RAUL M. GRIJALVA, AZ RANKING MEMBER GRACE F. NAPOLITANO, CA MADELEINE Z. BORDALLO, GU JIM COSTA, CA GREGORIO KILILI CAMACHO SABLAN, CNMI

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DAVID WATKINS DEMOCRATIC STAFF DIRECTOR 

### June 11, 2015 ROB BISHOP, UT CHAIRMAN DON YOUNG, AK LOUIE GOHMERT, TX DOUG LAMBORN, CO ROBERTJ.WITTMAN,VA JOHN FLEMING, LA TOM McCLINTOCK, CA GLENN THOMPSON, PA CYNTHIA LUMMIS, WY DAN BENISHEK, MI JEFF DUNCAN, SC PAULA.GOSAR,AZ RAUL R. LABRADOR, ID DOUG LAMALFA, CA BRADLEY BYRNE, AL JEFF DENHAM, CA PAULCOOK,CA BRUCE WESTERMAN,AR GARRETGRAVES,LA DAN NEWHOUSE, WA RYAN ZINKE, MT JODY HICE, GA AMATACOLEMANRADEWAGEN,AS TOM MAcARTHUR, NJ ALEX MOONEY, WV CRESENT HARDY. NV

JASON KNOX STAFF DIRECTOR



### The Honorable Gina McCarthy Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Ave., N. W. Washington, DC 20460

Re: EPA-HQ-OAR-2013-0602

Dear Administrator McCarthy:

On June 18, 2104, the Environmental Protection Agency ("EPA") issued its proposed rule on existing power plant emissions. t 

### In that proposed rule, the EPA made several findings that strongly suggest that consultation with the Fish and Wildlife Service, pursuant to Section 7 of the Endangered Species Act ("ESA"), is required. However, no such consultation occurred during the development of the Clean Power Plan. In order to ensure that the EPA fulfills its responsibilities under the ESA, we request a detailed explanation of your decision not to consult, and that you append this letter and any documentation concerning your decision not to consult to the appropriate regulatory docket, as described below.

Consultation is required when a federal action may affect an individual member of an endangered species. The effect caused by the federal action need not be an adverse effect. A beneficial, discountable, or insignificant effect of a federal action would also require consultation. In the proposed rule for existing power plants, the EPA found that the Clean Power Plan would have "positive" effects. This is not too surprising given that USFWS and NMFS recovery plans address climate change or global warming as affecting or possibly affecting dozens of endangered and threatened species. z 

### EPA's conclusion that the proposed rule would have "positive" or beneficial

t U.S. Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34830, 34933 (June 18, 2014), Docket ID: EPA-HQ-OAR-2013-0602 ("Clean Power Plan") Z While EPA apparently feels that the effects of GHGs on species are negligible, the Services responsible for listing species under the ESA have found that climate change affects a plethora of endangered species. According to recovery plans from the USFWS and NMFS, the following species are or may be affected by climate change or global warming: Akiapolaau, Akohekohe, Atlantic salmon, Butte County meadowfoam, Chinook salmon, Chiricahua leopard frog, Chum salmon, Hawaii 'Akepa, Hawaii creeper, Holmgren milk-vetch, Kauai akialoa, Kauai'o'o, Large Kauai thrush, Mat-forming quillwort, Maui'akepa, Maui parrotbill,Moloka'i creeper, Moloka'i thrush, Nukupu'u, Oahu alauahio, Oahu'Elepaio, Orca,'O'u, Palila, Po'ouli, Puaiohi, Shivwitz milkvetch, Soft-leaved Indian paintbrush, Spalding's catchfly, Sperm whale, Steelhead trout, Steller sea-lion, White abalone, Whooping crane. Reeovery plans can be found at: http: w%Y,v. hk S.go\ cnd;ln g erccl sq^ecie, rero\ cr} -plun..html.

http://naturaIresources.house.gov

### The Honorable Gina McCarthy

June 11, 2015 Page 2

effects triggers the consultation requirements of Section 7 of the ESA. 3 

### EPA also concluded that the impacts of the rule would be "very small" or "remote," and cites a case addressing the effects of an accidental missile explosion — the chances of which were estimated to be one in 100 million to 1 in one trillion. 4 

### There is reason to believe that the impacts of the rule are far less remote than the chances of an errant missile explosion.
It seems clear that the Clean Power Plan is likely to adversely affect certain species. For example, hundreds of endangered manatees rely on the warm water outflows from several electric generating units in Florida. The National Pollutant Discharge Elimination System ("NPDES") permits covering several of these of generating units affirm each's role in protecting manatees from water temperature fluctuations by including a"Manatee Protection Plan." 5 

### The possibility that the Clean Power Plan could cause the closure or alteration of operations at electric generating units that provide warm water central to conservation of endangered manatees 6

### strongly suggests that the EPA should have consulted with the Fish and Wildlife Service ("FWS"). Recent modeling by the Energy Information Agency indicates there will be a substantial reduction in coal-fired generation as a result of the rule on existing power plant emissions. 7 

### Additionally, the EPA's own modeling suggests that at least two electric generation facilities with manatee protection plans will be prematurely retired as a result of the Clean Power Plan.g
Please include these comments in the appropriate docket for the Clean Power Plan and include within that docket any documents regarding EPA's "may affect" analysis for this rule as well as the decision of the EPA not to consult with the FWS pursuant to its responsibilities under Section 7 of the ESA.
Please confirm compliance by letter immediately. Please have your staff contact Rob Gordon or Mike Freeman at 202-225-2761 with any questions.

Sincerely, 

# L:^l C ^ ;, Rob Bishop Chairman Committee on Natural Resources

3 Conservation Cong. v. Finley, 774 F.3d 611, 615 (9 `h Cir. 2014) (discussing the "may affect" determination). 4 79 Fed. Reg. 34830, 34934 (citing Ground Zero Center for Non-Violent Action v. U.S. Dept. of Navy, 383 F.3d 1082, 1091-92 ( 

### 9 `h 

### Cir. 2004)).

s Manatee Protection Plans,http://myfwc.com/wildlifehabitats/managed/manatee/protection-plans/ 6 Florida Manatee Management Plan, available at: http://myfwc.com/media/214332/manatee_mgmt_plan.pdf 7 US Energy Information Agency, Analysis of the Impacts of the Clean Power Plan, Pg. 29 May, 2015. 8 httll: % ^k %ti \%.reguLiticm,
, no\ =1doCLunCntDetui1:1) E1 1 A-110-0. =\R-201 '-ti602-02' 1(Big Bend Power Station and 4 units at Crystal River Energy Complex, both in Florida).



### cc: The Honorable Raul Grijalva, Ranking Member, Committee on Natural Resources