APPENDIX F 

COORDINATION BETWEEN THE 

ENVIRONMENTAL PROTECTION AGENCY, 

FISH AND WILDLIFE SERVICE AND NATIONAL 

MARINE FISHERIES SERVICE REGARDING 

DEVELOPMENT OF WATER QUALITY CRITERIA AND 

WATER QUALITY STANDARDS UNDER 

THE CLEAN WATER ACT 

July 27, 1992 

Signed by: 

Ralph Morgenweck, Assistant Director 

Fish and Wildlife Enhancement 

U.S. Fish and Wildlife Service 

Dr. Tudor Davies, Director 

Office of Science and Technology 

U.S. Environmental Protection Agency 

Dr. Nancy Foster, Director 

Office of Protected Resources 

National Marine Fisheries Service 

WATER QUALITY STANDARDS HANDBOOK 

SECOND EDITION 
Appendix F - Endangered Species Act Joint Memorandum 

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 7 of 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 

EPA and 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 CWA in 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. 

(9/14/93) F-1 
Water Quality Standards Handbook - Secoad Edition 

. . B. Leaal AuL, Section.7 of the ESA 

Section 7'of the ESA contains several provisions which 

require federal agencies to take steps to conserve endangered and 

threatened species, and which 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 7 also 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 no final 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] by carrying 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 a conference 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. 

The procedures for consultation between federal agencies and 

the Services under section 7 of the ESA are 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 may affect listed species 

or critical habitat. Formal consultation is not required if the 

action agency prepares a biological assessment or consults 

informally with the appropriate Service and obtains 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 a biological opinion 

by the Service which concludes whether the agency action is 

likely to jeopardize the continued existence of a listed species 

or result in the destruction or adverse modification of critical 

2 

F-2 (9114193) 
Appendix F - Endangered Species ACY Joint Memorandum 

habitat.' If the Service makes a jeopardy finding, the opinion 

shall include reasonable and prudent alternatives, if any, to 

avoid jeopardy. If the Service anticipates that an action would 

result in an incidental take of a listed 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 may involve only minor changes. 

Evaluation of the potential effects of an agency action on 

listed species or their habitat is to be based upon the best 

scientific and commercial data available or which can be obtained 

prior to or during the consultation. 50 C.F.R. 402.14(d). 

3. Water Quality Standards Develooment Under the CWA 

Section 303 of 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, and wildlife) 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 

EPA from time to time publishes water 

quality criteria which serve as scientific guidance to be used by 

states in establishing and revising water quality standards. 

These EPA criteria are not enforceable requirements, but are 

recommended criteria levels which states may adopt as part of 

their legally enforceable water quality standards; states may 

adopt other scientifically defensible criteria in lieu of EPA's 

recommended criteria. See 40 C.F.R. 131.11(b). 

Standards adopted by states constitute enforceable 

requirements with which permits issued by States or EPA under 

section 402 of the Clean Water Act must assure compliance. CWA 

section 301(b)(l)(C). Under section 303(c) of the CWA, EPA must 

review water quality standards adopted by states and either 

approve them if the standards meet the requirements of the CWA or 

disapprove them if the standards fail to do so. However, EPA's 

disapproval of state water quality standards does not alter the 

enforceable requirements with which CWA section 402 permits must 

comply, because the state standards remain in full force and 

' Any reference in this document to "jeopardy" for purposes 

of section 7 of the ESA is intended also to include the concept 

of destruction or adverse modification of critical habitat. 

3 
Water Quality Standards Handbook - Semnd Edition 

effect under state law. The state-adopted standards remain 

effective for all purposes of the CWA until they are revised by 

the state or EPA promulgates federal water quality standards 

applicable to the state. 

. QCEDURES 

A 

- 

Wat ua e ' 

EPA will integrate the Services into its criteria 

development process by consulting with the Services regarding the 

effect EPA's existing aquatic life criteria (and any new or 

revised criteria) may have on listed endangered or threatened 

species. References below to endangered or threatened species 

include species proposed to be listed by the Services. In 

addition, EPA will include the Service(s) on the 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 

EPA has developed and published aquatic life criteria 

documents explaining the scientific basis for aquatic life 

criteria that EPA has published. EPA will consult with the 

appropriate Service regarding the aquatic life criteria as 

described below. 

SteD 1: Services' Identification of Soecies that Mav Be Affected 

$v Water Qualitv Dearadation 

The Services and EPA will request their regional offices to 

identify the endangered and threatened species within their 

jurisdictions that may be affected by degraded water quality. 

Each Service will provide EPA with a consolidated list of these 

species. To facilitate this process, the initial species list 

will include information identifying the areas where such species 

are located, a description of the pollutants causing the water 

quality problems affecting the species (if known) and any other 

relevant information provided by the Services' regional offices. 

In future consultations, the Services will provide a species 

list, as required in 50 C.F.R. Part 402, and access to any 

relevant data concerning identified species. 

4 

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

SteD 2: *. * EPA Initlatlon of Inf ormal consultation and Performance 

of Bioloaical Assessment 

Based upon a review of information provided by the Services 

under Step 1, above, and any other information available to EPA 

(as described by 50 C.F.R. 402.12(f)(1)-(5)), EPA will determine 

what species may be affected by the aquatic life criteria and 

will request informal consultation with the appropriate Service 

regarding such species. EPA will submit to the appropriate 

Service a biological assessment that evaluates the potential 

effects of the criteria levels on those species. The biological 

assessment will be developed in an iterative process between EPA 

and the Service (initially involving submission of a "pilot" 

assessment addressing 2 or 3 chemicals), and is expected to 

contain the information listed in the Appendix of this 

Memorandum. 

Step 3: Further steos Based on Results of Bloloaical Assessment 

Based upon the findings made by EPA in the Biological 

Assessment, the consultation will proceed as follows (see 50 

C.F.R. 402.12(k)): 

- For those criteria/species where EPA determines that 

there is no effect, EPA will not initiate formal consultation. 

- For those criteria/species where there is a "may affect" 

situation, and EPA determines that the species is not likely to 

be adversely affected, the appropriate Service will either concur 

or nonconcur with this finding under Step 4, below. 

- Where EPA finds that a species is likely to be adversely 

affected, formal consultation will occur between the agencies 

under Step 5, below. 

Service Reviews Biological Assessment and Responds tQ 

Within 30 days after EPA submits a complete biological 

assessment to the Service, the Service will provide EPA with a 

written response that concurs or does not concur with any 

findings by EPA that species are not likely to be adversely 

affected by EPA's criteria. For those species/criteria where the 

Service concurs in EPA’s finding, consultation is concluded and 

no formal consultation will be necessary. For any 

species/criteria where the Service does not concur in EPA's 

finding, formal consultation on the criteria/species will occur 

under step 5, below (see 50 C.F.R. 402.14). 

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(9/14/93) F-5 
Water Quality Stpodprds Handbook - Second Edition 

SteD 5: Formal Consultation 

Formal consultation will occur between the agencies 

(coordinated by the agencies' headquarters' offices) beginning on 

the date the Service receives a written consultation request from 

EPA regarding those species where EPA or the Service believe 

there is likely to be an adverse affect, as determined under 

steps 3 and 4, above. The consultation will be based on the 

information supplied by EPA in the biological assessment and 

other relevant information that is available or which can 

feasibly be collected during the consultation period (see 50 

C.F.R 402.14(d)). The Service will issue a biological opinion 

regarding whether any of the species are likely to be jeopardized 

by the pollutant concentrations contained in EPA's criteria. Any 

jeopardy conclusion will specify the specific pollutant(s), 

specie(s) and geographic area(s) which the Service believes is 

covered by such conclusion. If the Service makes a jeopardy 

finding, it will identify any available reasonable and prudent 

alternatives, which may include, but are not limited to, those 

specified below. EPA will notify the Service of its action 

regarding acceptance and implementation of all reasonable and 

prudent alternatives. 

1. EPA works with the relevant State during its pending 

triennial review period to insure adoption (or revision) of water 

quality standards for the specific pollutants and water bodies 

that will avoid jeopardy. Such adoption or revision may include 

adoption of site-specific criteria in accordance with EPA's sitespecific criteria guidance, or other basis for establishing more 

stringent criteria. 

2. EPA disapproves relevant portions of state water quality 

standards (see 40 C.F.R. 131.21) and initiates promulgation of 

federal standards for the relevant water body (see 40 C.F.R. 

131.22) that will avoid jeopardy. Where appropriate, EPA will 

promulgate such standards on an expedited basis. 

2. Ser vice . * Pwipation in Committee Revisinu Criteria'2 

thodoloq&al GuideAn EPA committee is currently charged with revising and 

updating the methodological guidelines which will in the future 

be followed by EPA when it issues new 304(a) water quality 

criteria. The Service(s) will become a member of the Workgroup 

as an observer/advisor to insure that the methodological 

guidelines take into account the need to protect endangered and 

threatened species. The guidelines will be subject 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 on the guidelines. 

6 

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

3. Cmltation wit& the Services on New or Revised w 

fe Cr . zenwildlife CriterLq 

When EPA develops and publishes new or revised aquatic life 

criteria and new wildlife and sediment criteria under section 

304 (a), EPA wit1 request consultation with the Services on such 

criteria, which will proceed in accordance with the procedures 

outlined in section II.A.l of this Memorandum. 

B. EPA geview 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, EPA and the 

Services will coordinate in the following manner with regard to 

state water quality standards that are subject to EPA review 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 by the regional offices of EPA and the 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 by the 

state and any suggestions offered by EPA to the state that will 

be discussed at the planning meeting, as well as a request 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 and endangered 

species that may be affected by the proposed action may be 

present in the state and to 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 EPA regional office in writing. If 

threatened and endangered species may be present in the waters 

subject to the standards, such notice will include a species 

list. 

2. . Consultation on w Review of State Water Quu 

ds Where Fedwllv Listed Swecies Are Present 

Except in those cases where the Service's Director, at the 

Washington Office level, requests consultation, EPA may complete 

its review and approval of state water quality standards without 

requesting consultation where (1) the state's criteria are as 

stringent as EPA's section 304(a) aquatic life criteria and 

consultation between EPA and the appropriate Service on EPA's 

7 

(9/14/93) F-7 
Water Quality Standards Handbook - Second Edition 

criteria has resulted in a Service concurrence with an EPA 

finding of "not likely to adversely affect," a "no jeopardy" 

biological opinion (or EPA's implementation of a reasonable 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 and propagation 

of fish and shellfish. 

However, if a State adopts water quality standards 

consistent with the provisions of the preceding paragraph, but 

the Service believes that consultation may be necessary in either 

of the circumstances described below, only the Service's 

Director, at the Washington Office level, may request 

consultation with EPA. Such consultation may be necessary (1) 

where review of a state water quality standard identifies factors 

not considered during the relevant water quality criterion review 

under this Memorandum which indicate that the standard may affect 

an endangered or threatened species, or (2) where new scientific 

information not available during the earlier consultation 

indicates that the criterion, as implemented through the state 

water quality standard, may affect endangered or threatened 

species in a manner or to an extent not considered in the earlier 

consultation. 

If a state 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 do not 

provide for the protection and propagation of fish and shellfish, 

EPA will consult with the appropriate Service regarding the 

state's standards. EPA's request for formal or informal 

consultation (as appropriate) shall be made as early as possible 

in the standards development process (e.g., when standards 

regulation are under development by the state). The EPA region 

should not wait until standards are formally submitted by the 

state to request such consultation. 

If a state water quality standard under review by EPA 

relates to specie(s), pollutant(s) and geographic area(s) that 

were the subject of a jeopardy opinion issued by the Service 

under section 1I.A. of this Memorandum, EPA will 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. EPA will notify the 

Service that issued the biological opinion of its action, in 

accordance with 50 C.F.R. 402.15. 

Except in those cases where the Service's Director, at the 

Washington Office level, requests consultation, EPA may take 

8 

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

action pursuant to CWA section 303(c)(4) to promulgate federal 

standards applicable to a water of the state without requesting 

consultation where (1) the aquatic life criteria promulgated by 

EPA are no less stringent than EPA's section 304(a) criteria 

guidance and consultation between EPA and the Service on EPA's 

criteria has resulted in a Service concurrence with an EPA 

finding of "not likely to adversely affect," a "no jeopardy" 

biological opinion (or EPA's implementation of a reasonable 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 EPA promulgates water quality standards 

consistent with the provisions of the previous paragraph, but the 

Service believes that consultation may be necessary in either of 

the circumstances described below, only the Service's Director, 

at the Washington Office level, may request consultation with 

EPA. Such consultation may be necessary (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 may affect an endangered or 

threatened species, or (2) where new scientific 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 a manner or to an 

extent not considered in the earlier consultation. 

. Revisions to Aareement 

EPA and the Services may jointly 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 

The terms of this Memorandum are not intended to be 

enforceable by any party other than the signatories hereto. 

V. Reservation of Aaencv Positions 

No party to this Memorandum waives any administrative 

claims, positions or interpretations it may have 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. Any of the parties may withdraw from this 

Memorandum upon 60 days' written notice to the other parties; 

9 

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

this Yemorandun that LS pena1r.g at tne :13ne noclce sf :,<lthdrawal 

1s received by the parties, 3 na :pAose A<t;*,'lt;es covered by this 

Memorandum that beqrn the consultation process :,;lth the SO-day 

notice period, ,.~l?! Lontlnue :I ce governed b)' -ne Frocedures in 

Chis Yemorandu;. 

Ralph Morqenweck, Assistant 31rector 

Fish and Wildlife 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 how specific criteria derived 

- description of logic/thought processes supporting 

findings of effect on listed species 

II. Fact Sheets 

Pollutant-specific fact sheets will be compiled which 

evaluate the available data and reach conclusions regarding the 

findings of effect of the criteria on endangered and threatened 

species. The fact sheets will be presented 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 as environmental variability, ph, hardness, 

temperature, etc. 

11 

(9/14/93) F-11 
water Qrulity stnaduda Hu%ook - Second Edition 

D. Assessment of impact on listed species 

Findings to be made regarding whether each criteria (1) 

"may affect" and/or (2) is likely to adversely affect, listed 

species. 

12 

F-12 (9/14/93)