US Fish and Wildlife Service

National Marine Fisheries Service

Comments on the draft MSGP/Endangered Species Procedures

6/24/05

The Services recommend the following changes to the draft
MSGP/Endangered Species Procedures:

1.  **Revise Criterion A and Step One.** [*Revise Criterion A and Step
    One to reduce the likelihood that operators are falsely concluding
    species are not present in proximity to their facility (that is, the
    action area), when in fact they are present.*]{.underline}

**EPA: Anything we can include to enhance this part of the guidance
procedures we will gladly do. This is always a struggle for operators to
complete and for us to make doable. As always, for these types of
permits that apply to thousands of entities, the trick is to provide a
methodology that minimizes the sending of permit applicants to either of
our agencies for direct help (otherwise we'd be inundated and neither
could allot the resources to deal with such an onslaught).**

> Based on a limited review of the eNOIs in the CGP database, this
> criterion (listed species & designated critical habitat not present),
> is most frequently selected by applicants for determining eligibility
> under the CGP. *[The Services are concerned about the accuracy of
> determinations that rely upon this criterion (and the self-certified
> NLAA criterion).]{.underline}*

**EPA: Yes, accuracy and honesty are always an issue when dealing with
private individuals or companies (just as it is with tax collection or
any other governmental interaction). That's why we provide detailed
guidance and have legally-binding certifications and criminal / civil
penalties for transgressors. That said, anything we can do, within
reason, to enhance the accuracy of operators' investigations and
certifications we will do.**

> [*The Services would like to reiterate that EPA and Services work
> together to conduct an audit of the CGP to evaluate the procedures
> contained therein.*]{.underline}

**EPA: What exactly would this entail? While this can be looked at,
CGP-related analyses and concerns should not be linked to this
consultation. Remember, the vast majority of covered industrial
facilities will be renewing their coverage and not creating new threats
or have previously unaccounted for species / habitat to consider. It
would be inappropriate to base the requirements of one permit on their
effectiveness in the other.**

> In the interim, the Services have following suggestions for
> strengthening the determinations that fall under Criterion A and
> result from Step One.

Between publication of the proposed and final rule, let's work together
to improve the direction given to operators on how to evaluate effects
of the action. EPA's guidance to operators under Step One, suggests that
they seek species lists from the Services. While and informative first
step, the lists maintained on the website,
<http://cfpub.epa.gov/npdes/stormwater/esa.cfm>, do not contain
information at a fine enough resolution to aid operators in reaching a
"no presence" determination. EPA's NPDES Program should provide
operators additional assistance in determining species presence. *[One
such way they could achieve this is to could team up with EPA's Office
of Pesticides Program who with the assistance of state representatives
and local fish and wildlife experts develops and distributes county
bulletins that contain maps of listed species and designated critical
habitat.]{.underline}*

**EPA: Our guidance already makes it clear that a species-in-proximity
investigation is a 2-part effort once a species initially shows up on
the county or township list. At this point, we state they should use the
Services or Heritage Centers to determine localized presence, but we
also allow them to use their own experts / consultants to accomplish
this, if such resources were available. Years ago we used to take
advantage of our pesticide office for providing species info and
updates, but found they were not timely or reliable. However, if they
are now a resource the Services are comfortable with, we can certainly
cite them.**

*[A number of fish and wildlife management agencies of many states
maintain computerized (sometimes web-based) data sources that operators
can also easily access for finer scale resolution on presence/absence of
listed resources.]{.underline}*

**EPA: Do you have a specific list and/or addresses of these resources
so we could provide it?**

Once the operator determines that there could be listed species present
near their facility (within the action area) the guidance provides
further instruction that they must do one or more of the following:
conduct (1) visual inspections of their facility, (2) formal biological
surveys, or (3) an environmental assessment under the National
Environmental Policy Act (NEPA). Generally, the latter tool, the NEPA
analysis, relies upon a combination of survey methods such as the visual
inspection, the formal field survey, and can rely upon a wide array of
other sources. [*While NEPA should be referenced if conducted, more
useful and comprehensive sources of information are available on species
presence and EPA should encourage their staff and "non-federal"
representatives to be using the best scientific and commercial data
available (section 7(a)(2) of the ESA).*]{.underline}

**EPA: NEPA is mentioned as just one possibility, and is mostly
available only to new sources (i.e., brand new factories). It will not
be widely used, given the small number of new industrial facilities
coming on line. We can include the verbiage "\[use\] the best scientific
and commercial data available."**

Generally, the best information involves a combination of sources such a
state agency data sets, visual inspections, and formal surveys. Reliance
on only one method for detecting a species presence increases the risk
of falsely concluding the listed species is not using the action area.
In particular, visual inspections are one of the least reliable methods
for detecting species and although the power of visual inspections can
increase with repeated sampling, visual inspections will often have high
error rates. Many factors influence the accuracy of visual inspections
including: some species have cryptic life stages or are cryptic
throughout their life cycle making visual detection (without sampling
impossible or nearly so); habitat attributes can decrease visibility and
detection (e.g., vegetative and geologic structure, water clarity, and
velocity to name a few); species behaviors also strongly influence
detectability -- species are mobile, their ranges shift over time, and
individual animals move within their range on a variety of scales, not
to mention many species will hide if disturbed by the individual
conducting visual observations. [*Therefore, the Services suggest that
EPA revise Step One so that operators must employ several methods for
evaluating presence.* *Moreover the guidance for determining what
information to select should reference local and state fish and wildlife
data agencies databases,*]{.underline} and instruct operators to ensure
that they are using the "best scientific can commercial data available.

**EPA**: **"Local and state fish and wildlife agencies' databases" can
be cited as a potential resource, as this ties in with our existing
requirement that operators further localize their investigations once a
species shows up on a county or township list. EPA already requires that
a "positive" finding during the 2-part species / habitat presence
investigation of Step One be followed up with "one or more" of the other
options you refer to. Requiring [every]{.underline} operator to undergo
both visual inspections and a biological survey is, EPA believes,
unnecessary and overly burdensome (will be especially so to the SBA, OMB
and the regulated community) because, as we explain in Step One, visual
inspections are appropriate "for facilities that are smaller in size or
located in non-natural settings such as highly urbanized areas or
industrial parks where there is little or no natural habitat, or for
facilities that discharge directly into municipal separate storm sewer
systems." Mandating operators of such facilities to perform a biological
survey in addition to visual monitoring would be costly and most likely
not yield much additional benefit. We can, however, strengthen the
language regarding the need for formal biological surveys and to
strongly discourage just using visual monitoring for any facility other
than those in the highly urbanized, etc. settings.**

Lastly, the MSGP should require all operators maintain the documentation
they relied upon to determine eligibility under this Criterion A.

**EPA**: **Documentation is a requirement in the permit already.**

2.  **Delete Criterion E**. *[Procedurally, if an operator determines
    their activities "may affect" but are "not likely to adversely
    affect" spp or CH, then informal consultation with the Service is
    required. The operator should be required to receive a written
    concurrence from the Service prior to receiving their permit. This
    circumstance is already covered under Criterion D,]{.underline}*

**EPA**: **No, this is a misunderstanding.** **As discussed in Criteria
B, consultation between an operator and the Services for the MSGP-2005
is only an option when done "as part of a separate Federal action (e.g.,
during application for an individual wastewater discharge permit, the
issuance of a wetlands dredge and fill permit, or as a result of a NEPA
review)." The only consultation that can be done vis-à-vis this general
permit is occurring now with the EPA. Since an individual operator
cannot initiate or engage in consultation unless involved in some
Federal action (which, in this case, the operator is not as the Federal
involvement doesn't begin until the NOI is submitted, and he/she cannot
submit an NOI until ES issues are settled. Another way to look at it:
When an operator is determining his/her eligibility for permit coverage,
EPA has no knowledge about or involvement with him/her, and therefore
cannot designate the operator as a non-Federal representative for
purposes of consulting.), the only way a new consultation can occur is
through the resource-intensive individual permit process. While this is
possible, and may be necessary in some instances as we state in the Fact
Sheet, it is not something that can realistically happen very often.
Hence, the "coordination" criteria option (Criteria D) is offered to
provide a consultation-like interaction. We can add language to the
permit requirements (in addition to the existent language in the act
Sheet) about the need to submit an individual permit application and
participate in consultation for the extreme cases, but this should
remain a worst-case scenario option.**

> [*so E is not necessary if we are following procedures correctly.
> Furthermore, the Services are concerned that Criterion E has a high
> potential for false conclusions that species are not likely to be
> adversely affected by discharges when in fact they would be adversely
> affected by the discharge.*]{.underline}

**EPA**: **Criteria E, while not ideal, is necessary. Plus, we do state
that this should be done by experts in the appropriate sciences, thereby
giving operators the option of performing this on their own in a
professional and reliable manner. In any case, for the MSGP there are
several salient points that make this criterion indispensable. One is
the issue of resource burden for us, the Services, and the regulated
community, were this option to go away. Another is the fact that the
permit exists to ensure industrial stormwater discharges are clean. If
the operator has permit coverage, we cannot presume he/she is
non-compliant, therefore the clean discharges are unlikely to have
adverse effects. So the only other potential impacts we could address
would be associated with the flow and siting of BMPs. Industrial BMPs
are typically not structural (i.e., they are of a "good housekeeping"
nature) and most established industrial facilities (which is what this
permit largely covers---very few new facilities are getting permits), do
not significantly alter the existing hydrology. So, it is not
unreasonable that an operator could make this certification without
extra layers of investigation. Moreover, you (or EPA) can put an
indefinite "hold" on any new facility's coverage, via the e-NOI system,
if there appears there'd be a potential problem.**

> The MSGP is inclusive of a wide range of industrial activities and
> resulting stormwater discharges. Until EPA and the Services have
> completed section 7 consultations on the national aquatic life
> criteria and any subsequent state water quality standards, reliance on
> these protective measures to mitigate the effects of exposure to
> listed species is unfounded. *[Moreover, responses that species
> exhibit upon exposure to stormwater discharges are complex, and the
> synthesis and ensuing risk prediction that results from the species
> interaction with the pollutants is equally complex. Species may
> respond to exposure in a wide variety of ways, including immediate
> mortality, ranging to no response what so ever. However, more
> frequently and perhaps one of the most complex aspects of evaluation
> response profiles is understanding and predicting the outcome of
> sub-cellular responses that, while meaningful to the individual
> animal's health and even the species longevity, can easily be
> overlooked by the facility manager who is not trained in biology,
> physiology, and ecotoxicology.]{.underline}*

**EPA**: **We can synthesize this language into the Fact Sheet.**

> *[EPA's responsibility under section 7(a)(2) is to ensure that any
> action it undertakes is not likely to jeopardize the continued
> existence of any endangered and threatened species or result in the
> destruction of adverse modification of habitat,]{.underline}* and
> under section 7(a)(1) is to use their authorities in furtherance of
> the purpose of the ESA, promoting the conservation of listed species
> and their designated critical habitat.

**EPA**: **The MSGP was created to regulate industrial stormwater
discharges so that the physical, biological and chemical integrity of
receiving waters is protected. As such, it is inherently beneficial to
species / habitat. To the extent there could be effects peripherally
associated with the discharge of this clean water (e.g., flow effects,
BMP siting), EPA has included requirements and guidance to address these
peripheral effects.**

> To achieve these objectives, *[the Services believe this criterion
> should be deleted from the MSGP until the effects of stormwater and
> water quality standards on listed species are further evaluated, and
> the CGP use of this criterion is also evaluated for compliance and
> accuracy.]{.underline}*

**EPA**: **Certainly, cases where permittees are discharging pollutants
in harmful amounts can be enforced against, but we cannot assume this
until such evidence is presented. This would only happen after coverage
is granted. While comprehensive studies on the interaction of stormwater
and WQS on species / habitat would be welcome, it is unrealistic that
such a monumental and complicated undertaking could ever be accomplished
or even be very useful for [general]{.underline} permitting purposes.
Regarding the CGP, it would be inappropriate to base the requirements of
one permit on their effectiveness in the other (see previous
discussion).**

3.  **Revise Criterion D.** *[Revise Criterion D to state: Consultation
    between the Fish and Wildlife Service and the National Marine
    Fisheries Service has been concluded]{.underline}*.....The result of
    the consultation must be written statement from the Services that
    the facility is a) not likely to adversely affect threatened and
    endangered species and federally designated critical habitat, or b)
    will not affect threatened and endangered species and federally
    designated critical habit.

**EPA**: **Not appropriate as discussed above.**

Please also clarify the following:

4.  Will the applicant submit information supporting their endangered
    spp compliance in their SWPPP/permit application (NOI?) and is all
    of this information transmitted and available to the field offices
    in the automated system?

**EPA: No, applicants** **do not submit any SWPPP or ES info when
submitting an NOI (record-keeping nightmare). As explained in the Fact
Sheet: "This information \[ES investigation\], including any other
relevant piece of information such as the SWPPP, may be requested by the
Services or EPA for review before permit coverage is authorized or by an
inspector after the fact." Therefore, you could just put a hold on the
NOI and alert EPA that you'd want to see the info. We will share provide
you the procedures for reviewing / holding up NOIs (same as for CGP).**

5.  Does EPA still intend to automate the notice of the application to
    the Services as discussed in December 2004? That is, we discussed
    receiving email notices for both the MSGP and the CGP. For the MSGP,
    we anticipate having 30 days to review the information provided. As
    we understand it, if we do not respond, then EPA would issue the
    permit. If the FWS/NOAAF ask for more information the application
    will be on hold until the information is provided and any necessary
    coordination or consultation is completed. If the FWS/NOAAF
    determine the issuance of the permit is \"likely to adversely
    affect\" listed/proposed spp/CH, then the applicant will need to get
    an individual permit. If the FWS/NOAAF determine the activity is
    \"not likely to adversely affect\" spp/CH, or if any likely adverse
    effects were covered under separate consultation or HCP, then the
    permit is issued.

**EPA: Yes.**

6.  The conditions in the MSGP need to apply for proposed T&E species
    and proposed CH as well as listed spp and designated CH.

**EPA: Unfortunately, we wouldn't be able to justify doing this.
Proposed species and habitat were included in the MSGP-1995 but were
removed due to public comment in the MSGP-2000. Commenters pointed out
it was inappropriate to determine permit coverage based on species that
haven't gone through the entire listing process. EPA would not be able
to backtrack on this issue for this version.**

7.  Criteria B, C, D, and F, involve demonstrating ESA compliance
    through separate consultation or HCP activities. Whenever an
    applicant asserts ESA compliance was completed thru one of these
    criteria, they should provide permit and file numbers (e.g., for a
    404 permit they should provide the Corps permit \# along with the
    Service file number or reference \# representing our response). This
    will allow staff in the field offices to review permits more
    quickly.

> **EPA: ("HCP"?) Actually, the 404 connection is probably a bad example
> because of it's unlikelihood for industrial dischargers, so we're
> going to delete it. We will include a requirement of the NOI to
> provide any permit number that is being used to certify under
> Criterion B (Criterion F is already there).**

8.  On the \"fact sheet\" there were 2 instances where \"potential
    jeopardy\" and \"possible jeopardy\" were represented as decision
    points as to eligibility under the MSGP (para. for letter E and last
    paragraph same page). We think you meant \"adverse effects\" and not
    \"jeopardy\".

**EPA: Corrections made.**