UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5 77 West Jackson Boulevard Chicago, IL 60604 - 3590

MEMORANDUM SUBJECT: Endangered Species Act Considerations in Connection with EPA’s Withdrawal of

Certain Federal Aquatic Life Water Quality Criteria Applicable to Wisconsin
. FROM: Linda Holst, Chief

Water Quality

Standards Branch TO : The Record DATE: June 8, 2011 I. Legal Background The Endangered Species Act (ESA) Section 7(a)(2) requires that , in this instance, EPA, in consultation with the U.S. Fish and Wildlife Service (FWS) , ensure that actions authorize d , funded , or carried out are not likely to jeopardize the continued existence of federally
- listed threatened or endangered species or result in the destruction or adverse modification of designated critical habitat of such species (16 U.S.C. 1536(a)(2)) . Under relevant ESA implementing regulations, consultation is required for actions that “may affect” listed species or designated critical habitat and is not required where the action has “n o effect” on such species or critical habitat ( 50 CFR 402.14 ) . Upon initiation of consultation, ESA S ection 7(d) prohibits irreversible or irretrievable commitments of resources that have the effect of foreclosing the formulation or implementation of reaso nable and prudent alternatives which would not violate Section 7(a)(2) of the ESA (16 U.S.C. 1536(d))
. II. EPA Approved Wisconsin’s Revised Aquatic Life Criteria and Initiated ESA Consultation In 1997 Wisconsin adopted revised water quality standards to comp ly

with EPA’s 1995 Wa ter Quality Guidance for the Great lakes System (Guidance)
. The Guidance identified federal water quality criteria , and equations resulting in criteria , that would apply in the event that EPA disapproved S tate water quality standards under the Guidance. In 2000, EPA disapproved Wisconsin’s revised equations resulting in aquatic life criteria (hereinafter referred to as criteria) for chronic and acute copper and nickel, and Wisconsin’s revised aquatic life criteria for chronic endrin and selenium. Consequently EPA published a final rule that identif ied the f ederal water quality criteria that applied specificall y to waters of the Great Lakes S ys tem (defined in 40 CFR 132.2) in Wisconsin designated for aquatic life use as a result of the di sapproval (40 CFR 132.6(f)
- (j))
. In July 2009 , f ollowing a May 200 9 submission from Wisconsin , EPA approved the following revised S tate water quality criteria s ubject to consultation with FWS under the ESA:

 Chronic and acute copper for surface waters in Wisconsin designated for aquatic life use  Chronic and acute nickel for surface waters in Wisconsin designated for aquatic life use  Chronic endrin for all surface waters in Wisconsin designated for aquatic life use2

 Chronic selenium for all surface waters in Wisconsin designated for aquatic life use except Limited Forage Fish use 1 The State’s revised and EPA
- approved aquatic life criteria are identical to, or appropriately slightl y less stringent than, the federal aquatic life criteria. The State’s criteria that are slightl y less stringent than the federal criteria were derived by the State using scientifically defensible, site
- specific modifications of the federal criteria, as described in detail in the p reamble. EPA approved the State’s revised aquatic life criteria, determining that the criteria are protective of the designated use and consistent with Clean Water Act ( CWA) Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and 132
. EPA initiated informal consultation with FWS under ESA Section 7(a) (2) on the approval action in 2008 , and formall y documented EPA’s determination regarding ESA in July 2009. 2 EPA deferred to the national consultations initiated by EPA Headquarters on EPA’s published water quality criteria for the protection of aquatic li fe, and concluded that approving Wisconsin’s water quality standards subject to the outcome of the national consultations did not constitute an irreversible or irretrievable commitment of resources within the meaning of ESA Section 7(d)
. EPA based its determination on its retention of CWA authority to implement alternatives that comply with ESA Section 7(a)(2). In particular, EPA retain s the full range of options available under CWA Section 303(c) for ensuring water quality standards meet the requirements o f the CWA
. III. EPA is Withdrawing the Applicable Federal Aquatic Life Criteria Wisconsin’s revised and EPA
- approved criteria adequatel y protect waters of the State designated for aquatic life use at a level consistent with the Guidance and the CWA. Therefore, EPA’s federal criteria are no longer needed , and may be withdrawn
. In this rule, EPA is withdrawing the following federal criteria for waters of the Great Lakes S ys tem in Wisconsin designated b y the State for aquatic life use:

 C hronic and acute copper (40 CFR 132.6(f)) ,  Chronic and acute nickel (40 CFR 132.6(f)),  C hronic endrin (40 CFR 132.6(f)

— with the exception of the aquatic life criterion for waters designated as Warm Water Forage Fish and Warm Water Sportfish use ) , 3 and  C hronic selenium (40 CF R 132.6(g)

— with the exception of the aquatic life criterion for waters designated as Limited Forage Fish use )
. IV. ESA Considerations in Connection With EPA’s Rule Withdrawal EPA has determined that the withdrawal of the federal aquatic life criteria will have no effect on listed species for the State’s criteria that are identical to the federal criteria. EPA defers to the national ESA consultations on EPA’s approvals of Wisconsin’s revised criteria that are slightly less stringent than the federal crit eria, and believes withdrawing the se federal criteria will have no impact of concern on listed

1 EPA withheld action on Wi sconsin’s revised chronic selenium criterion for Limited Forage Fish waters, since the criterion was based on toxicity studies that exposed tes t organisms to selenium through the water column. Currently available data indicate that toxicity to fish primarily occurs as a result of dietary exposure to selenium, and therefore a water column exposure - based criterion may not protect aquatic life uses for Limited Forage Fish waters. 2 Holst, Linda. “Determination regarding Endangered Species Act issues associated with EPA’s approval of revisions to Wi sconsin’s water quality standards rules at W AC Chapter NR 105.” EPA Region 5. 01 July 2009. 3 EPA is n ot withdrawing the chronic aquatic life use criterion for endrin in waters designated as W arm Wa ter Forage Fish and Wa rm W ater Sportfish until after W isconsin corrects the number published in the S tate’s regulations at NR 105.06 (0.05 μg/L) to reflect the S tate’s revised and EPA- approved criterion (0.036 μg/L).3

species. The following subsections further describe EPA’s ESA considerations in connection with the withdrawal. A. Withdrawal of Federal Criteria Identical to Wis consin’s EPA- approved Criteria The following Wisconsin
- revised and EPA
- approved criteria are identical to the federal criteria being withdrawn , and are therefore consistent with CWA Section s 101(a)(2) and 303(c)(2), and 40 CFR Part s 131 and 132:

 Acute nic kel for all Wisconsin surface waters designated for aquatic life use  Chronic endrin for all Wisconsin surface waters designated as Cold Water aquatic life use  Chronic s elenium for all Wisconsin surface waters designated as Cold Water, Warm Water Forage Fi sh , and Warm Water Sport Fish aquatic life use Given that Wisconsin’s revised and EPA
- approved aquatic life criteria for the pollutants listed above are identical to the federal criteria, withdrawing the federal criteria will have no effect on listed spec ies and therefore, do not require additional ESA consultation. As noted above, EPA initiated informal consultation with FWS on EPA’s approval of the State’s revised criteria in 2009 , and EPA deferred to the previously

initiated national consultations on EP A’s Guidance criteria for the protection of aquatic life. B. Withdrawal of Federal Criteria Slightly More Stringent than Wisconsin ’s EPAapproved Criteria The following Wisconsin
- revised and EPA
- approved criteria are slightl y less stringent than the federal criteria in 40 CFR Part 132 , due to scientificall y defensible, State
- specific modifications to the federal criteria as described in the preamble :
 C hronic and acute copper criteria for all aquatic life uses  C hronic nickel criteria for Cold Water, Warm Water Sport Fish, Warm Water Forage Fish, Limited Aquatic Life, and Limited Forage Fish aquatic life uses  C hronic endrin criteria for Limited Aquatic Life and Limited Forage Fish aquatic life uses  C hronic selenium criteri on for Limited Aquatic Life designated uses EPA approved Wisconsin’s methods for deriving the ab ove criteria as acceptable Stat e - specific modifications of the federal criteria
. The equations used by the S tate to calculate the above criteria result in criteria that are protective of the use, and are consistent with CWA Section s 101(a)(2) and 303(c)(2), and 40 CFR Part s 131 and 132
. Therefore, EPA believes withdrawing the federal aquatic life criteria for the pollutants listed above will not result in any impacts of concern prior to conclusion of ESA consultation on Wisconsin’s revised and EPA
- approved criteria (initiated in 2008)
. Furthermore, EPA deferred to the national consultations for EPA’s approvals of the State ’s revised aquatic life criteria, concluding that the approval of the State’s criteria subject to the outcome of the national consultations is consistent with ESA Section 7(d). VI. Summary EPA’s withdrawal of the applicable federal aquatic life criteria will allow the State of Wisconsin to implement its revised and EPA
- approved criteria un der the approved State program. EPA believes that withdrawing the federal criteria that are identical to the State’s EPA
- approved criteria will have no effect on listed species, and withdrawing the federal criteria that are slightly more stringent than the State’s revised criteria will have no impact of concern on listed species. Furthermore , EPA defers to the4

ongoin g consultation on the approved S tate criteria, consistent with ESA Section 7 ( d)
. EPA’s belief is based on the following: 1. Wisconsin’s EPA - approved criteria are protective of the use and consistent with the Guidance and the CWA and its implementing regulations
. 2. Wisconsin used appropriate and scientifically defensible State - specific modifications of the federal criteria to derive its revi sed criteria
. 3. EPA’s July

2009 approval of Wisconsin’s criteria for these pollutants is subject to the outcome of ongoing ESA consultation. While consultation is ongoing, EPA has already determined that the approval will not cause any irreversible or irretrievable commitment of resources within the meaning of ESA Section 7(d) and that EPA retains sufficient authority under the CWA to implement alternatives that might be determined in the consultation to be needed to compl y with ESA Section 7(a)(2). To date, no impacts of concern have been identified for those species which either reside in or rely on Wisconsin fresh water s ys tems. EPA believes that withdrawing the federal criteria, which will leave identical or slightl y less stringent Wisconsin criteria in place as governing CWA water quality standards, is consistent with ESA requirements.