UNITEDSTATES ENVIRONMENTAL PROTECTION AGENCY REGION
IX 75Hawthorne Street San Francisco, CA94105-3901 MEMORANDUM SUBJECT: Endangered Species Act Considerations Regarding EPA’s Proposed Withdrawal

of Saltwater Aquatic Life Cyanide Critria from the NTR Applicable

toSan 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), ensurethat actions authorized, funded, orcarried outarenot likely to jeopardize the continued existence of federally-listed threatened

or endangered species,
orresult in the destruction

oradverse modification of designated critical habitat ofsuch 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” onsuch species orcritical habitat (50CFR 402.14). Upon initiation of consultation, ESA Section 7(d) prohibits irreversible

orirretrievable commitments

of resourcesthat have the effect of foreclosing the formulation

or implementation

of reasonable and prudent alternatives which would notviolate 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.

Inorder to provide readers

a complete setof federally- promulgated criteria for California watersthe 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.

PrintedonRerveledPaperCalifornia’s marine aquatic life cyanide objectives forSan Francisco Bayare appropriately less stringent than the federal saltwater aquatic life cyanide criteria for San Francisco Bay. California’s objectives werederived using scientifically defensible, site-specific modifications

of the federal criteria,
as described

in detail in the State’s Staff Report, which
is contained

in the State’s Administrative Record for adoption and in EPA Region 9’s Administrative Record for approval. EPA determined that California’s marine aqLLatic life cyanide objectives for San Francisco Bayare protective
of the State’s designated usesfor San Francisco Bayand areconsistent with Clean WaterAct (CWA) Sections l0l(a)(2) and 303(c)(2), and 40 CFR Part 131. EPA Region

9initiated informal consultation with the Services under ESA Section 7(a)(2) in 2006, and continues

toconsult with the Services onthe approval action. EPA Region

9 anticipates, based onthe analysis
to date, that
aNot Likely to Adversely Affect (NLAA) federally listed species orcritical habitat deterniination will he appropriate. Based oninteractions with the Services,EPA Region

9 anticipates they will concurwith the determination. EPA’s approval of California’s water quality objectives

ismade explicitly subject
totheoutcomeofthe Section 7(a)(2) consultation. EPAfinds that approving California’s water quality objectives subject
tothe outcomeofthe consultation does notconstitute
an irreversible

orirretrievable commitment

of resourceswithin the meaning of ESA Section 7(d).EPA bases its determination

onits retention ofCWA authority
to implement alternatives that comply with ESA Section 7(a)(2).In particular, EPA retains thefull rangeof options available under CWA Section 303(c) for ensuring water quality standards meetthe 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 protectwatersof San Francisco Bay designated for aquatic life useatalevel consistent with EPA regulations and the CWA. Therefore, EPA’s federal saltwater aquatic life cyanide criteria for San Francisco Bayarenolonger needed, and mayhe withdrawn.

Inthis rule, EPA is withdrawing
the federal saltwater aquatic life cyanide criteria for watersin San Francisco Bay, California, and is revising the footnote
in the CTR toreflect the change in the NTR. IV.ESA Considerations

in Connection With EPA’s Proposed Rule Withdrawal California’s marine aquatic life cyanide objectives forSan Francisco Bay are slightly less stringent than the federal saltwater aquatic life cyanide criteria for San Francisco Bay in the NTRat40 CFR 131.36, due to scientifically defensible, State-specific modification

tothe federal criteria. California’s sitespecific objectives areconsistent withEPA procedures for adoption of site-specific water quality criteria. Site-specific water quality criteria accountfor 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 Baywere developed using an EPA-approved procedure, the Recalculation Procedure. The goal of the Recalculation Procedure

is torecalculate water quality criteria (objectives) using (lala that is representative

of the sensitivities

of the species that are found in the water body. Recalculation

ofthe cyanide criteria, incorporating recent, peerreviewed 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

ofthe federal criteria. The equations used by the State tocalculate the site—specific objectives result in criteria (objectives) that are protective
ofthe use,andareconsistent with CWA Sections 101 (a)(2) and 303 (c)(2), and 40 CFR Parts13 1. Therefore, EPA believes withdrawing
the

2federal saltwater aquatic life cyanide criteria for San Francisco Bay will notresult in anyimpacts of concern prior toconclusion
of the ESA consultation concerning the objectives. V. Summary EPA’s proposed withdrawal
of the applicable federal saltwater aquatic life cyanide criteria for San Francisco Bay will allow the State of California

to implement

its site-specific, EPA-approved marine cyanide objectives forSan Francisco Bay under the approved State program.EPA believes that withdrawing
the federal criteria will have no impact of concernonlisted species. Furthermore, EPA will continue
toconsult onthe approved State objectives, consistent with ESA Section 7(d). EPA’s belief
is based onthe following: 1. California’s EPA-approved marine aquatic life cyanide objectives for San Francisco Bayare protective
of the designated usesin San Francisco Bay, and areconsistent 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
toderive its objectives. 3. EPA’s 2008 approval of California’s marine aquatic life cyanide objectives

in San Francisco Bay is subject tothe outcomeof ongoing ESA consultation. While consultation

is ongoing, EPAhas already determined that. the approval will notcause anyirreversible

orirretrievable commitment of resourceswithin 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

tobe needed to comply with ESA Section 7(a)(2). To date, no impacts of concernhave been identified for those species which either reside in orrely onthe 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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