# APPENDIX F

COORDINATION BETWEENTHE ENVIRONMENTAL PROTECTION AGENCY, FISH ANDWILDLIFE SERVICE ANDNATIONAL MARINE FISHERIES SERVICE REGARDING DEVELOPMENT OFWATERQUALITY CRITERIA AND WATERQUALITY STANDARDS UNDER THECLEAN WATERACT

July 27, 1992

Signed by: Ralph Morgenweck, Assistant Director 

### Fish andWildlife Enhancement U.S. 

### Fish andWildlife Service Dr. Tudor Davies, Director Office of Science 

### andTechnology 

### U.S. Environmental Protection Agency Dr. Nancy Foster, Director 

### Office of 

### Protected Resources 

### National Marine Fisheries Service

WATER QUALITY STANDARDS HANDBOOK

SECOND EDITIONAppendixF-Endangered Species ActJointMemorandum
Coordination Between the Environmental Protection Agency, the Fish and Wildlife Service and the National Marine Fisheries Service Regarding the Development of Water Quality Criteria and

Water Quality Standards Under the Clean Water Act PURPOSE This memorandum sets forth the procedures to be followed by Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and the Environmental Protection Agency (EPA) to insure compliance with Section 7of the ESA in the development of water quality criteria published pursuant to Section 304(a) of the Clean Water Act (CWA) and the adoption of water quality standards under Section 303(c) of the CWA. Consultation will be conducted pursuant to 50 C.F.R. Part 402. Regional Offices of EPAand the Services may establish agreements, consistent with these procedures, specifying how they will implement this Memorandum. I. BACKGROUND A. Guiding Principles The agencies recognize that EPA's water quality criteria and standards program has the express goal of ensuring the protection of the biological integrity of U.S. waterbodies and associated aquatic life. The agencies also recognize that implementation of the CWAin general, and the water quality standards program in particular, is primarily the responsibility of states. EPA's role in this program is primarily to provide scientific guidance to states to aid in their development of water quality standards and to oversee state adoption and revision of standards to insure that they meet the requirements of the CWA. In view of the decentralized nature of EPA's water quality standards program responsibilities, and the agencies' desire to carry out their respective statutory obligations in the most efficient manner possible, the agencies believe that consultation should occur, to the maximum extent possible, at the national level. Should additional coordination be necessary on the regional level, the procedures outlined below are designed to insure that the Services are integrated early into EPA's oversight of the states' standards adoption process so that threatened and endangered species concerns can be addressed in the most efficient manner possible.

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. . B. Leaal AuL, Section.7 of the ESA Section 7'of the ESAcontains several provisions which require federal agencies to take steps to conserve 

### endangered and threatened species, andwhich impose the responsibility on agencies to insure, in consultation with the appropriate Service, that certain actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Section 7also requires agencies to confer with the appropriate Service regarding actions affecting species or critical habitat that have been proposed for listing or designation under section 4, but for which nofinal rule has been issued. In particular, section 7(a)(l) provides that federal agencies shall "utilize their authorities in furtherance of the purposes of (the ESA] bycarrying out programs for the conservation of endangered species and thre%tened species

. . ." Section 7(a)(2) requires federal agencies to insure, in consultation with the appropriate Service, that actions which they authorize, fund or carry out 

### are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined

. . .to be critical." Section 7(a)(4) requires aconference for actions that 

### are "likely to jeopardize the continued existence" of species proposed for listing or that are likely to "result in the destruction or adverse modification@* of proposed critical habitat. Theprocedures for consultation between federal agencies and the Services under section 7of the 

### ESAare contained in 50 C.F.R. Part 402. Section 402.14 of these regulations requires that agencies engage in formal consultation with the appropriate Service where any action of that agency mayaffect listed species or critical habitat. Formal consultation is not required if the action agency prepares abiological assessment or consults informally with the appropriate Service andobtains the written concurrence of the Service that the action is not likely to adversely affect listed species or critical habitat. Formal consultation culminates in the issuance of abiological opinion bythe Service which concludes whether the agency action is likely to jeopardize the continued existence of alisted species or result in the destruction or adverse modification of critical

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F-2 (9114193)Appendix F-Endangered Species ACYJoint Memorandum

habitat.' If the Service makes ajeopardy finding, the opinion shall include reasonable and prudent alternatives, if any, to avoid jeopardy. If the Service anticipates that anaction would result in 

### anincidental take of alisted species (defined in 50 C.F.R. 402.02), the Service shall include an incidental take statement and reasonable and prudent measures that the Director considers necessary or appropriate to minimize such impact. Such measures cannot alter the 

### basic design, location, scope, duration or timing of the action and

### mayinvolve only minor changes. Evaluation of the potential effects of anagency action on listed species or their habitat is to bebased upon the best scientific and commercial data available or which can beobtained prior to or during the consultation. 50C.F.R. 402.14(d). 3. Water Quality Standards Develooment Under the CWA Section 303of the Clean Water Act provides for the development by states of water quality standards which are designed to protect the public health or welfare, enhance the quality of water and serve the purposes of the CWA.Such standards consist of designated uses of waterways (e.g., protection and propagation of fish, shellfish, andwildlife) and criteria which will insure the protection of designated uses. Under the CWA,the development of water quality standards is primarily the responsibility of States. section 304(a) of the CWA, However, pursuant to EPAfrom time to time publishes water quality criteria which serve 

### asscientific guidance to beused by states in establishing and revising water quality standards. These EPAcriteria are not enforceable requirements, but are recommended criteria levels which states mayadopt 

### aspart of their legally enforceable water quality standards; states may adopt other scientifically defensible criteria in lieu of EPA's recommended criteria. See40C.F.R. 131.11(b). Standards adopted 

### bystates constitute enforceable requirements with which permits issued by States or EPAunder section 402of the Clean Water Act must assure compliance. CWA section 301(b)(l)(C). Under section 303(c) of the CWA,EPAmust review water quality standards adopted by states and either approve them if the standards meet the requirements of the CWAor disapprove them if the standards fail to doso. However, EPA's disapproval of state water quality standards does not alter the enforceable requirements with which CWAsection 402permits must comply, because the state standards remain in full force and

'Any reference in this document to "jeopardy" for purposes of section 7of the 

### ESAis intended also to include the concept of destruction or adverse modification of critical habitat.

3WaterQuality StandardsHandbook-SemndEdition

effect under state law. Thestate-adopted standards remain effective for all purposes of the CWA until they are revised by the state or EPApromulgates federal water quality standards applicable to the state.

. QCEDURES A

- Wat ua e '

EPAwill integrate the Services into its criteria development process by consulting with the Services regarding the effect EPA's existing aquatic life criteria (and any newor revised criteria) mayhave on listed endangered or threatened species. References below to endangered or threatened species include species proposed to be listed bythe Services. In addition, EPAwill include the Service(s) onthe aquatic life criteria guidelines revision committee which is currently revising the methodological guidelines that will form the technical basis for future criteria adopted by EPA. I. Consultation on Existinca Criteria EPAhas developed andpublished aquatic life criteria documents explaining the scientific basis for aquatic life criteria that EPAhas published. EPAwill consult with the appropriate Service regarding the aquatic life criteria as described below.
SteD 1: Services' Identification of Soecies that MavBeAffected $vWater Qualitv Dearadation The Services and EPAwill request their regional offices to identify the endangered andthreatened species within their jurisdictions that maybeaffected bydegraded water quality. Each Service will provide EPAwith aconsolidated list of these species. Tofacilitate this process, the initial species list will include information identifying the areas where such species are located, adescription of the pollutants causing the water quality problems affecting the species (if known) andany other relevant information provided bythe Services' regional offices. In future consultations, the Services will provide aspecies list, as required in 50C.F.R. Part 402, and access to any relevant data concerning identified species.

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F-4 (9/14/93)Appendir F-Endangered Species ACVJob Memorandum

SteD 2: *. *

EPAInitlatlon of Informal consultation and Performance of Bioloaical Assessment Based upon areview of information provided bythe Services under Step 1, above, and any other information available to EPA (as described by 50C.F.R. 402.12(f)(1)-(5)), EPAwill determine what species maybeaffected bythe aquatic life criteria and will request informal consultation with the appropriate Service regarding such species. EPAwill submit to the appropriate Service abiological assessment that evaluates the potential effects of the criteria levels onthose species. The biological assessment will bedeveloped in an iterative process between EPA andthe Service (initially involving submission of a"pilot" assessment addressing 2or 3chemicals), and is expected to contain the information listed in the Appendix of this Memorandum.
Step 3: Further steos Based onResults of Bloloaical Assessment Based upon the findings madeby EPAin the Biological Assessment, the consultation will proceed as follows (see 50 C.F.R. 402.12(k)):

- For those criteria/species where EPAdetermines that there is noeffect, EPAwill not initiate formal consultation.

- For those criteria/species where there is a"may affect" situation, and EPAdetermines that the species is not likely to beadversely affected, the appropriate Service will either concur or nonconcur with this finding under Step 4, below.

- Where EPAfinds that aspecies is likely to beadversely affected, formal consultation will occur between the agencies under Step 5, below.

Service Reviews Biological Assessment and Responds tQ

Within 30days after EPAsubmits acomplete biological assessment to the Service, the Service will provide EPAwith a written response that concurs or does not concur with any findings by EPAthat species are not likely to beadversely affected by EPA's criteria. For those species/criteria where the Service concurs in EPA’s finding, consultation is concluded and noformal consultation will benecessary. For any species/criteria where the Service does not concur in EPA's finding, formal consultation onthe criteria/species will occur under step 5, below (see 50C.F.R. 402.14).

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SteD 5: Formal Consultation Formal consultation will occur between the agencies (coordinated bythe agencies' headquarters' offices) beginning on the date the Service receives awritten consultation request from EPAregarding those species where EPAor the Service believe there is likely to beanadverse affect, asdetermined under steps 3and 4, above. The consultation will bebased onthe information supplied by EPAin the biological assessment and other relevant information that is available or which can 

### feasibly becollected during the consultation period (see 50 C.F.R 402.14(d)). The Service will issue abiological opinion regarding whether any of the species are likely to bejeopardized bythe pollutant concentrations contained in EPA's criteria. Any jeopardy conclusion will specify the specific pollutant(s), specie(s) andgeographic area(s) which the Service believes is covered by such conclusion. If the Service makes ajeopardy finding, it will identify any available reasonable and prudent alternatives, which may include, but are not limited to, those specified below. EPAwill notify the Service of its action regarding acceptance and implementation of all reasonable and prudent alternatives. 1. EPAworks with the relevant State during its pending triennial review period to insure adoption (or revision) of water quality standards for the specific pollutants andwater bodies that will avoid jeopardy. Such adoption or revision mayinclude adoption of site-specific criteria in accordance with EPA's sitespecific criteria guidance, or other basis for establishing more stringent criteria. 2. EPAdisapproves relevant portions of state water quality standards (see 40C.F.R. 131.21) and initiates promulgation of federal standards for the relevant water body (see 40C.F.R. 131.22) that will avoid jeopardy. Where appropriate, EPAwill promulgate such standards onanexpedited basis. 2. Service . *

Pwipation in Committee Revisinu Criteria'2 

### thodoloq&al GuideAnEPAcommittee is currently charged with revising and updating the methodological guidelines which will in the future befollowed by EPAwhen it issues new304(a) water quality criteria. The Service(s) will become amemberof the Workgroup asanobserver/advisor to insure that the methodological guidelines take into account the need to protect endangered and threatened species. The guidelines will besubject to peer review and public notice and comment prior to being finalized. During the public comment period, the Services will provide the agencies' official position onthe guidelines.

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F-6 (9114193)Am~ndix F-Endannertd SDKGS Act Joint Memorandum

3. Cmltation wit& the Services onNewor Revised w fe Cr . zenwildlife CriterLq WhenEPAdevelops and publishes newor revised aquatic life criteria 

### andnewwildlife and sediment criteria under section 304(a), EPAwit1 request consultation with the Services onsuch criteria, which will proceed in accordance with the procedures outlined in section II.A.l of this Memorandum.

B. 

### EPAgeview of State 

### Water Qualitv Stand- Under Section 303 gf the Cwq In order to insure timely resolution of issues related to protection of endangered or threatened species, 

### EPAand the Services will coordinate in the following manner with regard to 

### state water quality standards that are subject to EPAreview and approval under section 303(c) of the CWA. 3. 

### . . ParticiDat ion of the Services in EPA/State Planning Meetiws Unless other procedures ensuring adequate coordination are 

### agreed to bythe regional offices of 

### EPAandthe Service(s), 

### EPA regional offices will request in writing that the Services attend 

### EPA/state meetings where the state's 

### plan for reviewing and possibly revising water quality standards is discussed. The invitation will include any preliminary plans submitted bythe 

### state andany suggestions offered by EPAto the state that will bediscussed at the planning meeting, aswell asarequest for the Services to suggest any additional topics of concern to them. Service staff will attend the planning session and be 

### prepared to identify areas where threatened 

### andendangered species 

### that maybeaffected bythe proposed action maybe present in the state andto provide access to any data available to the Services in the event additional discussions will need 

### to occur. If the Service does not intend to attend the planning meeting, it will notify the EPAregional office in writing. If threatened and endangered species maybepresent in the waters subject to the standards, such notice will include aspecies list. 2. .

Consultation onw Review of State Water Quu dsWhere Fedwllv Listed Swecies Are Present Except in those cases where the Service's Director, 

### at the Washington Office level, requests consultation, 

### EPAmaycomplete its 

### review and approval of state water quality standards without requesting consultation where (1) the state's criteria 

### are as stringent 

### asEPA's section 

### 304(a) aquatic life criteria and consultation between EPAandthe appropriate Service on EPA's 7
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criteria has resulted in aService concurrence with an EPA finding of "not likely to adversely affect," a"no jeopardy" biological opinion (or EPA's implementation of areasonable and prudent alternative contained in the Service's V'jeopardy@l biological opinion), and EPA's adherence to the terms and conditions of any incidental take statement and (2) the state has designated use classifications for the protection andpropagation of fish and shellfish. However, if aState adopts water quality standards consistent with the provisions of the preceding paragraph, but the Service believes that consultation maybenecessary in either of the circumstances described below, only the Service's Director, at the Washington Office level, mayrequest consultation with EPA. Suchconsultation maybenecessary (1) where review of astate water quality standard identifies factors not considered during the relevant water quality criterion review under this Memorandum which indicate that the standard mayaffect anendangered or threatened species, or (2) where newscientific information not available during the earlier consultation indicates that the criterion, as implemented through the state water quality standard, mayaffect endangered or threatened species in amanner or to anextent not considered in the earlier consultation. If astate submits water quality standards containing aquatic life criteria that are less stringent than EPA's section 304(a) aquatic life criteria, or use designations that donot provide for the protection andpropagation of fish and shellfish, EPAwill consult with the appropriate Service regarding the state's standards. EPA's request for formal or informal consultation (as appropriate) shall bemadeasearly aspossible in the standards development process (e.g., whenstandards regulation are under development by the state). The EPAregion should not wait until standards are formally submitted bythe state to request such consultation. If astate water quality standard under review by EPA relates to specie(s), pollutant(s) and geographic area(s) that were the subject of ajeopardy opinion issued bythe Service under section 1I.A. of this Memorandum, EPAwill consider the opinion (and any reasonable and prudent alternatives specified by the Service) and take action that, in EPA's judgment, will insure that water quality standards applicable to the state are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of species, critical habitat. EPAwill notify the Service that issued the biological opinion of its action, in accordance with 50C.F.R. 402.15. Except in those cases where the Service's Director, at the Washington Office level, requests consultation, EPAmaytake

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F-8 (9114193)A~vendix F-Endannercd Svecies ACYJoint Memoradum

action pursuant to CWAsection 303(c)(4) to promulgate federal standards applicable to awater of the state without requesting consultation where (1) the aquatic life criteria promulgated by EPAare no less stringent than EPA's section 304(a) criteria guidance and consultation between EPAand the Service on EPA's criteria has resulted in aService concurrence with an EPA finding of "not likely to adversely affect," a"no jeopardy" biological opinion (or EPA's implementation of areasonable and prudent alternative contained in the Service's ltjeopardytt biological opinion), and EPA's adherence to the terms and conditions of any incidental take statement and (2) the applicable use classifications provide for the protection and propagation of fish and shellfish. However, if EPApromulgates water quality standards consistent with the provisions of the previous paragraph, but the Service believes that consultation maybenecessary in either of the circumstances described below, only the Service's Director, at the Washington Office level, mayrequest consultation with EPA. Such consultation maybenecessary (1) where review of the water quality standard identifies factors not considered during the relevant water quality criterion review under this Memorandum which indicate that the standard mayaffect anendangered or threatened species, or (2) where newscientific information not available during the earlier consultation indicates that the criterion, as implemented through the water quality standard, may affect endangered or threatened species in amanner or to an extent not considered in the earlier consultation.

. Revisions to Aareement EPAand the Services mayjointly revise the procedures agreed to in this document based upon the experience gained in the pilot consultation on EPA's aquatic life criteria or other experience in the implementation of the above procedures. IV, Third Party Enforcement Theterms of this Memorandum are not intended to be enforceable by any party other than the signatories hereto. V. Reservation of Aaencv Positions Noparty to this Memorandum waives any administrative claims, positions or interpretations it mayhave with respect to the applicability or the enforceability of the ESA.

. VI. Effective Date, Termination This Memorandum will become effective upon signature by each of the parties hereto. Anyof the parties maywithdraw from this Memorandum upon 60days' written notice to the other parties;

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(9/14/93) F-9orovlded that any Section - :znsuitat:on ;overea cy tne terms Of

this Yemorandun that LSpena1r.g at tne :13nenoclce sf :,<lthdrawal 1s received bythe parties, 3na :pAoseA<t;*,'lt;es covered bythis Memorandum that beqrn the consultation process :,;lth the SO-day notice period, ,.~l?! Lontlnue :I cegoverned b)' -ne Frocedures in Chis Yemorandu;.

Ralph Morqenweck, Assistant 31rector Fish andWildlife Enhancement

.. I.S. Fish and kiildllfe Service

Dr. Tudor T. Davies, Director Office of Science and Technology U.S Environmental Protection Aqency

Dr. Nancy Foster, Director Office JL Protected Resources National Marine Fisheries Servrce

10 Date

3ate

Date

F-10 (9114193)Appendix F-Enabgcmd Spccicr Ad Joint Manorandum APPENDIX sessment I. Introduction/Overview 

### A. Benefits of pollution reduction relative to endangered and threatened species/description of the ESA B. Role of Water Quality Standards under the CWA 

### C. Overview of water quality criteria (philosophy, objectives, methodology) D. Discussion of comparative sensitivity of listed species (and surrogates) with criteria database 

### E. Description of Fact Sheet contents

- data included

- description of howspecific criteria derived

- description of logic/thought processes supporting findings of effect on listed species II. Fact Sheets Pollutant-specific fact sheets will becompiled which evaluate the available data and reach conclusions regarding the findings of effect of the criteria onendangered 

### andthreatened species. The fact sheets will bepresented largely in tabular, graph form. 

### A. Summary of toxicological relationships (from water quality criteria documents)

1. acute (acute lethality) 2. chronic (life processes at risk) 3. plants 4. residues 5. other key data 6. updated information through review of ACQUIRE database and other key data B. Taxa at risk vis-a-vis listed species (through use of surrogates, where appropriate) 

### C. Impact of other 

### water quality factors -- describe effects such 

### asenvironmental variability, ph, hardness, temperature, etc.

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D. Assessment of impact on listed species

Findings to bemaderegarding whether each criteria (1) "may affect" and/or (2) is likely to adversely affect, listed species.

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