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s Proposed Withdrawal of Saltwater Aquatic Life Cyanide Critria from the NTR Applicable to San Francisco Bay, California

s_i. I / FROM: JanetY. Hashirnoto

Manager, Standards and TMDL Office

TO: The Record

DATE: April 17, 2012

I. Legal Background

The Endangered Species Act (ESA) Section 7(a)(2) requires EPA, in consultation with the U.S. Fish and

Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services),

ensure that actions authorized, funded, or carried out are not likely to jeopardize the continued existence of federally-listed threatened or endangered species, or result in the destruction or adverse modification

of designated critical habitat of such species (16 U.S.C. 1536(a)(2)). Under relevant ESA implementing regulations, consultation is required for actions that “may affect” listed species or designated critical habitat and is not required where the action has “no effect” on such species or critical habitat (50 CFR 402.14). Upon initiation of consultation, ESA Section 7(d) prohibits irreversible or irretrievable

commitments of resources that have the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would not violate Section 7(a)(2) of the ESA (16 U.S.C. 1536(d)).

II. EPA-Approved California Aquatic Life Objectives and ESA Consultation

In 1992, EPA promulgated federal regulations, through the National Toxics Rule (“NTR”), establishing water quality criteria in California for certain toxic pollutants and water bodies, including saltwater aquatic life criteria for cyanide in San Francisco Bay. In 2000, EPA promulgated federal regulations, through the California Toxics Rule (“CTR”), establishing Water quality criteria for other toxic pollutants for San Francisco Bay and throughout California. In order to provide readers a complete set of federally- promulgated criteria for California waters the CTR identified, through footnotes, the criteria that had been promulgated in 1992, in the NTR.

In May of 2008, California submitted for EPA approval site-specific marine (saltwater) aquatic life water quality objectives (criteria) for San Francisco Bay. In July of 2008, EPA Region 9 approved the objectives, subject to completion of consultation under the ESA with the Services concerning the objectives.

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EPA Region 9 initiated informal consultation with the Services under ESA Section 7(a)(2) in 2006, and continues to consult with the Services on the approval action. EPA Region 9 anticipates, based on the analysis to date, that a Not Likely to Adversely Affect (NLAA) federally listed species or critical habitat deterniination will he appropriate. Based on interactions with the Services, EPA Region 9 anticipates they will concur with the determination. EPA’s approval of California’s water quality objectives is made explicitly subject to the outcome of the Section 7(a)(2) consultation. EPA finds that approving California’s water quality objectives subject to the outcome of the consultation does not constitute an

irreversible or irretrievable commitment of resources within the meaning of ESA Section 7(d). EPA bases its determination on its retention of CWA authority to implement alternatives that comply with ESA Section 7(a)(2). In particular, EPA retains the full range of options available under CWA Section

303(c) for ensuring water quality standards meet the requirements of the CWA.

III. EPA is Withdrawing the Applicable Federal Aquatic life Criteria

California’s site-specific, EPA-approved marine aquatic life cyanide objectives for San Francisco Bay adequately protect waters of San Francisco Bay designated for aquatic life use at a level consistent with

EPA regulations and the CWA. Therefore, EPA’s federal saltwater aquatic life cyanide criteria for San Francisco Bay are no longer needed, and may he withdrawn. In this rule, EPA is withdrawing the federal saltwater aquatic life cyanide criteria for waters in San Francisco Bay, California, and is revising the footnote in the CTR to reflect the change in the NTR.

IV. ESA Considerations in Connection With EPA’s Proposed Rule Withdrawal

California’s marine aquatic life cyanide objectives for San Francisco Bay are slightly less stringent than the federal saltwater aquatic life cyanide criteria for San Francisco Bay in the NTR at 40 CFR 131.36, due to scientifically defensible, State-specific modification to the federal criteria. California’s sitespecific objectives are consistent with EPA procedures for adoption of site-specific water quality criteria. Site-specific water quality criteria account for potential over-protectiveness and under- protectiveness of national criteria by using EPA-approved and published procedures. California’s marine aquatic life cyanide objectives for San Francisco Bay were developed using an EPA-approved procedure, the Recalculation Procedure. The goal of the Recalculation Procedure is to recalculate water

quality criteria (objectives) using (lala that is representative of the sensitivities of the species that are found in the water body. Recalculation of the cyanide criteria, incorporating recent, peer reviewed toxicity data, indicates that the saltwater aquatic life cyanide criteria should he less stringent ftr San Francisco Bay.

California’s methods br deriving the site-specific cyanide objectives are acceptable State-specific modifications of the federal criteria. The equations used by the State to calculate the site—specific objectives result in criteria (objectives) that are protective of the use, and are consistent with CWA

Sections 101 (a)(2) and 303 (c)(2), and 40 CFR Parts 13 1. Therefore, EPA believes withdrawing the

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continue to consult on the approved State objectives, consistent with ESA Section 7(d). EPA’s belief is based on the following:

1. California’s EPA-approved marine aquatic life cyanide objectives for San Francisco Bay are protective of the designated uses in San Francisco Bay, and are consistent with the CWA and its

implementing regulations.

2. California used appropriate and scientifically defensible State-specific modifications of the

federal saltwater aquatic life cyanide criteria to derive its objectives.

3. EPA’s 2008 approval of California’s marine aquatic life cyanide objectives in San Francisco Bay is subject to the outcome of ongoing ESA consultation. While consultation is ongoing, EPA has already determined that. the approval will not cause any irreversible or irretrievable commitment

of resources within the meaning of ESA Section 7(d) and that EPA retains sufficient authority under the CWA to implement alternatives that might he determined in the consultation to be

needed to comply with ESA Section 7(a)(2). To date, no impacts of concern have been identified

for those species which either reside in or rely on the San Francisco Bay.

EPA believes that withdrawing the federal criteria, which would leave less stringent California objectives in place as governing CWA water quality standards, is consistent with ESA requirements.

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