2015 MSGP Biological Opinion C-1

Appendix C: Procedures Relating to Endangered Species 

Protection Guidance and Worksheet 

(Note that this is a REVISED 

VERSION of the guidance and 

worksheet originally submitted as 

Appendix E of the Multi-Sector 

General Permit attached to the 

Biological Evaluation). 

References within the Appendix 

relate directly to the permit.
2015 MSGP Biological Opinion C-2

Appendix E. Procedures Relating to Endangered Species Protection

E.1 Assessing the Effects of Your Discharges and Discharge-Related Activities

You must follow the procedures in this appendix to determine which of the eligibility 

criterion in Part 1.1.4.5 (i.e., criterion A - E), if any, you qualify under, by assessing the potential 

effects of applicable stormwater discharges, discharge-related activities, and allowable nonstormwater discharges on listed threatened and endangered species and their designated 

critical habitat. In accordance with Part 5.2.6.1 of this permit, you must keep any documentation 

that supports your eligibilty determination, including the completed Criterion Selection Worksheet in

Part E.4 of this appendix, with your Stormwater Pollution Prevention Plan (SWPPP). You must 

complete your eligibility determination prior to submitting your Notice of Intent (NOI) for 

coverage under the MSGP, and must provide all information as required on your NOI form that 

supports the ESA eligibility criterion you qualify under. (Note that if you have determined that you 

may be eligible under criterion C, you must submit a completed Criterion C Eligibility Form to EPA 

a minimum of 30 days prior to submitting your NOI for permit coverage). 

When evaluating the potential effects of your activities, you must consider effects to 

listed species or critical habitats within the “action area” of your industrial activity. Action area is 

defined in Appendix A of the MSGP as all areas to be affected directly or indirectly by the 

federal action and not merely the immediate area involved in the action. This includes areas 

beyond the footprint of the facility that are likely to be affected by stormwater discharges, 

discharge-related activities, and allowable non-stormwater discharges. For example, discharges 

of pollutants into downstream areas can increase the “action area” beyond the footprint of the 

facility. 

E.2 Eligibility Criterion

As required by Part 1.1.4.5, you must meet one or more of the following five criteria (A - E) 

to be eligible for coverage under the permit:

Criterion A. No federally-listed threatened or endangered species or their designated critical 

habitat(s) are likely to occur in the “action area” as defined in Appendix A. To 

certify your eligibility under this criterion, you must use the Criterion Selection 

Worksheet in Part E.4 of Appendix E. You must also provide a description of the 

basis for the criterion you selected on your NOI form and provide documentation 

supporting your eligibility determination in your SWPPP.

Criterion B. Your industrial activity’s discharges and discharge-related activities were already 

addressed in another operator’s valid certification of eligibility for your action 

area under this permit and there is no reason to believe that federally-listed 

species or federally-designated critical habitat not considered in the prior 

certification may be present or located in the “action area” (e.g., due to a new 

species listing or critical habitat designation). To certify your eligibility under this 

criterion, there must be no lapse of NPDES permit coverage in the other 

operator’s certification. You must also comply with any terms and conditions 

imposed under the other operator's valid certification of eligibility to ensure that 

your discharges and discharge-related activities are protective of listed species 

and/or critical habitat. To certify your eligibility under this criterion, you must use 

the Criterion Selection Worksheet in Part E.4 of Appendix E. You must include in 

your NOI the NPDES ID (i.e., permit tracking number) assigned to the other 

operator’s authorization under this permit, and a description of the basis for the 

criterion selected on your NOI form, including the eligibility criterion selected by 

the other operator’s certification. You must also provide any documentation in 

your SWPPP that supports the other operator’s eligibility determination, as well as 
2015 MSGP Biological Opinion C-3

any terms and conditions that applied to the other operator’s eligibility 

determination. 

Criterion C. Federally-listed threatened or endangered species or their designated critical 

habitat(s) are likely to occur in or near your facility’s “action area,” and your 

industrial activity’s discharges and discharge-related activities are not likely to 

adversely affect listed threatened or endangered species or critical habitat. To 

certify your eligibility under this criterion, you must use the Criterion Selection 

Worksheet in Part E.4 of Appendix E, including completion of the Criterion C 

Eligibility Form. At least 30 days prior to filing your NOI for permit coverage, you 

must submit to EPA a completed Criterion C Eligibility Form. After evaluation of 

your Criterion C Eligibility Form, EPA may require additional controls that you must 

implement to avoid or eliminate adverse effects on listed species and critical 

habitat from discharges and discharge-related activities. You may submit your 

NOI for permit coverage 30 days after submitting your completed Criterion C 

Eligibility Form. You must also provide a description of the basis for the criterion 

you selected on your NOI form and provide documentation supporting your 

eligibility determination in your SWPPP.

Criterion D. Consultation between a Federal Agency and the U.S. Fish and Wildlife Service 

and/or the National Marine Fisheries Service under section 7 of the Endangered 

Species Act (ESA) has been concluded. Consultations can be either formal or 

informal, and would have occurred only as a result of a separate federal action 

(e.g., during application for an individual wastewater discharge permit or the 

issuance of a wetlands dredge and fill permit), and consultation must have 

addressed the effects of the industrial activity’s discharges and discharge-related 

activities on all federally-listed threatened or endangered species and all 

federally-designated critical habitat. The result of this consultation must be either:

i. A biological opinion that concludes that the action in question (taking into 

account the effects of your facility’s discharges and discharge-related 

activities) is not likely to jeopardize the continued existence of listed species, 

nor the destruction or adverse modification of critical habitat; or

ii. Written concurrence from the applicable Service(s) with a finding that your

facility’s discharges and discharge-related activities are not likely to adversely 

affect federally-listed species or federally-designated critical habitat. 

To certify your eligibility under this criterion, you must use the Criterion Selection 

Worksheet in Part E.4 of Appendix E. You must verify that the consultation remains 

valid, in accordance with 50 CFR §402.16. If reinitiation of consultation is required, 

in order to be eligible under this criterion you must conclude the reinitiated

consultation and the result of the consultation must be consistent with (i) or (ii) 

above. 

If eligible, you must also provide supporting documentation for your 

determination in your NOI and SWPPP, including the Biological Opinion (or PCTS 

tracking number) or concurrence letter. 

Criterion E. Your industrial activities are authorized through the issuance of a permit under 

section 10 of the Endangered Species Act (ESA), and this authorization addresses 

the effects of your facility’s discharges and discharge-related activities on 

federally-listed species and federally-designated critical habitat. To certify your 

eligibility under this criterion, you must use the Criterion Selection Worksheet in Part 

E.4 of Appendix E. You must also provide supporting documentation for your 
2015 MSGP Biological Opinion C-4

determination in your NOI and SWPPP, including a copy of the permit from the 

Services.

E.3 Eligibility Compliance

You must comply with any applicable terms, conditions, or other requirements developed in the 

process of meeting the eligibility criteria in this section for the duration of your coverage under 

the MSGP in order to maintain your eligibility for coverage under the permit. Documentation of 

these requirements must be kept as part of your SWPPP (see Part 5.2.6.1). 

E.4 Criterion Selection Worksheet

Instructions:

You must follow the step-by-step instructions in this worksheet in order to determine your eligibility 

under the Part 1.1.4.5 criteria. Alternatively, if you prefer to use a Biological Evaluation (or its 

equivalent) in making a determination of your eligibility, you should ensure all of the information 

requested below for the criterion you are selecting is fully addressed in such a document. You must 

attach this completed document or Biological Evaluation (or equivalent) to your SWPPP to support 

your Part 1.1.4.5 eligibility determination. 

You may need the following information in order to determine your eligibility: 

1) Your facility’s draft Stormwater Pollution Prevention Plan (SWPPP), including information on 

receiving waters.

2) Any additional site-specific information related to your facility’s discharges and dischargerelated activities. 

3) The list(s) of endangered and threatened species and any designated critical habitat in 

your action area, as acquired from the Fish and Wildlife Service and/or the National Marine 

Fisheries Services. Directions on how to acquire species lists is described in a subsequent 

section below.

Note that much of the information needed to complete this worksheet you will also need in order 

to prepare your NOI for permit coverage, and is also information that you must develop as part of 

your SWPPP. Any information that is already required and completed in your SWPPP you may copy 

and paste into this worksheet. (You may also decide to make minor changes or additions to your 

SWPPP while filling out the worksheet for clarification purposes or to address any concerns that are 

identified below.)

STEP 1: DETERMINE IF THE ELIGIBILITY REQUIREMENTS OF CRITERION B, D, OR E CAN BE MET.

You should first determine whether you are eligible under criterion B (because another operator has 

accounted for your action area in their valid certification of eligibility), criterion D (because of a 

previously completed ESA section 7 consultation), or criterion E (because of a previously issued ESA 

section 10 permit). 

If your facility is likely to be eligible under criterion B, D or E, you may skip ahead to the applicable 

criterion’s requirements to determine if you are eligible. If after completing the relevant section you 

find that your facility does not in fact meet criteria B, D, or E (e.g., due to difference in action area 

described, lack of analysis of appropriate effects, new listings or designation of critical habitat), 

proceed to Step 2 below.

If your facility is not likely to be eligible under criterion B, D or E, you may proceed directly to Step 2.
2015 MSGP Biological Opinion C-5

Criterion B Eligibility Requirements

If your industrial activities were already addressed in another operator’s valid certification of 

eligibility under the current 2014 MSGP, you may be eligible for coverage under criterion B. In order 

to be eligible for coverage under criterion B, you must confirm that all the following are true: 

You have confirmed that the other operator’s certification of eligibility accounted for your action 

area and that the eligibility determination was valid.

There has been no lapse of NPDES permit coverage in the other operator’s certification.

You will comply with all terms and conditions imposed under the other operator’s valid 

certification of eligibility. List any terms and conditions here (or enter “N/A” if none exist):

- If all of the above are true, you may select criterion B on your NOI. You must include in your NOI 

the NPDES ID from the other operator’s notification of authorization under this permit, and a 

description of the basis for the criterion selected on your NOI form, including the eligibility 

criterion selected by the other operator’s certification. You must include this completed 

worksheet in your SWPPP.

- If any of the above are not true, you may not select criterion B and must proceed to Step 2. For 

example, if there are any listed species in your action area that were not addressed in the other 

operator’s certification, you are not eligible under criterion B. 

Criterion D Eligibility Requirements

If consultation under section 7 of the ESA has been concluded, you may be eligible for coverage 

under criterion D. In order to be eligible or coverage under criterion D, you must confirm that all the 

following are true:

 A consultation between a federal agency and the U.S. Fish and Wildlife Service and/or the 

National Marine Fisheries Service under section 7 of the ESA has been concluded. Consultations can 

be either formal or informal, and would have occurred only as a result of a separate federal action 

(e.g., during application for an individual wastewater discharge permit or the issuance of a 

wetlands dredge and fill permit), and the consultation must have addressed the effects of your

industrial activity’s discharges and discharge-related activities on all federally-listed threatened or 

endangered species and all federally-designated critical habitat in your action area. The result of 

this consultation must be either:

i. A biological opinion that concludes that the action in question (taking into account the 

effects of your facility’s discharges and discharge-related activities) is not likely to jeopardize 

the continued existence of listed species, nor the destruction or adverse modification of 

critical habitat. The biological opinion must have included the effects of your facility’s 

discharges1 and discharge-related activities on all the listed species and designated critical 

habitat in your action area; or

 1 Effects of discharge includes, but is not limited to, the analysis of the hydrological, chemical, and biological effects of 

the discharge on listed species, their prey, and their habitat, as well as critical habitat, where designated. For example, 

the effects analysis would have evaluated whether the various pollutants in the discharge (e.g., TSS, metals) would 

adversely affect listed species through exposure to the pollutants, or to their prey or habitat. Effects that look only at 

short-term effects unrelated to the stormwater discharge effects to listed species are not sufficient for these purposes.
2015 MSGP Biological Opinion C-6

ii. Written concurrence (e.g., letter of concurrence) from the applicable Service(s) with a 

finding that concludes that your facility’s discharges and discharge-related activities are not 

likely to adversely affect listed species or designated critical habitat. The concurrence 

letter must have included the effects of your facility’s discharges and discharge-related 

activities on all the listed species and designated critical habitat on your species list(s) 

acquired from the Service(s) as part of this worksheet. 

 The consultation remains valid, in accordance with 50 CFR §402.16; or, if reinitiation of 

consultation is required (e.g., due to a new species listing or critical habitat designation; new 

information), you have concluded the reinitiated consultation and the result of the consultation is 

consistent with the statements above. Attach a copy of any reinitiation documentation from the 

Services or other consulting federal agency. 

- If all of the above are true, you may select criterion D on your NOI. You must also provide a 

description of the basis for the criterion selected on your NOI form and you must include this 

completed worksheet in your SWPPP. In both your SWPPP and NOI you must also provide the 

Biological Opinion (or PCTS tracking number) or concurrence letter and any other 

documentation supporting your eligibility determination.

- If any of the above are not true, you may not select criterion D and must proceed to Step 2. For 

example, if the biological opinion or written concurrence did not include the effects of the 

discharge or discharge-related activities as described above (e.g., the previous consultation 

covered some but not all of the species or critical habitat in your action area as shown on your 

species list), or if the consultation is no longer valid (e.g., due to new species listings), you are not 

eligible under criterion D. 

Criterion E Eligibility Requirements

If your industrial activities are authorized through the issuance of a permit under section 10 of the 

ESA, and this authorization addresses the effects of your facility’s discharges and discharge-related 

activities on federally-listed species and federally-designated critical habitat in your action area, 

you may be eligible for coverage under criterion E. In order to be eligible or coverage under 

criterion E, you must confirm that the following is true:

 A permit has been issued under section 10 of the ESA. The permit authorization specifically 

addresses the effects of your facility’s discharges and discharge-related activities (if applicable) on 

all federally-listed species and designated critical habitat in your action area. 

- If the above is true, you may select criterion E on your NOI. You must also provide a description 

of the basis for the criterion selected on your NOI form and must include this completed 

worksheet in your SWPPP. In both your SWPPP and your NOI you must provide a copy of the 

section 10 permit issued by the Services.

- If the above is not true, you may not select criterion E and must proceed to Step 2. For example, 

if a permit has been issued under section 10 of the ESA, but the permit authorization did not 

address the effects of your facility’s discharges and/or discharge-related activities on all 

federally-listed species and designated critical habitat in your action area, you are not eligible 

under criterion E, but you should attach a copy of the permit to the SWPPP for reference.

STEP 2: DETERMINE THE EXTENT OF YOUR ACTION AREA

You must determine whether species listed as either threatened or endangered, or their critical 

habitat(s) (see definitions of these terms in Appendix A), are located in your facility’s action area 

(i.e., all areas to be affected directly or indirectly by the federal action and not merely the 

immediate area involved in the action, including areas beyond the footprint of the facility that are 

likely to be affected by stormwater discharges, discharge-related activities, and allowable nonstormwater discharges). Consider the following in determining the action area for your facility:
2015 MSGP Biological Opinion C-7

• Discharges of pollutants into downstream areas can expand the action area well beyond 

the footprint of your facility and the discharge point(s). Take into account the controls you 

will be implementing to minimize pollutants and the receiving waterbody characteristics 

(e.g., perennial, intermittent, ephemeral) in determining the extent of physical, chemical, 

and/or biotic effects of the discharges. All receiving waterbodies that could receive 

pollutants from your facility must be included in your action area. 

• Discharge-related activities must also be accounted for in determining your action area. 

Discharge-related activities are any activities that cause, contribute to, or result in 

stormwater and allowable non-stormwater point source discharges, and measures such as 

the siting, construction, and operation of stormwater controls to control, reduce, or prevent 

pollutants from being discharged. For example, any new or modified stormwater controls 

that will have noise or other similar effects, and any disturbances associated with 

construction of controls, are part of your action area.

If you have any questions about determining the extent of your action area, you may choose to 

contact EPA or the Services for assistance. 

You must describe the action area of your facility in Attachment 1 of this appendix. 

You must proceed to Step 3 below.

STEP 3: DETERMINE IF LISTED THREATENED OR ENDANGERED SPECIES AND/OR CRITICAL 

HABITAT ARE PRESENT IN YOUR ACTION AREA.

You must determine whether species listed as either threatened or endangered under the 

Endangered Species Act (ESA), and/or their designated critical habitat(s)2, are located in your 

facility’s action area. Federally-listed species and designated critical habitat are under the purview 

of the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) (together, 

“Services”), and in many cases, species and critical habitat lists will need to be acquired from both 

Services.

• For NMFS species and critical habitat information, use the following webpages, which provide 

up-to-date information on listed species (http://www.nmfs.noaa.gov/pr/species/esa/) and 

critical habitat (http://www.nmfs.noaa.gov/pr/species/criticalhabitat.htm). To determine the 

field office that corresponds to your facility, go to http://www.nmfs.noaa.gov/ (under the left 

tab for “Regions”). For NMFS species in the Greater Atlantic Region, go 

to http://www.nero.noaa.gov/protected/section7/guidence/maps/index.html.

• For FWS species information, use the on-line mapping tool IPAC (the Information, Planning, 

and Consultation System) located at http://ecos.fws.gov/ipac/, and follow these steps:

o Select Initial Project Scoping.

o Use the Map feature to define your project location. (Using the state/county list may 

result in more species being listed than you need to consider for your project.)

o Zoom into your location or choose the “Find a Place” search to locate your site. 

o Use the zoom feature to see the entire extent of your action area on the screen.

o Use the draw feature (represented by the pencil icon) to draw your action area as a 

polygon. 

 For the aquatic portion of your action area, trace the waterbody(ies) with the tool 

to characterize your action area. (A large/broad circle may include more species 

than would be present with better definition of your action area.)

 2 See definitions of these terms in Appendix A of the MSGP.
2015 MSGP Biological Opinion C-8

Note: For existing 

dischargers that have 

previously obtained

coverage under criterion 

A, you must verify whether 

listed species and/or 

critical habitat are 

expected to exist in your 

action area, as described 

above. Please note that if 

you now find that your 

action area overlaps with 

listed species or critical 

habitat, you must proceed 

to Step 4.

 If your proposal wil include any upland activities (i.e., discharge-related activities), 

or if there is some aspect of your discharge that would potentially result in effects 

to terrestrial species, include the corresponding upland areas within your action 

area.

 When you are done, press Continue.

o Select “Water Quality Modification” under the project type and continue.

o Follow the link to acquire an Official Species List, which should show both listed species as 

well as any designated critical habitat that are present in the action area polygon in the 

previous step. Note: If a link to an Official Species List is not available on the page, follow 

the web link of the office(s) indicated, or contact the office directly by mail or phone if a 

web link is not shown.

The principle authority for critical habitat designations and associated requirementsis found at 50 

CFR Parts 17 and 226. http://www.access.gpo.gov. 

Attach a copy of the species and critical habitat list(s) from the Service(s) to Attachment 2 of this 

appendix and use the list(s) to complete the rest of this worksheet. For FWS species, include the full 

printout from your IPAC query, including the map, in Attachment 2. 

If after following the steps you have determined that there are no listed species and/or designated 

critical habitat in your action area, you may be eligible for coverage under criterion A. 

If you have determined that there are or may be listed species 

and/or designated critical habitat in your action area, you are not 

eligible under criterion A and must proceed to Step 4 below.

Criterion A Eligibility Requirements

In order to be eligible for coverage under criterion A, you must 

confirm that the following is true:

 I have confirmed there to be no listed species and no critical 

habitat in my action area. 

- If the above is true, you may select criterion A on your NOI form. 

You must also provide a description of the basis for the criterion 

selected on your NOI form. You must include this completed 

worksheet in your SWPPP.

- If the above is not true, you may not select criterion A and must 

proceed to Step 4 to determine if you can become eligible 

under criterion C. 

STEP 4: DETERMINE IF YOUR INDUSTRIAL FACILITY’S DISCHARGES OR DISCHARGE-RELATED 

ACTIVITIES ARE LIKELY TO ADVERSELY AFFECT LISTED THREATENED OR 

ENDANGERED SPECIES OR DESIGNATED CRITICAL HABITAT AND ANY MEASURES 

THAT MUST BE IMPLEMENTED TO AVOID ADVERSE EFFECTS

If in Step 3 you determined that listed species and/or designated critical habitat could exist in your 

action area, you must next assess whether your discharges and discharge-related activities are likely 

to adversely affect listed threatened or endangered species or designated critical habitat, and 

whether any additional controls are necessary to ensure no likely adverse affects. In order to make 

a determination of your facility’s likelihood of adverse affects, you must complete the 

attached Criterion C Eligibility Form and must submit this form to EPA a minimum of 30 days prior to 

filing your NOI for permit coverage. After you submit your Criterion C Eligibility Form, you may be 
2015 MSGP Biological Opinion C-9

contacted by EPA with additional measures or controls that you must implement in order to ensure 

your eligibililty under criterion C. 
2015 MSGP Biological Opinion C-1

2014 MSGP Criterion C Eligibility Form Page 1

Criterion C Eligibility Form

Instructions:

In order to be eligible for coverage under criterion C, you must complete the following form

and you must it to EPA following the instructions in Section IV a minimum of 30 days prior to 

filing your NOI for permit coverage. This determination may require the implementation of 

additional controls or modifications to your discharge-related activities. After you submit your 

form, you may be contacted by EPA with additional requirements that you must implement in 

order to ensure your eligibility under criterion C. If after completing this worksheet you cannot 

make a determination that your discharges and discharge-related activities are not likely to 

adversely affect listed threatened or endangered species or designated critical habitat, you 

must submit this completed worksheet to EPA , but you may not file your NOI for permit 

coverage until you receive a determination from EPA that your discharges and/or dischargerelated activities are not likely to adversely affect affect listed species and critical habitat. 

Note: Much of the information needed for this from you can gather from your draft SWPPP 

and will be needed when you file your NOI.

SECTION I. FACILITY AND SITE LOCATION INFORMATION. 

1) Facility Information

a) Facility Name: _____________________________________________

b) Check which of the following applies:

 I am seeking coverage under the MSGP as a new discharger 

 I am seeking coverage under the MSGP as an existing discharger and my facility has 

modifications to its discharge characteristics (e.g., changes in discharge flow or area 

drained, different pollutants) and/or discharge-related activities (e.g., stormwater 

controls)

Indicate the number of years the facility has been in operation:

_________ years

Provide your NPDES ID (i.e., permit tracking number) from your previous MSGP 

coverage: ________________

I am seeking coverage under the MSGP as an existing discharger and there are no

modifications to my facility.

Indicate the number of year the facility has been in operation: _________ years

Provide your NPDES ID (i.e., permit tracking number) from your previous MSGP 

coverage: ________________

c) Facility Address:

Address 1: ___________________________________________________________

Address 2: ___________________________________________________________

City: _________________________ State: ________ Zip Code: ______________________
2015 MSGP Biological Opinion C-2

2014 MSGP Criterion C Eligibility Form Page 2

Note: For the purposes of this permit, 

“terrestrial species” would not include animal 

or plant species that 1) spends any portion of 

its life cycle in a waterbody or wetland, or 2) if 

an animal, depends on prey or habitat that 

occurs in a waterbody or wetland. For 

example, shorebirds, wading birds, 

amphibians, and certain reptiles would not be 

considered terrestrial species under this 

definition. Please also be aware that some 

terrestrial animals (e.g., certain insects, 

amphibians) may have an aquatic egg or 

larval/juvenile phase. 

d) Identify the primary industrial sector to be covered under the 2014 MSGP:

SIC Code ______ or Primary Activity Code _____

Sector _______ and Subsector ________

e) Identify the sectors of any co-located activities to be covered under the 2014 MSGP:

Sector _______ Subsector _______

Sector _______ Subsector _______

Sector _______ Subsector _______

Sector _______ Subsector _______

Sector _______ Subsector _______

Sector _______ Subsector _______

f) Estimated area of industrial activity exposed to stormwater: __________________ acres

g) Provide a general description of the industrial activities that are taking place at this 

facility:

2) Receiving Waters Information

SECTION II. ACTION AREA

Ensure that your action area is described in Attachment 1, as required in Step 2. 

SECTION III. LISTED SPECIES AND CRITICAL HABITAT LIST

Ensure that the listed species and critical habitat list is 

included in Attachment 2, as required in Step 3. 

List all the stormwater outfalls from your facility. For each outfall, provide the following receiving water 

information:

Outfall ID Design 

Capacity 

(if known)

Latitude

(decimal

degrees)

Longitude

(decimal 

degrees)

Name of the receiving water that 

receives stormwater from the 

outfall and/or from the MS4 that 

the outfall discharges to

Type of Waterbody 

(e.g., lake, pond, 

river/stream/creek, 

estuarine/marine 

water)

_ _ _ . _ _ _ _ _ _ _ . _ _ _ _

_ _ _ . _ _ _ _ _ _ _ . _ _ _ _

_ _ _ . _ _ _ _ _ _ _ . _ _ _ _

_ _ _ . _ _ _ _ _ _ _ . _ _ _ _

_ _ _ . _ _ _ _ _ _ _ . _ _ _ _
2015 MSGP Biological Opinion C-3

2014 MSGP Criterion C Eligibility Form Page 3

Review your species list in Attachment 2, choose one of the following three statements, and follow 

the corresponding instructions: 

 The species list includes only terrestrial species and/or their designated critical habitat. No 

aquatic or aquatic-dependent species or their critical habitat are present in the action area. You 

may skip to Section IV of this form. You are not required to fill out Section V. 

 The species list includes only aquatic and/or aquatic-dependent species and/or their 

designated critical habitat. No terrestrial species or their critical habitat are present in the action 

area. You may skip to Section V of this form and are not required to fill out Section IV. 

The species list includes both terrestrial and aquatic or aquatic-dependent species and/or their 

designated critical habitat. You must fill out both Sections IV and V of this form. 

SECTION IV. EVALUATION OF DISCHARGE-RELATED ACTIVITIES EFFECTS

Note: You are only required to fill out this section if your facility’s action area contains terrestrial species 

and/or their designated critical habitat. If your action area only contains aquatic and/or aquaticdependent species and/or their designated critical habitat, you can skip directly to Section V.

Most of the potential effects related to coverage under the MSGP are assumed to occur to aquatic 

and/or aquatic-dependent species. However, in some cases, potential effects to terrestrial species 

and/or their critical habitat should be considered as well from any discharge-related activities that 

occur during coverage under the MSGP. Examples of discharge-related activities that could have 

potential effects on listed terrestrial species or their critical habitat include the storage of materials 

and land disturbances associated with stormwater management-related activities (e.g., the 

installation or placement of stormwater control measures).

a. Select the applicable statement(s) below and follow the corresponding instructions:

There are no discharge-related activities that are planned to occur during my coverage under 

the MSGP. You can conclude that your discharge-related activities will have no likely adverse 

effects, and:

- If there are any aquatic or aquatic-dependent species and/or their critical habitat in your 

action area, you must skip to Section V, Evaluation of Discharge Effects, below. 

- If there are no aquatic or aquatic-dependent species you may skip to Section VI and verify that 

your activities will have no likely adverse affects. You must submit this form to EPA as specified 

in Section VII of this form. You may select criterion C on your NOI form and may submit your NOI 

for permit coverage 30 days after you have submitted this Criterion C Eligibility Form. You must 

also provide a description of the basis for the criterion you selected on your NOI form, including 

the species and critical habitat list(s) in your action area, as well as any other documentation 

supporting your eligibility. You must also include this completed Criterion C Eligiblity Form in your 

SWPPP.

There are discharge-related activities planned as part of the proposal. Describe your dischargerelated activities in the following box and continue to (b) below. 

Describe discharge-related activities:
2015 MSGP Biological Opinion C-4

2014 MSGP Criterion C Eligibility Form Page 4

b. In order to ensure any discharge-related activities will have no likely adverse affects on listed 

species and/or their designated critical habitat, you must certify that all the following are true: 

Discharge-related activities will occur:

• on previously cleared/developed areas of the site where maintenance and operation of the 

facility are currently occurring or where existing conditions of the area(s) in which the 

discharge-related activities will occur precludes its use by listed species (e.g., work on 

existing impervious surfaces, work occurring inside buildings, area is not used by species), 

and

• if discharge-related activities will include the establishment of structures (including, but not 

limited, to infiltration ponds and other controls) or any related disturbances, these structures 

and/or disturbances will be sited in areas that will not result in isolation or degradation of 

nesting, breeding, or foraging habitat or other habitat functions for listed animal species (or 

their designated critical habitat), and will avoid the destruction of native vegetation 

(including listed plant species).

If vegetation removal (e.g., brush clearing) or other similar activities will occur, no terrestrial listed 

species that use these areas for habitat would be expected to be present during vegetation 

removal.

- If all the above are true, you can conclude that your discharge-related activities will have no 

likely adverse affects, and:

- If there are any aquatic or aquatic-dependent species and/or critical habitat in your action 

area, you must skip to Section V, Evaluation of Discharge Effects, below.

- If there are no aquatic or aquatic-dependent species you may skip to Section VI and verify 

that your activities will have no likely adverse affects. You must submit this form to EPA as 

specified in Section VII of this form. You may select criterion C on your NOI and may submit 

your NOI for permit coverage 30 days after you have submitted this completed form. You 

must also provide a description of the basis for the criterion you selected on your NOI 

form, including the species and critical habitat list(s), and any other documentation 

supporting your eligibility. You must also include this completed Criterion C Eligibility Form in 

your SWPPP.

- If any of the above are not true, you cannot conclude that your discharge-related activities will 

have no likely adverse affects. You must complete the rest of this form (if applicable), and must 

submit the form to EPA for assistance in determining your eligibility for coverage. 

SECTION V. EVALUATION OF DISCHARGE EFFECTS

Note: You are only required to fill out this section if your facility’s action area includes aquatic and/or 

aquatic-dependent species and/or their critical habitat.

In this section, you will evaluate the likelihood of adverse effects from your facility’s discharges. The 

scope of effects to consider will vary with each facility and species/critical habitat characteristics. 

The following are examples of discharge effects you should consider:
2015 MSGP Biological Opinion C-5

2014 MSGP Criterion C Eligibility Form Page 5

• Hydrological Effects. Stormwater discharges may adversely affect receiving waters from 

pollutant parameters such as turbidity, temperature, salinity, or pH. These effects will vary with 

the amount of stormwater discharged and the volume and condition of the receiving water. 

Where a stormwater discharge constitutes a minute portion of the total volume of the 

receiving water, adverse hydrological effects are less likely. 

• Toxicity of Pollutants. Pollutants in stormwater may have toxic effects on listed species and 

may adversely affect critical habitat. Exceedances of benchmarks, effluent limitation 

guidelines, or state or tribal water quality requirements may be indicative of potential 

adverse affects on listed species or critical habitat. However, some listed species may be 

adversely affected at pollutant concentrations below benchmarks, effluent limitation 

guidelines, and state or tribal water quality standards. In addition, stormwater pollutants 

identified in Part 5.2.3.2 of your SWPPP, but not monitored as benchmarks or effluent 

limitation guidelines, may also adversely affect listed species and critical habitat.

As these effects are difficult to analyze for listed species, their prey, habitat, and designated critical 

habitat, this form helps you to analyze your discharges and make a determination of whether your 

discharges will have likely adverse affects and whether there are any additional controls you can 

implement to ensure no likely adverse affects. 

A. Evaluation of Pollutants and Controls to Avoid Adverse Affects. In this section, you must document all of your 

pollutant sources and pollutants expected to be discharged in stormwater. You must also document the controls you will 

implement to avoid adverse affects on listed aquatic and aquatic-dependent species. You must include specific details 

about the expected effectiveness of the controls and your determination of whether the pollutants will be controlled to 

avoid adverse affects to the listed aquatic-and aquatic-dependent species identified in Step 2. 

Potential Pollutant Source Potential Pollutants

Controls to Avoid Adverse Affects on Listed Aquatic 

and Aquatic-Dependent Species. Include a detailed 

analysis of why the control(s) will ensure no adverse affects, 

including any data you have about the effectiveness of the 

control in reducing pollutant concentrations. You may also 

attach photos of your controls to this form.

e.g., vehicle and equipment 

fueling

e.g.,

• Oil & grease

• Diesel

• Gasoline

• TSS

• Antifreeze

e.g., 

• Fueling operators (including the transfer of fuel 

from tank trucks) will be conducted on an 

impervious or contained pad or under cover

• Drip pans will be used where leaks or spills of fuel 

can occur and where making and breaking hose 

connections

• Spill kit will be kept on-site in close proximity to 

potential spill areas

• Any spills will be cleaned-up immediately using 

dry clean up methods

• Stormwater runoff will be diverted around fueling 

areas using diversion dikes and curbing
2015 MSGP Biological Opinion C-6

2014 MSGP Criterion C Eligibility Form Page 6

 Check if you are not able to make a preliminary determination that any of your pollutants will be 

controlled to a level necessary to avoid adverse affects on aquatic and/or aquatic-dependent listed species 

and their designated critical habitat. You must check in Section VI that you are unable to make a 

determination of no likely adverse affects, and must complete the rest of the form. You must submit your 

completed form to EPA for assistance in determining your eligibility for coverage. 
2015 MSGP Biological Opinion C-7

2014 MSGP Criterion C Eligibility Form Page 7

B. Analysis of Effects Based on Past Monitoring Data. Select which of the following applies to your facility:

I have no previous monitoring data for my facility because there are no applicable monitoring 

requirements for my facility’s sector(s). 

 I have no previous monitoring data for my facility because I am a new discharger, but I am subject to 

monitoring under the 2014 MSGP. You must provide information to support a conclusion that your facility’s 

discharges are not expected to result in benchmark or numeric effluent limit exceedances that will adversely 

affect listed species or their critical habitat:

My facility has not had any exceedances under the 2008 MSGP of any required benchmark(s) or numeric 

effluent limits. 

My facility has had exceedances of one or more benchmark(s) or numeric effluent limits under the 2008 

MSGP, but I have addressed them during my coverage under the 2008 MSGP, or in my evaluation of controls 

to avoid adverse affects in (A) above. Describe all actions (including specific controls) that you will 

implement to ensure that the pollutants in your discharge(s) will not result in adverse affects from future 

exceedances.

Check if your facility has had exceedances of one or more benchmarks or numeric effluent limits under 

the 2008 MSGP and you have not been able to address them to avoid adverse affects from future 

exceedances, or if you are a new discharger but you are not sure if you can avoid adverse affects from 

possible exceedances. You must check in Section VI that you are unable to make a determination of no 

likely adverse affects. You must submit your completed form to EPA for assistance in determining your 

eligibility for coverage. You may not file your NOI for permit coverage until you are able to make a 

determination that your discharges will avoid adverse affects on listed species and designated critical 

habitat.

SECTION VI VERIFICATION OF PRELIMINARY EFFECTS DETERMINATION

Based on Steps I – V of this form, you must verify your preliminary determination of effects on listed 

species and designated critical habitat from your discharges and/or discharge-related activities :

Following the applicable Steps in I – V above, I have made a preliminary determination that my discharges 

and/or discharge-related activities are not likely to adversely affect listed species and designated critical 

habitats.

Following the applicable Steps in I – V above, I am not able to make a preliminary determination that my 

discharges and/or discharge-related activities are not likely to adversely affect listed species and designated 

critical habitats.

SECTION VII CRITERION C ELIGIBILITY FORM SUBMISSION INSTRUCTIONS

You must submit this completed form to EPA, including any attachments and any additional 

information that demonstrates how you will avoid or eliminate adverse effects to listed species 

or critical habitat (e.g., specific controls you will implement to avoid or eliminate adverse 

effects). Any missing or incomplete information may result in a delay of your coverage under 

the permit. 

If you have made a preliminary determination that your discharges and/or discharge-related 

activities are not likely to adversely affect listed species and critical habitat, this form must be 

submitted a minimum of 30 days prior to submitting your NOI for permit coverage under criterion 
2015 MSGP Biological Opinion C-8

2014 MSGP Criterion C Eligibility Form Page 8

C. Please note that during either the 30-day Criterion C Eligibility Form review period prior to your 

NOI submission, or within 30 days after your NOI submission and before you have been 

authorized for permit coverage, EPA may advise you that additional information is needed, or 

that there are additional controls you must implement to avoid likely adverse effects.

If you are unable to make a preliminary determination that your discharges and/or dischargerelated activities will not likely affect listed species and critical habitat, this worksheet must be 

submitted to EPA, but you may not file your NOI for permit coverage until you have received a 

determination from EPA that your discharges and/or discharge-related activities will not likely 

affect listed species and critical habitat. 
2015 MSGP Biological Opinion C-1

MSGP Appendix E Attachment 1

Attachment 1

Describe your facility’s action area, as required in Step 2:
2015 MSGP Biological Opinion C-1

MSGP Appendix E Attachment 2

Attachment 2

List or attach the listed species and critical habitat in your action area on this sheet, as required 

in Step 3. For FWS species, include the full printout from your IPAC query, including the map, in 

Attachment 2.