, the MOA directs our staff to establish local/regional review 
teams that will meet periodically to identify upcoming priorities and 
workload requirements and generally ensure close coordination on the 
full range of activities involving water quality and endangered/
threatened species protection. These teams will also develop procedures 
for working with States and Tribes on these matters. We have added 
language to the MOA stating that the regional review teams should also 
provide assistance to the interagency oversight panel in conducting a 
proactive conservation review that will identify ways in which EPA can 
more fully utilize its authorities for the conservation of listed 
species.
    We also believe that effective coordination among senior managers 
at the regional level is vital to maintaining effective working 
relationships. Therefore, in addition to directing regional staff and 
day-to-day managers to meet on a regular basis through the regional 
review teams, we have added to the MOA a directive that EPA and Service 
regional senior managers (e.g., Regional Administrator or Division 
Director from EPA, Regional Director or Assistant Regional Director 
from the FWS, Assistant Regional Administrator for NMFS) meet at least 
annually to review on a programmatic basis ongoing work between our 
agencies. These meetings will focus on establishing overall priorities, 
assessing resource needs and providing direction to mid-level managers 
and staff.
    The draft MOA also included a procedure for elevating issues that 
may arise among our regional and field offices. We have included the 
elevation procedure in the final MOA with certain revisions. First, one 
commenter believed that the proposed elevation process applied only to 
disagreements that may arise in formal section 7 consultations, and 
requested clarification of the scope of issues addressed by the 
elevation procedure. We did not intend to use the elevation process 
solely for issues arising in formal section 7 consultations. It is 
available to resolve disagreements arising in formal or informal 
consultations, or other areas of cooperation, such as EPA oversight of 
State/Tribal NPDES permits. Moreover, because the elevation procedure 
is generic, we intend to make it available for any issues arising with 
regard to section 7 consultations on EPA actions under the CWA in areas 
not specifically addressed by the MOA. The purpose of the elevation 
procedure is to help us reach informed and timely decisions, and making 
this procedure available whenever we are engaged in the section 7 
process with regard to EPA actions under the CWA will help achieve this 
objective. The procedures may be used to review matters such as the 
content or supporting analyses of biological evaluations prepared by 
EPA or biological opinions prepared by the Services. However, the 
elevation process does not impair in any way the ultimate authority of 
EPA or the Services to issue decisions or render determinations that 
are within each agency's authority under the CWA and the ESA.
    Also, to make the elevation process more workable, we have reduced 
the number of steps involved in the elevation at the regional level. In 
the final MOA, the first step in any elevation will be to raise an 
issue to our regional directors/administrators, rather than requiring 
an intermediate step of elevating the issue to mid-level managers. This 
revision recognizes that mid-level managers are typically involved in 
issues on an ongoing basis, and that these managers should seek to 
resolve issues informally if possible. By eliminating a step in the 
elevation process, the final MOA will also help speed resolution of 
issues should elevation be necessary. Much of the MOA is designed, 
however, to enhance early and ongoing collaboration among our agencies. 
We continue to believe that issues should be resolved at the lowest 
levels possible, and enhanced coordination should reduce the likelihood 
that elevation will be needed.
    Some commenters suggested that the results of decisions in an 
elevation be documented so that they could serve as guidance in other 
similar circumstances. The agencies will memorialize the results of the 
elevation in writing where determined to be appropriate (e.g., where 
the results of the elevation would provide useful guidance to agency 
staff).
    We have also retained in the final MOA an oversight panel that will 
consist of regional and headquarters personnel to provide oversight and 
coordination on all aspects of the agreement. In addition, we have 
amended the draft MOA to specify that the oversight panel, with input 
from the regional review teams will conduct a ``proactive conservation 
review'' (see section V(A)(3)(7)) under section 7(a)(1) of the ESA 
regarding EPA's authorities and identify ways that EPA can more fully 
utilize those authorities to carry out programs for the conservation of 
listed species.

B. National Level Activities

    The draft MOA included four national level activities to help 
better integrate our programs: (1) A water quality standards 
rulemaking; (2) development of new water quality criteria 
methodological guidelines; (3) national consultations on EPA's section 
304(a) aquatic life water quality criteria recommendations and on 
procedures to ensure State/Tribal NPDES permits protect listed species, 
and (4) a joint national research and data gathering plan. The final 
MOA retains these components basically as contained in the draft MOA, 
with some changes, in particular with regard to the national 
consultations, and those changes, as well as relevant public comments, 
are discussed below.
1. Water Quality Standards Rulemaking
    The draft MOA indicated that EPA would propose to amend EPA's water 
quality standards regulations to provide that water quality shall be 
not likely to jeopardize the continued existence of a listed species. 
We stated that such a rule would essentially codify existing protection 
for endangered and threatened species under the CWA since water quality 
that is so poor it would likely jeopardize a listed species or destroy 
or adversely modify critical habitat fails to meet the fundamental 
requirements of the CWA.

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    Several commenters believed that this rule would be inconsistent 
with the CWA because it would remove the flexibility of States and 
Tribes under section 303(c)(2)(A) to establish use designations based 
on the uses that are attainable in the waterbody. EPA and the Services 
do not believe that flexibility will be removed from the States and 
Tribes to change use designations with use attainability analyses. Any 
changes in use designations must comply with the long-standing 
requirements in 40 CFR part 131. Further, any changes in use 
designations must be approved by EPA under section 303(c) of the CWA. 
These approvals are subject to the requirements of section 7 of the 
ESA. With the early coordination envisioned by the Services and EPA to 
address listed species needs during triennial reviews, more species-
specific and site specific information and expertise will complement 
defensible use attainability analyses performed by the States and 
Tribes. Justifiable changes can be still made after taking into account 
the needs of listed species.
2. Development of New Water Quality Criteria Methodological Guidelines
    The final MOA provides that the Services will participate in EPA's 
development of new methodological guidelines for the development of 
aquatic life criteria under section 304(a) of the CWA. We received no 
significant comments on this provision, which is unchanged from the 
January 1999 draft MOA.
3. National Consultations
    The draft MOA described national consultations that EPA and the 
Services intended to undertake regarding EPA's water quality criteria 
for the protection of aquatic life that EPA has published under section 
304(a) of the CWA, and on procedures in the MOA to ensure that State/
Tribal NPDES permits will protect listed species. As discussed further 
below, we have decided to delete the provision for a national permits 
consultation from the MOA, and have modified in certain respects the 
discussion of the national criteria consultation.
    With regard to the national permits consultation some commenters 
questioned whether the granting of an exemption from incidental take 
prohibitions would be appropriate through an incidental take statement 
issued at the national level without consideration of site-specific 
circumstances. Other commenters were unclear as to the effect that such 
a consultation would have on existing state NPDES programs, and were 
concerned that the agencies not ``reopen'' those programs through the 
national consultation.
    We have considered these comments and have had further interagency 
discussions of the merits of this programmatic consultation on the 
permitting procedures. We have decided to delete the discussion of that 
consultation from the final MOA and, at this time, do not intend to 
undertake such a consultation on permitting procedures. Our decision 
not to conduct a national programmatic consultation does not affect our 
commitment to follow the procedures in section IX of the MOA for 
coordination with regard to oversight of State/Tribal NPDES permits. 
Those procedures are designed to share information that will assist 
permitting authorities in meeting CWA requirements, including the 
protection of listed species. They describe those circumstances where 
EPA would use its oversight authorities to ensure these requirements 
and objectives are met.
    EPA's current practice is to consult with the Services where EPA 
determines that approval of a State's or Tribe's application to 
administer the NPDES program may affect federally listed species. We 
will continue to conduct such consultations on a case-by-case basis. 
Where formal consultation is undertaken, a biological opinion issued by 
the Service(s) would include an incidental take statement in accordance 
with section 7 of the ESA and 50 CFR Part 402. In addition, as 
discussed elsewhere in today's notice and in the final MOA, EPA 
consults with the Services regarding its approval of new and revised 
water quality standards that may affect listed species, and any 
biological opinion issued as a result of such a consultation would 
include an incidental take statement in accordance with section 7 of 
the ESA and 50 CFR Part 402.
    With regard to the national criteria consultations, States 
generally supported our undertaking such consultations as it would 
streamline the water quality standards adoption and approval process at 
the State level, and avoid duplication of effort involved in consulting 
on a State-by-State basis. Other commenters stated that EPA should not 
consult on the section 304(a) criteria because they are not an agency 
``action'' under section 7. Still others believed that national 
consultations on aquatic life criteria would not be based on the ``best 
available information'' as required by section 7 of the ESA. EPA and 
the Services have agreed, however, that it is appropriate to conduct 
these consultations pursuant to section 7(a)(2) for 304(a) aquatic life 
criteria to ensure the protection of listed species. Moreover, we fully 
intend to base consultations on the ``best available information,'' as 
required by section 7, and do not believe that this requirement 
precludes us from conducting the consultations on a national basis.
    Some commenters contended that we should not consult on existing 
aquatic life criteria, since they are based on old methodologies and 
that EPA should consult instead only on new criteria. We believe that 
consulting on EPA's existing section 304(a) aquatic life criteria is 
warranted because these criteria have been adopted by many States in 
their water quality standards, and this consultation will assist us in 
determining whether these criteria are protective of endangered and 
threatened species. EPA will consider the results of the consultation 
in deciding whether more stringent criteria would be warranted to 
protect certain endangered or threatened species. EPA also intends to 
integrate the national consultation process with ongoing revisions to 
existing criteria that are underway, as well the development of new 
criteria.
    Commenters raised the additional concern that a national 
consultation was likely to lead to the development of overly stringent 
water quality criteria and that consultations should, therefore, 
continue to take place on a State level. We disagree, since EPA would 
revise the criteria if it determines that more stringent criteria were 
in fact needed to protect endangered and threatened species, regardless 
of whether the consultation occurred on a national or State/Tribal 
level. Moreover, revisions to the criteria guidance could be targeted 
to the waters within the geographic range of species of concern (e.g., 
through recommendations to adopt site-specific criteria). In this way, 
other waters not needing the additional level of protection would not 
be affected by the revisions.
    Other commenters raised the question whether, under section 7(d) of 
the ESA, EPA and States could continue to implement existing CWA 
requirements while the national consultations are ongoing. Section 7(d) 
prohibits federal agencies and a permit or license applicant, after 
initiation of consultation, from making an irretrievable or irrevocable 
commitment of resources that would preclude the formulation or 
implementation of alternatives identified in the consultation required 
to meet the requirements of section 7(a)(2) of the ESA. We disagree 
that the initiation of the national consultations on criteria would 
limit the ability of EPA, States or

[[Page 11206]]

Tribes to continue implementing existing requirements under the CWA. 
The water quality criteria guidance does not involve any irretrievable 
or irrevocable commitment of resources. The criteria guidance can, and 
will, be revised if as a result of the consultations a determination is 
made that revisions are necessary to comply with section 7(a)(2) of the 
ESA. Moreover, if in the future EPA proposes to undertake an action 
that is covered by the national consultations prior to the conclusion 
of these consultations (e.g., approval or promulgation of an aquatic 
life criteria identical to or more stringent than EPA's guidance 
value), EPA will make a determination of compliance with section 7(d) 
at that time based on the particular facts, recognizing that EPA 
retains the authority to require revisions to water quality and 
standards, and promulgate them if necessary. Finally, the aquatic life 
criteria guidance is fundamentally designed to ensure protection of the 
aquatic environment and we do not believe that section 7(d) of the ESA 
would impede their implementation pending completion of consultation.
    Since the draft of the MOA was published in January 1999, EPA and 
the Services have undertaken a series of meetings that have resulted in 
a broad agreement on the scientific and technical procedures for 
conducting the consultations. These meetings have led to a realistic 
assessment of the resources and time necessary to conduct the 
consultation, and to an understanding that the consultation should be 
phased and that priorities should be set to deal with the most 
important pollutants and issues first. As a result, the final MOA 
states that the consultation will be completed in an expedited manner, 
rather than the less flexible strict timetable of eighteen months 
contained in the draft MOA.
4. Joint National Research Plan
    The final MOA retains the draft MOA's provisions for the Agencies 
to establish a joint national research and data gathering plan for 
prioritizing and funding research on the effect of water pollution on 
listed species. We received no significant comments on this portion of 
the MOA, which is unchanged from the 1999 draft.

C. Oversight of State and Tribal Water Quality Standards

    We did not receive extensive comments on the provisions in the MOA 
related to oversight of State/Tribal water quality standards. Some 
commenters contended that EPA approval of water quality standards is 
not subject to section 7 of the ESA because EPA approval is non-
discretionary. EPA disagrees, since our decision as to whether a 
particular standard meets the requirements of the CWA involves the 
exercise of considerable judgment. We believe that where approval of 
new or revised standards may have an effect on a listed species or 
designated critical habitat, consultation under section 7(a)(2) is 
required. Other commenters argued that EPA should consult not only on 
new and revised standards, but also on existing water quality 
standards. EPA and the Services have agreed that where information 
indicates an existing standard is not adequate to avoid jeopardizing 
listed species, or destroying or adversely modifying designated 
critical habitat, EPA will work with the State/Tribe to obtain 
revisions in the standard or, if necessary, revise the standards 
through the promulgation of federal water quality standards under 
section 303(c)(4)(B) of the CWA. Some commenters said that it is not 
appropriate for EPA to compel a State to reopen an existing water 
quality standard to avoid ``jeopardy'' because that threshold is not 
contained in the CWA, and nothing in the CWA requires that water 
quality be improved whenever doing so would benefit listed species. 
Again, water-dependent endangered and threatened species are an 
important component of the aquatic environment that the CWA is designed 
to protect, and steps to ensure the protection of those species are 
well within the scope of the CWA.
    After consideration of public comments on this aspect of the MOA, 
we have decided to retain the language of the 1999 draft MOA with no 
major substantive changes.

D. State/Tribal Permitting Programs

    The final MOA addresses the procedures that we will follow in 
overseeing the operation of State/Tribal NPDES permits to ensure that 
listed species and critical habitats are protected. Several commenters 
raised concerns that the coordination process described in the MOA was 
equivalent to the section 7 consultation process. This is incorrect. 
Section 7 consultations are governed by the specific procedures 
contained in 50 CFR part 402. The coordination procedures in the MOA do 
not track the consultation process. Rather, the coordination procedures 
simply outline the interaction that we envision between EPA, the 
Services and the State/Tribe should a particular permit raise issues of 
concern for listed species. The MOA also makes clear that EPA's 
oversight of State/Tribal permits will continue to be governed by EPA's 
CWA authorities. For example, EPA may only object to a permit that is 
``outside the guidelines and requirements'' of the CWA as provided in 
section 402(d) of the CWA. We are confident that EPA's CWA authorities 
are sufficiently broad and the MOA sufficiently flexible to address the 
broad range of situations that arise in the NPDES program.
    Some commenters expressed concerns that the permit coordination 
procedures not be used to ``force'' States and Tribes to undertake 
activities not otherwise required by the CWA. As stated previously, the 
MOA only provides internal procedural guidance for EPA and the Services 
and does not impose any requirements on States and Tribes. States and 
Tribes are specifically directed by current EPA regulations under the 
CWA to provide the Services with copies of draft NPDES permits, and 
they must consider and respond to any significant comments by any 
party, including comments provided by the Services. See 40 CFR 
Secs. 124.10(c)(iv) and (e); 124.11; 124.17. See also 40 CFR 
Sec. 124.59(b) and (c) (addressing consideration of Service comments 
and coordination between the permitting authority and the Services). 
The MOA does not augment these existing obligations, but is intended to 
facilitate the delivery of comments by the Services and EPA to States 
and Tribes, and the consideration of those comments in the permitting 
process.
    One commenter argued that the MOA was inconsistent with the 
decision in AFPA v. EPA 137 F.3d 291 (5th Cir. 1998) because, while it 
does not place conditions on approval of State NPDES programs, it 
nonetheless places conditions on ``approval'' of State permits. This 
contention is incorrect. First, EPA does not ``approve'' State/Tribal 
permits, but rather retains discretionary authority to comment upon and 
object to permits on a case-by-case basis. The MOA does not change the 
criteria under which EPA currently exercises that authority--i.e., 
whether a permit meets applicable CWA requirements--but simply ensures 
that EPA has the full benefit of the Services' views on potential 
impacts to Federally listed species and designated critical habitats in 
determining whether CWA requirements are met.
    Several commenters expressed concern that the permit coordination 
procedures did not recognize the importance of keeping permittees 
involved in the decision-making process. We believe that the permitting 
authority should always maintain open

[[Page 11207]]

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

IV. Conclusion

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

    Dated: January 10, 2001.
J. Charles Fox,
Assistant Administrator for Water, U.S. Environmental Protection 
Agency.
    Dated: January 17, 2001.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
    Dated: January 18, 2001.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Oceanic and Atmospheric 
Administration.
    The text of the final Memorandum of Agreement follows.

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

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
    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. Coordination Procedures Regarding Issuance of State or Tribal 
Permits
    B. Issuance of EPA Permits
    C. 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, and ``Tribes'' refers to Tribes that qualify for 
treatment in the same manner as States under section 518 of the CWA.

II. Goals and Objectives

    This Agreement is intended to accomplish the following:

--Use a team approach at the national, regional, and field office 
levels to restore and protect watersheds and ecosystems to achieve the 
goals of the ESA and CWA;
--Improve the framework for meeting responsibilities under section 7 of 
the ESA;
--Enhance the existing process in place to protect and recover 
Federally-listed and proposed species and the ecosystems on which they 
depend;
--Improve methods for coordinating compliance with sections 303(c) and 
402 of the CWA and section 7 of the ESA;
--Streamline the Federal agency coordination process to minimize the

[[Page 11208]]

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 affirm a 
partnership to enhance the realization of the goals of both Acts. This 
partnership will also seek to efficiently and effectively fulfill the 
requirements of section 7 of the ESA.
    The primary principle underlying this Agreement is cooperative 
partnership. The ESA requires the involvement of all Federal agencies 
in the protection and recovery of our Nation's unique biological 
resources. As a result of this Agreement, the signatory agencies will 
better coordinate their efforts and will make it easier for the 
regulated community and other partners to work with them in achieving 
the purposes of the CWA and ESA.
    While States and Tribes play a critical role in the administration 
and implementation of sections 303(c) and 402 of the CWA, they are not 
signatories to this agreement, which only addresses EPA's and the 
Services' responsibilities under section 7 of the ESA. The Services and 
EPA remain committed to working with the States and Tribes 
collaboratively at all levels to ensure that both the CWA and ESA are 
implemented in a manner that fulfills the goals of both statutes in a 
timely and efficient manner.

IV. Authorities

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

    This Agreement relates to the following authorities of the 
Services: Section 7 of the Endangered Species Act of 1973, as amended 
(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.
1. Local/Regional Coordinating Teams
    The regional offices of EPA and the Services will establish 
coordinating teams, including representation from field offices, to 
foster early and recurring collaboration on various activities related 
to the CWA and the ESA. These teams will, as appropriate:
    a. Meet at least twice annually;
    b. Identify upcoming workload requirements. This dialogue will 
allow signatory agencies to become aware of and provide input on 
upcoming activities such as annual work plans, triennial water quality 
standards reviews, recovery plan preparation, proposed State or Tribal 
program assumptions, proposed listings, or proposed habitat 
conservation planning efforts;
    c. Identify high priority areas of concern and opportunities for 
cooperation;
    d. Assist one another in determining which categories of NPDES 
permits should be identified for review by EPA and the Services for 
endangered species concerns, including waters of high concern in each 
State that should be priorities for EPA oversight; and how to identify, 
in cooperation with States and Tribes, the available information for 
evaluating effects of permitted discharges on species;
    e. Identify current and future research needs and determine which 
of these research needs are appropriate to convey to the research 
coordinating committee and which are appropriate for local or regional 
accomplishment;
    f. Identify training needs;
    g. Identify ways to reduce the impacts of proposed agency actions 
on endangered and threatened species; and
    h. Assist the oversight panel in conducting a programmatic review 
of EPA's authorities and identifying ways that EPA can more fully 
utilize those authorities to carry out programs for the conservation of 
listed species.
    Each of these local/regional coordinating teams will develop 
mechanisms to facilitate streamlining of various work activities as 
appropriate to the local circumstances. Such streamlining should 
facilitate early exchange of information, early prioritization of 
workload, and early identification of potential problems. Each local 
group should develop mechanisms to work with States and Tribes, as 
appropriate, concerning such things as candidate conservation 
agreements, recovery planning, triennial reviews, and annual CWA 
priorities. Local/regional coordinating teams may develop mechanisms to 
involve other Federal agencies such as the U.S. Army Corps of 
Engineers, the Forest Service, the Federal Energy Regulatory 
Commission, and non-Federal stakeholders whose actions and interests 
may impact the CWA/ESA issues.
2. Interagency Elevation Process
    The following procedures shall be utilized to elevate any conflict 
or disagreement between the agencies arising with regard to the 
activities addressed by this agreement, including formal or informal 
section 7 consultations, as well as disagreements arising in section 7 
consultations on

[[Page 11209]]

EPA actions under the CWA that are not specifically addressed by this 
agreement. The procedures may be used to review matters such as the 
content of biological evaluations or supporting analyses prepared by 
EPA or biological opinions prepared by the Services. However, the 
elevation process does not impair in any way the ultimate authority of 
EPA or the Services to issue decisions or render determinations that 
are within each agency's authority under the CWA and the ESA. While 
decisions by all levels, including decisions to elevate, will be made 
by consensus to the greatest extent practicable, any one agency can 
initiate the elevation process. Elevation should be initiated so that 
all applicable deadlines may be met, taking into account subsequent 
levels of review. In any elevation, the agencies will jointly prepare 
an elevation document that will contain a joint statement of facts and 
succinctly state each agency's position and recommendations for 
resolution. If the agencies are aware of a dispute, they will defer 
taking final action, where consistent with applicable legal deadlines, 
to allow the issue to be resolved through the elevation process.
    The time periods specified below are intended to facilitate 
expeditious resolution of the issues. These time periods should be 
shortened when necessary for any agency to meet applicable legal 
deadlines. The time periods begin to run on the date that the elevating 
agency or agencies notify the next level of the elevation request. All 
prescribed time frames in the elevation process can be waived by the 
mutual consent of the participants at any level when the participants 
believe that progress is being made and that resolution at that level 
is still possible.
    a. Level 1: The Level 1 review team consists of staff personnel 
from EPA and FWS and/or NMFS and field unit line officers or staff 
supervisors, (i.e., for NMFS, branch/division chiefs; for EPA, branch 
chiefs; and for FWS, field office supervisors). The overall goal is to 
design actions to avoid and/or minimize adverse impacts to listed 
species by jointly working on biological evaluations, concurrences and 
biological opinions for such actions. General functions include those 
specified in section V.A.1.
    Any contentious issues will be discussed with an attempt to resolve 
them without elevation. If disputes cannot be resolved among the Level 
1 team members, the issue will be raised with the Level 2 review team 
as soon as possible.
    b. Level 2: The Level 2 review team consists of all regional 
executives (i.e., for NMFS and EPA, regional administrators; and for 
FWS, regional directors). Their function is to resolve any elevated 
disputes within 21 days of notification of elevation by Level 1 teams, 
or sooner as necessary to meet mandatory deadlines, and serve as key 
advisors on policy and process. The Level 2 team (i.e., the regional 
executives) may confer with field unit line officers or staff 
supervisors (e.g., for NMFS, branch/division chiefs; for EPA, branch 
chiefs; and for FWS, field office supervisors) in making any decisions 
on the elevation. If issues are not resolved by the Level 2 team, the 
issue will be elevated for Headquarters Review.
    c. Headquarters Review: This review consists of the Director of 
NMFS (Assistant Administrator for Fisheries, National Oceanic and 
Atmospheric Administration, NOAA), the Director of FWS, and the Deputy 
Assistant Administrator of Water at EPA or their representatives. These 
officials shall attempt to issue a decision resolving the issue within 
21 days after elevation. Decisions will be binding upon the agencies' 
field staffs. Agency administrators or their designees shall make every 
attempt to resolve the dispute before elevation, where necessary, to 
the Assistant Secretaries of the Departments of Interior/ Commerce and 
the Assistant Administrator of EPA. Where determined to be appropriate 
(e.g., where the results of the elevation would provide useful guidance 
to agency staff), the decision on the elevation should be memorialized 
in writing and circulated among Agency staff to serve as guidance for 
future decisions. Assistant Secretary(s) and Assistant Administrator 
shall resolve any issues within 21 days of elevation. The authority to 
render any decision that is subject to elevation rests with the agency 
exercising the statutory or regulatory authority in question.
3. Oversight Panel
    The Oversight Panel consists of regional and headquarters personnel 
from each individual agency. The panel provides oversight and 
coordination for all aspects of this agreement. Its functions include, 
but are not limited to:
    (1) Maintaining and updating process guidance;
    (2) Addressing issues about process implementation;
    (3) Incorporating/identifying improvements and revisions into the 
process;
    (4) Convening interagency scientific/technical reviews, as 
appropriate;
    (5) Facilitating reaching consensus on particular issues at any 
level upon requests by personnel at that level;
    (6) Reviewing and evaluating, at least on an annual basis, the 
Agreement and its implementation by the three agencies; and
    (7) As soon as is practicable and no later than one year after 
signature of the MOA, conducting a proactive conservation review 
pursuant to section 7(a)(1) of the ESA which will address EPA's 
authorities under the CWA for carrying out programs for the 
conservation of listed species.
4. Sub-Agreements
    Regional and field level Federal sub-agreements further 
implementing this Agreement may be executed by appropriate EPA/Services 
programs. Any such sub-agreements which clarify roles, procedures, and 
responsibilities are encouraged. This includes any efforts to protect 
species and water quality on a watershed or ecosystem basis. Sub-
agreements must be consistent with this Agreement and must be approved 
by Regional offices and reviewed by Headquarters.
5. Guidance/Training
    EPA and the Services will hold joint training sessions with 
regional and field staff to facilitate 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. EPA will send the list of species and 
habitat to States and Tribes. The Services agree to provide to

[[Page 11210]]

EPA any additions of species or other relevant information as proposed 
or final rule-making occurs. EPA will provide and update copies of 
Federal section 304(a) water quality criteria and applicable State and 
Tribal water quality standards to the Services.
    EPA and the Services will share information and analyses used to 
make decisions under this Agreement when requested, including analyses 
supporting biological evaluations and biological opinions. The Services 
will provide to EPA copies of all draft jeopardy biological opinions 
and draft no jeopardy biological opinions with incidental take 
statements, unless EPA specifically requests that a draft not be 
provided.
4. Effects of an Action
    All ``effects of the action'' and ``cumulative effects'' will be 
considered in the Services' biological opinions (50 CFR 402.14(c), 
402.14(g) (3) and (4), and 402.14(h)). The ``effects of an action'' 
include all direct as well as indirect effects that are reasonably 
certain to occur, even at a later time. Effects of an action include 
effects of interrelated and interdependent actions associated with the 
proposed action in question. Cumulative effects include future State or 
Tribal and private actions that are reasonably certain to occur in the 
action area that do not involve Federal activities. Water quality 
criteria and State or Tribal water quality standards establish levels 
of pollutants from all sources, and so would account for all such 
effects insofar as water quality is concerned. Since NPDES permits are 
established to achieve water quality standards, they will account for 
point source effects insofar as water quality is concerned.
5. Biological Evaluation
    Although section 7(c) of the ESA refers to a biological assessment 
as an element of the consultation process, a biological assessment is 
required only in the case of a major construction activity, as defined 
at 50 CFR 402.02. The purpose of a biological assessment is to enable 
an agency to determine whether a proposed action is likely to adversely 
affect Federally-listed species and designated critical habitat. A 
biological assessment also assists an agency in complying with 
potential ESA ``conference'' requirements for proposed species and 
critical habitat under 50 CFR 402.10. For EPA actions that are not 
major construction activities, an alternative document that may be used 
for decision-making is a biological evaluation. While a biological 
evaluation is not required by regulation, EPA will develop such an 
evaluation where the Agency determines it would be appropriate for 
determining whether listed species may be affected by the proposed 
action and for assisting consultation with the Services. The Services 
recognize that the content and format of the biological evaluation are 
to be determined by EPA. When preparing biological evaluations, EPA 
will use as guidance the information requirement described at 50 CFR 
402.14(c) (initiation of consultation).
    A biological evaluation is an analysis of the potential effects of 
a proposed action on listed species or their critical habitat based 
upon the best available scientific or commercial information. The 
biological evaluation will vary in extent and rigor according to the 
certainty and severity of an action's deleterious effect. For example, 
a biological evaluation may be very brief if the expected result of an 
action is straightforward, is beneficial, or is of little or no 
consequence. If, on the other hand, the potential effects are severe, 
large in scope, complex or uncertain in terms of outcome, the analysis 
would need to be more extensive and rigorous.
    A biological evaluation can be used for decision-making prior to 
and throughout section 7 consultation and for a possible conference on 
proposed species or critical habitat. The evaluation can be used to 
make a ``may effect'' or ``no effect'' determination, or to support a 
judgment that the proposed action is or is not likely to adversely 
affect listed species or their critical habitat.
    If early or formal consultation is initiated, a biological 
evaluation or biological assessment can be used by the appropriate 
Service in rendering a preliminary or final biological opinion. 
Therefore, EPA will discuss, as appropriate, the form and nature of the 
biological evaluation with the Services to ensure that the biological 
evaluation contains adequate information for evaluating the effects of 
the proposed action.
6. Timeliness of Actions
    In informal and formal consultation, EPA and the Services agree to 
adhere to time frames set forth in 50 CFR part 402 and supplemental 
guidance provided in this Agreement, in order to enable EPA to meet 
statutory and regulatory deadlines under the CWA. EPA will strive to 
provide advance notice to the Services concerning anticipated 
consultations, to provide thorough biological evaluations, to comment 
promptly on draft opinions and to provide, where appropriate, 
additional available information requested by the Services.
    If during informal consultation EPA determines that the action is 
not likely to adversely affect listed species or critical habitat, then 
EPA will notify the Services in writing. The Services will respond in 
writing within 30 days of receipt of such a determination, unless 
extended by mutual agreement. The response will state whether the 
Services concur or does not concur with EPA's determination. If the 
Services do not concur, it will provide a written explanation that 
includes the species and/or habitat of concern, the perceived adverse 
effects, supporting information, and a basic rationale.
    The Services may request that EPA initiate consultation on a 
Federal action. The Services do not have the authority, however, to 
require the initiation of consultation. The Services' written 
explanation of the request shall include the species and/or critical 
habitat of concern, manner in which there may be an effect, supporting 
information, and a basic rationale.
    The Services will strive to issue biological opinions within 90 
days of an initiation of formal consultation unless the Services and 
EPA agree to extend the consultation period. The timing of activities 
during consultation may be further expedited as necessary taking into 
account legal deadlines for EPA action and the agencies' programmatic 
needs. EPA, where appropriate, will enter into early consultation with 
the Services in order to ensure that EPA meets its statutory CWA 
deadlines for decision-making. 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. Where EPA prepares a biological evaluation, EPA will 
attempt to provide the Services a biological evaluation at least 90 
days before reaching a decision on a proposed action.
7. EPA Responsibility at the Conclusion of Section 7 Consultation
    Following issuance of a biological opinion, EPA will determine 
whether and in what manner to proceed with the action in light of its 
CWA and section 7 obligations. If a jeopardy opinion is issued, EPA 
will notify the Services of its final decision on the action.
8. Reinitiation of Formal Consultation
    The section 7 regulations define conditions under which EPA or the 
Services will request reinitiation of formal consultation at 50 CFR 
402.16. The Services and EPA will work

[[Page 11211]]

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

E. Candidate Conservation Activities

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

VI. National Level Activities To Ensure Protection of Species

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

A. National Rulemaking

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

B. Development of New Water Quality Criteria Methodological Guidelines

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

[[Page 11212]]

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 also conducted 
consultation with the Services regarding aquatic life criteria 
promulgated by EPA for toxic pollutants for certain waters in 
California. In addition to these comprehensive formal consultations, 
EPA and the Services have also conducted informal consultations on 
State water quality standards approval actions which have covered water 
quality criteria contained in the standards.
    EPA and the Services recognize, however, that conducting 
consultations on a State-by-State basis is not the most efficient 
approach to evaluating the effects of water pollution on endangered and 
threatened species throughout the country. National 304(a) 
consultations will ensure a consistent approach to evaluating the 
effects of pollutants on species and identifying measures that may be 
needed to better protect them. National consultations will also ensure 
better consideration of effects on species whose ranges cross State 
boundaries.
2. Procedures for Consultations
    The consultations will be conducted in accordance with the 
procedures in 50 CFR part 402 and the guidance contained in the 
Services' Consultation Handbook. EPA and the Services also anticipate 
that the consultations will follow the basic approach described below. 
The agencies will endeavor to streamline their processes to complete 
these consultations in an expedited manner.
    EPA and the Services anticipate that the national consultations 
will focus on aquatic and aquatic-dependent species. The consultations 
will be conducted on a national basis, and therefore, will not be 
waterbody-specific. In addition, given the numbers of species involved 
in the consultations, the effects on species will be evaluated to the 
maximum extent possible based on groupings of species believed to be 
affected in a similar manner.
    The agencies will take a collaborative approach to evaluating the 
effects of the criteria pollutants on listed species, and joint teams 
will be established to conduct the consultations. With input from the 
Services, EPA will prepare a biological evaluation based on the best 
scientific and commercial data available, and will provide a rationale 
for any findings regarding the effects of the criteria pollutants on 
listed species. EPA will make ``effects determinations'' based on the 
direct and indirect effects of the 45 pollutants on listed species. EPA 
will evaluate the effects of pollutants on species in the water column 
based upon the available toxicological data, principally the data 
assembled in EPA's criteria development documents as well any more 
recent toxicological information. EPA will consider other exposure 
scenarios to aquatic and aquatic-dependent species and provide 
available information to the Services.
    The Services will work collaboratively with EPA in developing their 
biological opinion, including the development of any reasonable and 
prudent measures or alternatives to minimize incidental take, if 
anticipated, or to avoid likely jeopardy to listed species or adverse 
modification or destruction of designated critical habitat. Any 
reasonable and prudent measures or alternatives that identify research 
needs will be mutually developed and will reflect priorities 
established by the national research and data gathering plan. Should 
the opinion call for revisions to existing criteria or issuance of new 
criteria, the opinion will recognize EPA's practice of subjecting new 
or revised criteria to public notice and comment and external peer 
review prior to being finalized. EPA believes that the existing 
criteria provide a significant degree of protection for the aquatic 
ecosystem (including listed species). The agencies agree that, until 
any revisions of criteria are completed, the agencies will, to the 
maximum extent practicable, maintain the status quo by continuing to 
implement such criteria in water quality standards programs prior to 
revisions to the criteria.
    Because the effects of the criteria pollutants on certain listed 
species have already been evaluated in biological opinions issued by 
the Services, the agencies will rely upon the scientific information 
and conclusions in those consultations to the maximum extent possible. 
Such prior opinions will remain in effect unless consultation is 
reinitiated.
    The national consultation will provide section 7 coverage for any 
water quality criteria included in State or Tribal water quality 
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

[[Page 11213]]

agree that EPA may proceed with its action pending the conclusion of 
the national consultation. EPA will ensure that its action does not 
have the effect of foreclosing the formulation or implementation of any 
reasonable and prudent alternatives in the national consultation by 
stating that EPA's action is subject to revision based on the results 
of the consultation.

VII. Joint National Research and Data Gathering Plan and Priorities

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

A. Existing and New Water Quality Criteria

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

B. Work Group Report to Agreement Signatories

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

C. National Research and Data Gathering Plan

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

D. Consultation on State and Tribal Water Quality Standards

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

VIII. Consultation on Water Quality Standards Actions

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

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

[[Page 11214]]

obtaining descriptions of pollutants and causes of water quality 
problems within a watershed or ecosystem. The Services will work 
cooperatively with the States or Tribes to identify any concerns the 
Services may have and how to address those concerns. EPA will request 
the Services to review and comment on draft standards, and to 
participate in meetings with States or Tribes as appropriate. EPA will 
indicate which of these requests are of high priority, and the Services 
will make every effort to be responsive to these requests.
    Where appropriate, EPA and the Services will encourage the State or 
Tribe to adopt special protective designations where listed or proposed 
threatened or endangered species are present or critical habitat is 
designated or proposed.
    EPA will initiate discussions with the Services if there is a 
concern that a draft State or Tribal standard or relevant policy may 
impact Federally-listed species or critical habitat.
3. Adoption and Submittal of State or Tribal Standards
    States or Tribes adopt new and revised standards and implementing 
policies from time to time as well as at the conclusion of the 
triennial review period.
    After the final action adopting the standards, the State or Tribe 
sends its adopted standards to EPA. Once received, EPA is required by 
the CWA to approve the standards within 60 days or disapprove them 
within 90 days. Section 7 consultation is required if EPA determines 
that its approval of any of the standards may affect listed species or 
designated critical habitat. The time periods established by the CWA 
require that EPA and the Services work effectively together to complete 
any needed consultation on a State's or Tribe's standards quickly. In 
order to provide enough time for consultation with the Services where 
the approval may affect endangered or threatened species, EPA will work 
with the State or Tribe with the goal of providing to the Services a 
final draft of the new or revised water quality standards 90 days prior 
to the State's or Tribe's expected submission of the standards to EPA. 
The Services and EPA agree to consult on the final draft, and to 
accommodate minor revisions in the standards that may occur during the 
State's or Tribe's adoption process.
4. EPA Develops Biological Evaluation
    When needed, EPA will develop a biological evaluation to analyze 
the potential effect of any new or revised State or Tribe adopted 
standards that may affect Federally-listed species or critical habitat.
5. EPA Determination of ``No Effect,'' ``May Affect,'' and ``Likely To 
Adversely Affect''
    EPA will evaluate proposed new or revised standards and use any 
biological evaluation or other information to determine if the new or 
revised standards ``may affect'' a listed species or critical habitat. 
For those standards where EPA determines that there is ``no effect,'' 
EPA may record the determination for its files and no consultation is 
required. Although not required by section 7 of the ESA for actions 
that are not major construction activities as defined by 50 CFR 402.02, 
EPA will share any biological evaluation, ``no effect'' determination, 
and supporting documentation used to make a ``no effect'' determination 
with the Services upon request.
    If EPA decides that the new or revised water quality standards 
``may affect'' a listed species, then EPA will enter into informal 
consultation (unless EPA decides to proceed directly to formal 
consultation) to determine whether the standards are likely to 
adversely affect Federally-listed species or critical habitat. If EPA 
determines that the species or critical habitat is not likely to be 
adversely affected, EPA will request the Service to concur with its 
finding.
    Where EPA finds that a species or critical habitat is likely to be 
adversely affected, EPA will consider, and the Services may suggest, 
modifications to the standards(s) or other appropriate actions which 
would avoid the likelihood of adverse effects to listed species or 
critical habitat. If the likelihood of adverse effects cannot be 
avoided during informal consultation, then EPA will initiate formal 
consultation with the Services or EPA may choose to disapprove the 
standard. In addition, if EPA finds that a proposed species is likely 
to be jeopardized or proposed critical habitat destroyed or adversely 
modified by EPA approval of a new or revised State or Tribal standard, 
EPA will confer with the Services under 50 CFR 402.10.
6. Services' Review of ``Not Likely To Adversely Affect'' Determination
    Within 30 days after EPA submits a ``not likely to adversely 
affect'' determination, the Services will provide EPA with a written 
response on whether they concur with EPA's findings. The Services will 
provide EPA with one of the three following types of written responses: 
(1) Concurrence with EPA's determination (this would conclude 
consultation), (2) non-concurrence with EPA's determination and, if the 
Services cannot identify the specific ways to avoid adverse effects, a 
request that EPA enter into formal section 7 consultation (see 7 
below), or (3) a request that EPA provide further information on their 
determination. If it is not practicable for EPA to provide further 
information, the Services will make a decision based on the best 
available scientific and commercial information.
7. Formal Consultation
    Where EPA intends to request formal consultation, EPA will attempt 
to do so at least 45 days prior to the State's or Tribe's expected 
submission of water quality standards to EPA. Formal consultation on 
new or revised standards adopted by a State or Tribe will begin on the 
date the Services and EPA jointly agree that the information provided 
is sufficient to initiate consultation under 50 CFR 402.14(c). The 
consultation will be based on the information supplied by EPA in any 
biological evaluation and other relevant information that is available 
or which can practicably be obtained during the consultation period 
(see 50 CFR 402.14 (d) and (f)). The Services will make every effort to 
complete consultation and delivery of a final biological opinion within 
90 days, or on a schedule agreed upon with the EPA Regional Office.
    If the Service anticipates that incidental take will occur, the 
Service's biological opinion will provide an incidental take statement 
that will normally contain reasonable and prudent measures to minimize 
such take, and terms and conditions to implement those measures. 
Reasonable and prudent measures can include actions that involve only 
minor changes to the proposed action, and reduce the level of take 
associated with project activities. These measures should minimize the 
impacts of incidental take to the extent reasonable and prudent. 
Measures are considered reasonable and prudent when they are consistent 
with the proposed action's basic design, location, scope, duration, and 
timing. The test for reasonableness is whether the proposed measure 
would cause more than a minor change to the proposed action. 50 CFR 
402.14(i)(2).
    Appropriate minor changes can include, for example, a condition 
stating that the EPA Regional Office will work with the State or Tribe 
to obtain revisions to the water quality standards in the next 
triennial review. Where either of the Services believe that there is a 
need for the standards to be revised more quickly, the Service should 
work with EPA and the State or Tribe to

[[Page 11215]]

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

B. Existing Water Quality Standards

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

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

    EPA promulgation of State or Tribal water quality standards is a 
Federal rule-making process and EPA will comply with the consultation 
requirements of section 7 of the ESA with any promulgation.

IX. Permitting Program Activities

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

A. Coordination Procedures Regarding Issuance of State or Tribal 
Permits

    EPA has authority and responsibility for overseeing the operation 
of State/Tribal NPDES programs through, among other means, review of 
State/Tribal NPDES permits where appropriate. EPA's oversight includes 
consideration of the impact of permitted discharges on waters and 
species that depend on those waters. EPA does this by among other 
things, determining whether State or Tribal permits indeed attain water 
quality standards. The procedures outlined below are designed to assist 
EPA in fulfilling these CWA oversight responsibilities.
    EPA and the 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

[[Page 11216]]

review and objection to State or Tribal permits are established by 
statute and regulation. See CWA section 402(d); 40 CFR 123.44. Where 
EPA determines that exercise of its objection authority is appropriate 
to protect endangered and threatened species, the Agency will act 
pursuant to its existing authorities under the CWA (i.e., where the 
proposed permit would be ``outside the guidelines and requirements'' of 
the CWA. See CWA 402(d)(2)). EPA and the Services will follow the 
coordination procedures below in a manner consistent with these 
statutory and regulatory procedures:
    1. The Services will provide the States or Tribes with information 
on Federally-listed species and any designated critical habitat in the 
States or on Tribal lands, with special emphasis on aquatic and 
aquatic-dependent species.
    2. States are obligated under existing CWA regulations to provide 
notice and copies of draft permits to the Services. See 40 CFR 
124.10(c)(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 Services or EPA are concerned that an NPDES permit is 
likely to have a more than minor detrimental effect on a Federally-
listed species or critical habitat, the Service or EPA will contact the 
appropriate State or Tribal agency (preferably within 10 days of 
receipt of a notice of a draft State or Tribal permit) to discuss 
identified concerns. The Services or EPA will provide appropriate 
information in support of identified concerns. The Services and EPA 
will provide copies to each other of comments made to States or Tribes 
on issues related to Federally-listed species.
    4. If unable to resolve identified issue(s) with the State or 
Tribe, the Services will contact the appropriate EPA Regional Branch 
not later than five working days prior to the close of the public 
comment period on the State's or Tribe's draft NPDES permit. Telephone 
contacts should be followed by written documentation of the discussion 
with EPA and include or reference any relevant supporting information.
    5. If contacted by the Services, EPA will coordinate with the 
Services and the State or Tribe to ensure that the permit will comply 
with all applicable CWA requirements, including State or Tribal water 
quality standards, which include narrative criteria prohibiting toxic 
discharges, and will discuss appropriate measures protective of 
Federally-listed species and critical habitat.
    6. EPA may make a formal objection, where consistent with its CWA 
authority, or take other appropriate action, where EPA finds that a 
State or Tribal NPDES permit will likely have more than minor 
detrimental effect on Federally-listed species or critical habitat.
    For those NPDES permits with detrimental effects on Federally-
listed species or critical habitat that are minor, it is the intention 
of the Services and EPA that the Services will work with the State or 
Tribe to reduce the detrimental effects stemming from the permit. For 
those NPDES permits that have detrimental effects on Federally-listed 
species or critical habitat that are more than minor, including 
circumstances where the discharge fails to ensure the protection and 
propagation of fish, shellfish and wildlife, and where the State or 
Tribe and the Services are unable to resolve the issues, it is the 
intention of the Services and EPA that EPA would work with the State or 
Tribe to remove or reduce the detrimental impacts of the permit, 
including, in appropriate cases, by objecting to and Federalizing the 
permit where consistent with EPA's CWA authority.
    EPA will use the full extent of its CWA authority to object to a 
State or Tribal permit where EPA finds (taking into account all 
available information, including any analysis conducted by the 
Services) that a State or Tribal permit is likely to jeopardize the 
continued existence of any listed species or result in the destruction 
or adverse modification of critical habitat.

    Note: EPA may review or waive review of draft State or Tribal 
NPDES permits (40 CFR 123.24(d)). EPA will work with the Services 
through the local/regional coordinating teams to help determine 
which categories of permits should be reviewed for endangered 
species concerns. If EPA finds that a draft permit has a reasonable 
potential to have more than a minor detrimental effect on listed 
species or critical habitat, and review of a draft permit has been 
waived, EPA will withdraw this waiver during the public comment 
period (see 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 a more than minor detrimental effect on Federally-listed species 
or critical habitat, then the Services will contact the State or Tribe 
to seek to remedy the situation. EPA will provide support and 
assistance to the Services in working with the State or Tribe. Although 
EPA may, at the time of permit issuance, object to and assume permit-
issuing authority for draft NPDES permits, EPA has no authority to 
require changes to an already-issued State or Tribal permit. EPA or the 
Services could request that the State or Tribe use State or Tribal 
authority to reopen an issued permit if it is likely to have more than 
minor detrimental effects Federally-listed species or critical habitat.
    9. EPA will encourage the State or Tribe to facilitate the 
involvement of permittees or permit applicants in this process.

B. Issuance of EPA Permits

    EPA issuance of a permit is an action subject to section 7 
consultation if it may affect listed species or critical habitat. EPA 
will meet ESA requirements as provided in 40 CFR 122.49(c) and 50 CFR 
part 402 on the issuance of individual and general NPDES permits. If 
consultation has been completed on State or Tribal water quality 
standards and the NPDES permit conforms with those standards, then any 
ESA section 7 review process should be simplified.
    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

[[Page 11217]]

determination in the permit record before public notice. During the 30-
day public comment period, the Services may submit comments on EPA's 
determination. The Services may request initiation of consultation on 
Federally-listed species or critical habitat or conference on proposed 
species if it believes the proposed action may affect listed species or 
is likely to jeopardize the continued existence of a species proposed 
for listing or result in the destruction or adverse modification of 
proposed designated critical habitat.
    3. If EPA determines that the permitted action may affect 
Federally-listed species or critical habitat, EPA will initiate either 
informal or formal consultation. If EPA determines that the permitted 
action is likely to jeopardize proposed species or adversely modify 
proposed critical habitat, a conference will be initiated.
    4. In consultations involving permits, any reasonable and prudent 
measures (associated with an incidental take statement) will specify 
the measures considered necessary or appropriate to minimize takings. 
The Services will describe such measures. EPA may delegate the terms 
and conditions of the incidental take statement to permittees. The 
Services will rely on EPA to retain the responsibility to ensure the 
terms and conditions are carried out. This approach will be reflected 
in the Services' incidental take statements. Monitoring reports to 
ensure implementation of reasonable and prudent measures and terms and 
conditions will be made available to the Services by EPA in accordance 
with the terms of the incidental take statement.
    Reasonable and prudent measures and terms and conditions should be 
developed in close coordination with the EPA to ensure that the 
measures are reasonable, that they cause only minor changes to the 
proposed action, and that they are within the legal authority and 
jurisdiction of the Agency to carry out. If the Services and EPA cannot 
reach agreement on appropriate reasonable and prudent measures or terms 
and conditions at the level the consultation is being conducted, the 
decision can be elevated by the procedures discussed in section V.A.
    5. EPA will facilitate the involvement of permittees or permit 
applicants in this process.

C. Watershed Planning

    Whenever feasible and appropriate, the 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.

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. Signatures

    Dated: January 10, 2001.
J. Charles Fox,
Assistant Administrator for Water, U.S. Environmental Protection 
Agency.
    Dated: January 17, 2001.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
    Dated: January 18, 2001.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Oceanic and 
Atmospheric Administration.
[FR Doc. 01-2170 Filed 2-21-01; 8:45 am]
BILLING CODE 6560-50-P