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 authorized, 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 “no 

effect” on such species or critical habitat (50 CFR 402.14). Upon initiation of consultation, ESA Section 

7(d) prohibits irreversible or irretrievable commitments of resources that have the effect of foreclosing 

the formulation or implementation of reasonable 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 comply with EPA’s 1995 Water 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 State 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 identified the federal water quality criteria that applied specifically to waters 

of the Great Lakes System (defined in 40 CFR 132.2) in Wisconsin designated for aquatic life use as a 

result of the disapproval (40 CFR 132.6(f)-(j)). 

In July 2009, following a May 2009 submission from Wisconsin, EPA approved the following revised 

State water quality criteria subject 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 use
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 Chronic selenium for all surface waters in Wisconsin designated for aquatic life use except 

Limited Forage Fish use1

The State’s revised and EPA-approved aquatic life criteria are identical to, or appropriately slightly less 

stringent than, the federal aquatic life criteria. The State’s criteria that are slightly 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 preamble. 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 formally documented EPA’s determination regarding ESA in July 2009.2EPA deferred to the 

national consultations initiated by EPA Headquarters on EPA’s published water quality criteria for the 

protection of aquatic life, 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 

retains the full range of options available under CWA Section 303(c) for ensuring water quality

standards meet the requirements of the CWA. 

III. EPA is Withdrawing the Applicable Federal Aquatic Life Criteria

Wisconsin’s revised and EPA-approved criteria adequately 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 System in Wisconsin designated by the State for aquatic life use:

 Chronic and acute copper (40 CFR 132.6(f)), 

 Chronic and acute nickel (40 CFR 132.6(f)),

 Chronic 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),

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and 

 Chronic selenium (40 CFR 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 criteria, and believes withdrawing these federal criteria will have no impact of concern on listed 

 

1

EPA withheld action on Wisconsin’s revised chronic selenium criterion for Limited Forage Fish waters, since the criterion was 

based on toxicity studies that exposed test 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 

Wisconsin’s water quality standards rules at WAC Chapter NR 105.” EPA Region 5. 01 July 2009.

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EPA is not withdrawing the chronic aquatic life use criterion for endrin in waters designated as Warm Water Forage Fish and 

Warm Water Sportfish until after Wisconsin corrects the number published in the State’s regulations at NR 105.06 (0.05 μg/L) 

to reflect the State’s revised and EPA-approved criterion (0.036 μg/L).
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species. The following subsections further describe EPA’s ESA considerations in connection with the 

withdrawal. 

A. Withdrawal of Federal Criteria Identical to Wisconsin’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 Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts

131 and 132:

 Acute nickel 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 selenium for all Wisconsin surface waters designated as Cold Water, Warm Water 

Forage Fish, 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 species 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 EPA’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 slightly less stringent than the federal 

criteria in 40 CFR Part 132, due to scientifically defensible, State-specific modifications to the federal 

criteria as described in the preamble:

 Chronic and acute copper criteria for all aquatic life uses

 Chronic nickel criteria for Cold Water, Warm Water Sport Fish, Warm Water Forage Fish, 

Limited Aquatic Life, and Limited Forage Fish aquatic life uses

 Chronic endrin criteria for Limited Aquatic Life and Limited Forage Fish aquatic life uses

 Chronic selenium criterion for Limited Aquatic Life designated uses

EPA approved Wisconsin’s methods for deriving the above criteria as acceptable State-specific 

modifications of the federal criteria. The equations used by the State to calculate the above criteria result 

in criteria that are protective of the use, and are consistent with CWA Sections 101(a)(2) and 303(c)(2), 

and 40 CFR Parts 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 under 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 the 
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ongoing consultation on the approved State 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 revised 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 comply 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 systems. 

EPA believes that withdrawing the federal criteria, which will leave identical or slightly less stringent

Wisconsin criteria in place as governing CWA water quality standards, is consistent with ESA 

requirements.